SETTLEMENT AGREEMENT
Exhibit 10.1
AND
MUTUAL RELEASE
This
Settlement Agreement and Mutual Release ("Agreement") is entered into by and
between Xxxxxxx X. Xxxxxx (“Xxxxxx”), Helix Wind, Inc., a Nevada corporation
(“Helix Wind”), Xxx Xxxxxxx (“Xxxxxxx”) and Xxxxx Xxxxxxxxxx
(“Xxxxxxxxxx”). As used herein, the term “the Parties” shall be used
to refer to Xxxxxx, Helix Wind, Xxxxxxx, and Xxxxxxxxxx jointly.
WHEREAS:
X. Xxxxxx
and Helix Wind entered into an Employment Agreement dated June 1, 2008 for the
employment of Xxxxxx by Helix Wind.
B. On
or about July 10, 2009 Xxxxxx filed an action against Helix Wind. Xxxxxxx and
Xxxxxxxxxx in the San Diego Superior Court, Central District, Case No.
00-0000-00000000 entitled Xxxxxxx Xxxxxx v. Helix Wind, et
al. alleging, inter
alia, breach of the Employment Agreement (“the Action”).
C. On
or about November 6, 2009 Helix filed a cross-complaint alleging,
inter alia, breach of the Employment Agreement, naming Xxxxxx as
cross-defendant. Xxxxxx’x complaint and all amendments thereto, and
Helix Wind’s related cross-complaint in Case No. 00-0000-00000000 entitled Xxxxxxx Xxxxxx v. Helix Wind, et
al. shall hereinafter be referred to collectively as the
“Action.”
D. Each
of the Parties desire to fully and finally resolve all claims that they have or
may have against any of the Parties.
WHEREFORE,
in consideration of the foregoing Recitals and the agreements and promises
hereinafter set forth and for good and valuable consideration, the Parties
hereto agree as follows:
1.00 PAYMENT. Helix
Wind warrants and represents that it reasonably anticipates that it will be
receiving funds of at least $2,000,000.00 (two million dollars) from third party
investors in the near future (hereinafter referred to as “the Financing”) and
Helix Wind agrees that it will pay to Xxxxxx the sum of $150,000.00 (the
“Settlement Payment”) no later than January 15, 2010, or within seven days of
its receipt of the Financing, whichever occurs first. The Settlement
Payment shall be made by two checks, as follows: the first check for
$93,000.00 (ninety three thousand dollars) payable to “Law Office of Xxxx Xxxx
Client Trust Account,” shall be delivered to the Law Office of Xxxx Xxxx at 0000
Xxxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx, XX 00000; the second check in the amount
of $57,000.00 shall be made payable to “Xxx Xxxxxxx” and delivered to Xxx
Xxxxxxx at the location of his choosing. In the event that Helix Wind fails to
deliver payment of the Settlement Payment to the Law Office of Xxxx Xxxx prior
to January 15, 2010, then this Agreement shall be null and void ab initio and the Lock-Up
Agreement attached hereto as Exhibit “1” shall be of no force or
effect.
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2.00 CONDITIONS
PRECEDENT. This
Agreement shall have no force or effect unless and until the following document,
attached hereto and incorporated herein by reference, is agreed upon and signed
by the parties named therein:
A. Lockup
Agreement (Exhibit “1”).
3.00 RELEASE. In consideration of the
payments of the amounts referred to herein and the other promises and
considerations set forth in this Agreement, Xxxxxx, Helix Wind, Xxxxxxx and
Xxxxxxxxxx do hereby mutually release, acquit and forever discharge each other
from any and all claims, demands, damages, causes of action or suits in equity,
of any kind whatsoever, at common law, statutory or otherwise, which they have
or may have, known or unknown, now existing or that might arise hereafter that
were or could have been asserted in the Action, except for the promises and
conditions set forth in this Agreement.
