SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This
Settlement Agreement and Mutual Release (“Agreement”) is entered into by and
between Dough Bros., Inc., Xxxx Xxxxx, Xxxx Xxxxx, and Xxxx Xxxxx (individually
and collectively “Dough Bros.”) and Edesia Emprise, LLC, Cono Italiano, Inc.
(“Cono Italiano”), Xxxxxxxx Xxxxx, Xxxx Xxxxxx and Xxxxxx Xxxxxxx (individually
and collectively “Edesia”). This Agreement shall be effective October 22, 2009
(the “Effective Date”).
Recitals
1. In
or about January, 2009, Xxxxxx’x Bakery entered into an agreement with Edesia to
become a third-party manufacturer of pizza cones for Edesia. On or about March
8, 2009, that agreement was amended to name the newly-incorporated entity, Dough
Bros. The January, 2009, agreement and its March, 2009, amendment shall be
referred to in this Agreement as the “Contract.”
2. Pursuant
to the Contract, Edesia leased certain equipment to Dough Bros. for $1.00 per
month, a complete and accurate list of which is attached as Exhibit A. The
equipment listed in Exhibit A shall be referred to in this Agreement as the
“Equipment.”
3. Dough
Bros. contends that it undertook certain actions pursuant to and in furtherance
of the Contract, including acquiring space, constructing a walk-in freezer, and
manufacturing and shipping pizza cones to Edesia. Dough Bros. contends that it
has not been paid in full for the pizza cones it manufactured and Shipped to
Edesia.
4. Both
parties deny any and all liability resulting from the Contract or
otherwise.
5. Dough
Bros. and Edesia desire to terminate the Contract and to otherwise fully and
finally end their business relationships.
6. In
order to avoid the burden and expense of litigation, the parties to this
Agreement now desire to mutually release all claims they may have or could
assert against each other under the Contract or otherwise as of the Effective
Date of this Agreement.
Agreement
In
consideration of the matters set forth in the Recitals, the terms, covenants and
promises contained in this Agreement, and the actions taken pursuant thereto,
and all other good and valuable consideration, the sufficiency of which is
hereby acknowledged, Dough Bros. and Edesia (the “Parties”) agree as
follows:
1. Payment to Dough Bros; Promissory
Note. Dough Bros. shall execute this Agreement and deliver the signatures
to counsel for Edesia, Xxxxx X. Xxxxxxx, Xxxxx & Xxxxxxx, 000 X. 00xx Xxxxxx,
Xxxxx 000, Xxxxxxxxxxxx, XX 00000. Within three business days of Dough Bros.’s
delivery of the fully-executed Agreement, Edesia shall pay to Dough Bros. Forty
Thousand One Hundred Seventy-five Dollars and Twenty Cents ($40,175.20) (the
“Payment”). The Payment shall be wired to the Trust Account for Xxxxxxx XxXxxx
LLP and held in such Trust Account until released pursuant to paragraph 5 below.
In addition, Cono Italiano shall issue a promissory note in favor of Dough Bros.
for Three Thousand One Hundred Twenty-five and no/100 Dollars ($3,125.00) (the
“Note”). That Note shall be personally guaranteed by Xxxxxxxx Xxxxx, Xxxx
Xxxxxx, and Xxxxxx Xxxxxxx. Although each of Brown, Jacobs, and Fantini will be
jointly and severally liable for repayment of the Note if not paid by Cono
Italiano, Dough Bros. must make a good faith effort to collect from Xxxxx for at
least thirty (30) calendar days before commencing collection proceedings against
Xxxxxx and/or Fantini.
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2. Release by Dough Bros. Dough
Bros., for itself, themselves and for its, his or their predecessors,
successors, assigns, parents, members and affiliates, and its and their past and
present shareholders, directors, officers, managers, employees, attorneys,
advisors, representatives and agents, including but not limited to Xxxx Xxxxx,
Xxxx Xxxxx and Xxxx Xxxxx (all of them individually and in such official
capacities as each may hold) (collectively, “Dough Bros. Releasors”) hereby
RELEASE and FOREVER DISCHARGE Edesia and its, his, her or their predecessors,
successors, assigns, parents, members and affiliates and its or their past and
present shareholders, directors, officers, managers, employees, attorneys,
advisors, representatives and agents, including but not limited to Xxxxxxxx
Xxxxx, Xxxx Xxxxxx, and Xxxxxx Xxxxxxx (all of them individually and in such
official capacities as each may hold) (collectively, “Edesia Releasees”), of and
from any and all claims (including therein all actions, rights, causes of
action, proceedings, demands, accounts, damages, debts, loans, liens, security
interests, costs, expenses, attorneys’ or other fees, liabilities, contracts,
judgments, obligations, complaints or suits), of any kind or nature whatsoever,
whether known or unknown, asserted or unasserted, intentional or unintentional,
and arising out of anything directly or indirectly said, done or omitted on or
before the Effective Date of this Agreement.
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3. Release by Edesia. Edesia, for
itself, themselves and for its, his, her or their predecessors, successors,
assigns, parents, members and affiliates, and its and their past and present
shareholders, directors, officers, managers, owners, members, employees,
attorneys, advisors, representatives and agents, including but not limited to
Xxxxxxxx Xxxxx, Xxxx Xxxxxx and Xxxxxx Xxxxxxx (all of them individually and in
such official capacities as each may hold) (collectively, “Edesia Releasors”)
hereby RELEASE and FOREVER DISCHARGE Dough Bros. and its, his or their
predecessors, successors, assigns, parents, members and affiliates and its or
their past and present shareholders, directors, officers, managers, employees,
owners, members, attorneys, advisors, representatives and agents, including but
not limited to Xxxxxx’x Inc., Xxxx Xxxxx, Xxxx Xxxxx, and Xxxx Xxxxx (all of
them individually and in such official capacities as each may hold) (“Dough
Bros. Releasees”), of and from any and all claims (including therein all
actions, rights, causes of action, proceedings, demands, accounts, damages,
debts, loans, liens, security interests, costs, expenses, attorneys’ or other
fees, liabilities, contracts, judgments, obligations, complaints or suits), of
any kind or nature whatsoever, whether known or unknown, asserted or unasserted,
intentional or unintentional, and arising out of anything directly or indirectly
said, done or omitted on or before the Effective Date of this
Agreement.
4. Acknowledgement of No Contractual
Relationship. The Parties mutually understand, acknowledge and agree
that, as of and after the Effective Date of this Agreement, they shall have no
contractual or other relationship with one another. The Parties expressly agree,
however, that the Cono Italiano Inc./Edesia Emprise LLC Confidentiality And
Loyalty Agreements executed by Xxxx Xxxxx, Xxxx Xxxxx, and Xxxxxxx Xxxxx,
attached hereto as Exhibit C (collectively, “Confidentiality And Loyalty
Agreements”), remain in effect to the extent that they prohibit Xxxx Xxxxx, Xxxx
Xxxxx, and/or Xxxxxxx Xxxxx from disclosing any confidential and/or proprietary
information obtained during the Parties’ business relationship. Any other
agreement between or among the Parties, or claimed agreement or understanding,
whether written or unwritten, between the parties is hereby rendered null, void
and of no further effect.
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5. Return of Equipment to Edesia.
As of the date that this Agreement has been signed, Edesia and Dough
Bros. have met at Dough Bros.’ place of business in order for Edesia to inspect
the Equipment. By signing this Agreement, Edesia agrees that the Equipment is in
acceptable condition. Additionally, by signing this Agreement, Edesia agrees to
the release of the Payment from the Xxxxxxx XxXxxx Trust Account to Dough Bros
and to the delivery of the Note to Dough Bros. By signing this Agreement, Dough
Bros. agrees that it has reached an acceptable arrangement with Edesia for the
uninstallation and removal of the Equipment, and Dough Bros. further agrees that
Edesia may remove the Equipment from its premises and that Dough Bros. has no
further claim against, or related to, the Equipment.
6. Confidentiality. It is further
understood and agreed that the Parties and their attorneys shall keep
confidential this Agreement and its contents and shall not disclose the
Agreement, its existence, or terms thereof to any person, corporation, or other
entity other than the Parties and their respective counsel, except to the extent
necessary for the Parties to receive financial and/or tax advice. In such case,
the Parties agree that they will advise anyone with whom they share information
regarding this Agreement in the course of seeking financial and/or tax advice of
the confidential nature of this Agreement.
7. Attorneys’ Fees. If
any party knowingly or intentionally violates the terms described in paragraphs
1, 5, 6, and/or 8 of this Agreement, in addition to other available remedies the
other party shall be entitled to, the prevailing party in any enforcement action
shall be entitled to recover from the other party all costs incurred in
connection with such enforcement action, including but not limited to reasonable
attorneys’ fees.
8. Non-Disparagement. The Parties
shall refrain from making, or causing to be made, any disparaging or derogatory
statements, either orally or in writing, about one another (including affiliated
persons) in public, and from otherwise communicating for public dissemination
any information damaging or potentially damaging to the business or reputation
of the other. If any party knowingly or intentionally violates the terms of this
paragraph 8, in addition to other available remedies the other party shall be
entitled to injunctive relief to enforce such terms against the breaching party.
The prevailing party in any such injunctive proceedings shall be entitled to
recover from the other party all costs incurred in connection with such
enforcement action, including but not limited to reasonable attorneys’
fees.
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9. No Admission of Liability.
This Agreement is entered into in order to resolve and settle all claims
and potential claims between the Parties. Nothing in this Agreement or in the
conduct of the Parties arising from this Agreement shall be considered an
admission of liability of any kind, and the Parties expressly deny any and all
such liability.
10. Governing Law. This Agreement
shall be governed by and construed in accordance with the laws of the State of
Indiana, without reference to its choice of law principles.