4.00 WAIVER OF
SECTION 1542. As to the matters
released herein, the Parties expressly waive any and all rights against one and
other under Section 1542 of the California Civil Code which
provides as follows:
"A
GENERAL RELEASE DOES NOT EXTEND TO THE CLAIMS WHICH THE CREDITOR DOES NOT KNOW
OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM MUST HAVE MATERIALLY EFFECTED HIS SETTLEMENT WITH THE
DEBTOR."
5.00 FILING OF
DISMISSALS. The Parties agree that:
A. After
receipt of the Settlement Payment, Xxxxxx shall cause its attorneys to execute
and file a request for dismissal with prejudice of its complaint in the Action
against Helix Wind, Xxxxxxx and Xxxxxxxxxx.
B. After
the Complaint is dismissed, Helix Wind shall cause its attorneys to execute and
file a request for dismissal with prejudice of its cross-complaint against
Xxxxxx in the Action.
6.00 NO
ADMISSION. In entering into this
Agreement, no party herein is admitting the sufficiency of any claims,
allegations, assertions, contentions, or positions of any other party, nor the
sufficiency of the defenses to any such claims, allegations, assertions,
contentions, or positions. The Parties hereto desire to resolve the
action in an amicable fashion, and pursuant to Code of Civil
Procedure Section 877, the Parties have entered into this Agreement in
good faith.
7.00 GENERAL
TERMS AND CONDITIONS. The Parties to this
Agreement, and each of them, acknowledge and agree that:
i. this
Agreement and its reduction to final form is the result of extensive good faith
negotiations between the Parties through their respective counsel;
ii. said
counsel have carefully reviewed and examined this Agreement for execution by
said Parties, or any of them; and
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iii. any
statute or rule of construction that ambiguities are to be resolved against the
drafting party should not be employed in the interpretation of this
Agreement.
iv. Paragraph
headings are for reference only and shall not affect the interpretation of
any
paragraph hereto.
8.00 EFFECTS
ON AGENTS. The terms of this Agreement shall bind and inure to
the benefit
of Plaintiffs, Defendants, and each of their respective agents, officers,
directors, parent companies, subsidiaries, affiliates, divisions, predecessors,
successors, transferees, representatives, employees, heirs, devisees, legatees
and assigns, as applicable.
9.00 ENTIRE
INTEGRATED AGREEMENT. This Agreement constitutes the entire
and sole agreement of the parties hereto and constitutes a written integration
of all negotiations between the parties relating to the subject matter hereof,
incorporating each and every representation, promise or warranty, whether oral
or written, between the parties with respect hereto. No party has
made any representation, promise or warranty to the other with respect to the
matters addressed herein except as expressly set forth in this
Agreement. The parties hereto agree to execute and deliver any and
all additional papers, documents, and other assurances, and shall do any and all
acts and things reasonably necessary in connection with the performance of their
obligations hereunder and to carry out the intent of the parties to this
Agreement.
10.00 REPRESENTATIONS
REGARDING OWNERSHIP OF CLAIMS. Each party represents,
covenants and warrants that it is the sole and lawful owners of any and all
claims, matters, and causes of action which are the subject of this Assignment,
and that they have not previously assigned, hypothecated or otherwise
transferred any of the claims assigned herein.
11.00 AUTHORITY
TO EXECUTE. Each of the individuals who execute this Agreement
individually warrants and represents that such individual has the ability, right
and authority to execute this Agreement on behalf of the person or entity for
whom the individual executes this Agreement.
12.00 ADVICE OF
COUNSEL. The Parties represent and warrant that they have had
advice of counsel of their own choosing in the negotiations for and the
preparation of this Agreement, and that they have read this Agreement, or had
the same read to them by counsel, and that they have had this Agreement fully
explained to them by their counsel, and they are fully aware of the Agreement's
legal effect. This Agreement is to be construed fairly and not in
favor of or against any party, regardless of which party or parties drafted or
participated in the drafting of its terms.
13.00 GOVERNING
LAW. This Agreement is made and entered into in the County of
San Diego, State of California and shall be governed by and construed in
accordance with the laws of the State of California.
14.00 AMENDMENTS
IN WRITING. It is expressly understood and agreed that this
Agreement may not be altered, amended, modified or otherwise changed in any way
whatsoever, except by a writing executed by all of the parties to this
Agreement, or their authorized representatives.
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15.00 COUNTERPART SIGNATURES AND MULTIPLE ORIGINALS. The parties agree that this Agreement may be executed in one or more counterparts, all of which, taken together, shall constitute one and the same instrument.
IN
WITNESS WHEREOF, this Agreement has been executed by each of the parties on the
date shown above.
| DATED: December 11, 2009 | /s/ Xxxxxxx Xxxxxx |
| Xxxxxxx Xxxxxx | |
| DATED: December 11, 2009 | /s/ Xxx Xxxxxxx |
| Helix Wind, Inc. | |
| Xxx Xxxxxxx, CEO | |
| DATED: December 11, 2009 | /s/ Xxx Xxxxxxx |
| Xxx Xxxxxxx | |
| DATED: December 11, 2009 | /s/ Xxxxx Xxxxxxxxxx |
| Xxxxx Xxxxxxxxxx |
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EXHIBIT
“1” TO SETTLEMENT AGREEMENT AND MUTUAL RELEASE
LOCK UP
AGREEMENT
In consideration of the performance of
the obligations by Helix Wind, Corp. as set forth in the Settlement Agreement
and Mutual Release (to which this Lock-Up Agreement is attached), the
undersigned, Xxxxxxx X. Xxxxxx, agrees that he will not, directly or indirectly,
issue, offer, agree or offer to sell, sell, grant an option for the purchase or
sale of, transfer, pledge, assign, hypothecate, distribute or otherwise encumber
or dispose (collectively, “Sale”) of any of the
7,820,662 shares of the
common stock of the Helix Wind, Corp. (the “Company”), including
without limitation, options, rights, warrants or other securities underlying,
convertible into, exchangeable or exercisable for or evidencing any right to
purchase or subscribe for any common stock (whether or not beneficially owned by
the undersigned), or any beneficial interest therein, except for the Sale of an
aggregate of 105,000 shares of the Company each 90-day period starting February
11, 2010, and ending February 10, 2011, and 120,000 shares each 90-day period
starting February 11, 2011, and ending February 10, 2012.
Notwithstanding the foregoing, the
following transfers are permitted, provided the transferee agrees in writing
prior to the transfer to be bound by the terms of this Agreement: (i) a transfer
on death by will or intestacy; (ii) a transfer to a member of the undersigned's
immediate family; (iii) a transfer to a family trust; or (iv) a transfer
resulting from the enforcement of a bona fide pledge entered into by the
undersigned prior to the date hereof. For purposes of this paragraph,
"immediate family" shall mean the spouse, lineal descendant, father, mother,
brother or sister of the transferor.
In order to enable the enforcement of
this agreement, the undersigned hereby consents to the placing of legends on
certificates in the form below and/or stop orders with the transfer agent of the
Company with respect to the shares and the Company and its transfer agent are
hereby authorized to decline to make any transfer of securities if such transfer
would constitute a violation or breach of this agreement.
THE
SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS OF A LOCK-UP
AGREEMENT, AS THE SAME MAY BE AMENDED, MODIFIED OR SUPPLEMENTED, A COPY OF WHICH
IS ON FILE AT THE OFFICES OF THE ISSUER AND WILL BE FURNISHED BY THE ISSUER TO
THE HOLDER HEREOF UPON WRITTEN REQUEST. SUCH AGREEMENT PROVIDES,
AMONG OTHER THINGS, FOR THE GRANTING OF CERTAIN RESTRICTIONS ON THE SALE,
TRANSFER, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF THE SHARES REPRESENTED
BY THIS CERTIFICATE. BY ACCEPTANCE OF THIS CERTIFICATE, EACH HOLDER
HEREOF AGREES TO BE BOUND BY THE PROVISIONS OF SUCH AGREEMENT. THE
ISSUER RESERVES THE RIGHT TO REFUSE TO TRANSFER THE SHARES REPRESENTED BY THIS
CERTIFICATE UNLESS AND UNTIL THE CONDITIONS TO TRANSFER SET FORTH IN SUCH
AGREEMENT HAVE BEEN FULFILLED.