11. Integration. This Agreement
and its Exhibits contain the entire Agreement between the Parties, and fully
supersede any and all prior agreements or understandings between the Parties
pertaining to the subject matter hereof, and no statements, promises or
inducements made by or on behalf of a party or counsel for a party that are not
contained herein shall be binding. No amendment or modification to this
Agreement shall be effective unless and until agreed to in writing and signed by
both the party against whom the amendment or modification is sought to be
enforced and by its attorneys to indicate their review and approval as to
form.
12. Construction of Terms/Severability.
If any provision of this Agreement or any construction or application of
any provision of this Agreement is held to be unenforceable or invalid for any
reason, the validity of all the remaining provisions shall not be affected. The
rights or obligations of each of the Parties shall be construed and enforced as
if the Agreement did not contain such invalid provision or, as the case may be,
invalid construction or application of such provision; provided, however, that
such resulting construction and enforcement shall be generally consistent with
the basic purpose of this Agreement. For this purpose, “provision” refers to any
word, phrase, part, term or other portion of this Agreement.
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13. Negotiated Agreement, Attorney
Consultation. Each of the Parties has read this Agreement, has consulted
with an attorney of his, her, or its own selection concerning this Agreement,
and knows and understands its terms and contents. In view of such reading,
counseling and understanding, and because each party also has had the
opportunity to negotiate fully the terms of this Agreement, its terms shall be
interpreted and construed without any presumption or inferences against a party
causing this Agreement or any part of it to be drafted.
14. Authority to Execute Agreement.
Each person signing this Agreement on behalf of a party or parties
represents and warrants that he or she is duly and fully authorized to enter
into and execute this Agreement and that all of its terms are binding
commitments on behalf of himself and the party for which he or she purports to
act.
15. Binding on Successors, Etc.
This Agreement shall inure to the benefit of and be binding upon the
heirs, administrators, successors and assigns of each of the
Parties.
16. No Assignment or Transfer of Claims.
The Parties each warrant and represent that no other person or entity has
any interest in the matters addressed in this Agreement, and that he, she, or it
has not assigned or transferred, or purported to transfer, to any person or
entity, any claim or any portion thereof or interest therein.
17. Multiple
Counterparts, Facsimile Signatures. This Agreement may be executed in
multiple counterparts, each of which shall be deemed to be an original, and all
such counterparts together shall constitute one Agreement. A facsimile signature
shall be equivalent to and as binding as an original signature.
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IN WITNESS WHEREOF, the
Parties have executed this Agreement on the dates indicated below.
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DOUGH
BROS., INC.
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By:
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on
October 22, 2009
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Title:
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SECRETARY
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XXXX
XXXXX
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on
October 22,
2009
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XXXX
XXXXX
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on
October 22,
2009
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XXXX
XXXXX
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on
October 22,
2009
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EDESIA
EMPRISE, LLC
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By:
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on
October 22, 2009
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Title:
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Authorized Xxxxxx | |
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XXXX
ITALIANO, INC.
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By:
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on
October 22, 2009
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Title:
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CEO
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XXXX
XXXXXX
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on
October 22,
2009
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XXXXXX
XXXXXXX
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on
October 22,
2009
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XXXXXXXX
XXXXX
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on
October 22,
2009
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REVIEWED
AND APPROVED AS TO FORM:
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Xxxxx
X. Xxxxxxx, Attorney for Xxxxxx
Xxxxx
& Xxxxxxx LLP
000
Xxxx 00xx
Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx,
XX 00000
(317)
569-4657
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Xxxxxxx
X. Xxxxxxxxx, Attorney
for
Dough Bros.
Xxxxxxx
XxXxxx LLP
2700
Market Tower
00
Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxxxx,
XX 00000
(317)
635-8900
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EXHIBIT
A
Equipment
List
l)
Cono Machine 007 08
2) 1 Automatic Spiral
Mixer 2 Speeds C-062.1 .067
3) 1 Dell Oro Shaper
F352.1.035
4) 1 Dell Oro Divider
F460.4.126
5) 1 Dell Oro Sheeter
F330.2.027
6) Auto Cone Filling
Machine
7) Xxxxxxxxx Xxxx
Compressor 08812220060 item#2475n7.5
8) 4 rolling
stainless steel carts
9) 36 Sheet with
Holes Door Coni (This is the “pans with holes in them” that fit item
8.
10) 1 Packer Air
Adjustable (This is attached to (or part of) item 7)
11) Referigerated Air
Dryer item# 3YA53 (This is attached to (or part of) item
7)
12) Filter Air Line
3/4 In #4ZL51 (This is attached to (or part of) item
7)
13) Flexible Metal
Hose 3/4 IN DIA,I8 IN L #G075CM180 (This is attached to (or part of) item
7)
14) 12 Magna Rolling
Racks
15) 1 Water
Dozer
16) 3 Rubber Maid Cone
Carts
17) 1 Cone
Warmers
18) 1 Desk (composed
of 2 black file cabinets)
19) 1
Chair
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