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Any obligations of the undersigned
under this agreement shall be binding upon the heirs and personal
representatives of the undersigned.
This
Agreement shall become effective only upon the occurrence of each of the
following events: (i) the entry into a lock up agreement by The Hyperion
Business Services, LLC., on substantially identical terms to this Agreement,
covering all of the shares of the Company's common stock beneficially owned held
by that entity and providing for the release of shares on the same basis and in
the same amount as set forth therein and (ii) the Company's closing of a
financing transaction resulting in gross proceeds of not less than $5 million on
or before February 10, 2010.
The provisions contained herein shall
terminate and have no further force and effect on the earlier of: (i) the
termination of the Fidelis Lock Up, (ii) the date that any "person" (as defined
in Section 13(d) and 14(d) of the Securities Exchange Act of 1934) acquires
beneficial ownership of voting securities of the Company, of securities
representing more than fifty percent (50%) of the combined voting power of the
Company's then outstanding securities; (iii) the consummation of a
reorganization, merger or consolidation or sale or other disposition of
substantially all of the assets of the Company unless, in each case, the
beneficial owners of outstanding voting securities of the Company immediately
prior to transaction continue to beneficially own, directly or indirectly, more
than fifty percent (50%) of the combined voting power of the then outstanding
voting securities of the Company; (iv) approval by the stockholders of the
Company of a complete liquidation or dissolution of the Company; or (v) February
11, 2012.
This Agreement is being entered into by
the undersigned with the understanding that the Hyperion Lock Up will remain in
effect during its term. The Company shall provide the undersigned
with written notice of any amendment or waiver of observance of any term of the
Hyperion Lock Up (either generally or in a particular instance and either
retroactively or prospectively), and the undersigned shall have the right, in
his sole discretion, to have the amendment or waiver apply to this lock up
agreement on the same basis.
Any notices required or permitted by
this Agreement shall be deemed given when delivered personally or sent by one
party to the other by facsimile or in writing by registered or certified mail,
return receipt requested, addressed as follows:
Company:
Helix
Wind, Inc.
0000
Xxxxxxxxxx Xxxxxx
Xxx
Xxxxx, Xxxxxxxxxx 00000
Attention: Xxx
Xxxxxxx
Facsimile
No.: (000) 000-0000
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Undersigned:
Xxxxxxx
X. Xxxxxx
C/O Law
Offices of Xxxxxxx X. Xxx
0000
Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx
Xxxxx, Xxxxxxxxxx 00000
with a
copy (which shall not constitute notice) to:
Law
Offices of Xxxxxxx X. Xxx
0000
Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx
Xxxxx, Xxxxxxxxxx 00000
Any
notice pursuant to this Agreement shall be deemed to be delivered, given, and
received for all purposes as of the date received; and provided further, that
(i) mail sent via Certified Mail, Return Receipt Requested, certified fee
and normal postage prepaid, shall be deemed to have been received on the earlier
of actual receipt thereof or the date of refusal or inability to deliver,
indicated on the Receipt for Certified Mail and (ii) mail sent via Federal
Express or other recognized overnight courier shall be deemed delivered one (1)
business day after deposit with Federal Express or such other recognized
overnight courier service, charges prepaid. The above addresses may
be changed from time to time by giving notice thereof in the manner provided
herein.
The rights and obligations of the
parties hereunder and the interpretation of this Agreement shall be governed by
the laws of the State of California (without regard to the principles of
conflicts of law) applicable to contracts executed and to be performed in such
state. The parties hereto consent to the personal jurisdiction of the
courts of the State of California in connection with any claim or dispute
arising in connection with the Agreement. Any action or proceeding
seeking to enforce any provision of, or any right arising out of this Agreement
may be brought only the courts of the State of California, County of San
Diego.
Dated: November
30, 2009
| Signature: | |
| /s/ Xxxxxxx X. Xxxxxx | |
| Xxxxxxx X. Xxxxxx |
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