SETTLEMENT AGREEMENT AND MUTUAL RELEASE
THIS SETTLEMENT AGREEMENT AND MUTUAL RELEASE ("Agreement") is made and
entered into on April 11, 2000 among PATH 1 NETWORK TECHNOLOGIES INC., a
Delaware corporation ("Path 1"), XXXXXXX X. XXXXXX, XXXXXX X. XXXXXXX, XXXXXXXX
XXXXX, XXXX XXXXXXXX, XXXXXXX XXXXX, XXXXX XXXXX, XXXX XXXXX and XXXXX & XXXXX,
who agree as follows:
1. RECITALS. This Agreement is made with reference to the
following facts:
1.1 On September 20, 1999, Path 1 filed, and there is now
pending, a lawsuit against Xxxxxxx Xxxxx, Xxxxx Xxxxx, Xxxx Xxxxx, Xxxxx & Xxxxx
(collectively, the "Xxxxx Parties") and Xxxxxxxx Xxxxxx in the San Diego County
Superior Court, Case No. GIC 735665 (the "Lawsuit"). The Lawsuit relates in part
to 1,655,000 shares of Path 1 Class A Common Stock issued to Xxxxx Xxxxx and
Xxxx Xxxxx (the "Xxxxx Path 1 Shares"). Xxxx Xxxxx has specially appeared to
contest personal jurisdiction over her in the Lawsuit.
1.2 On November 9, 1999, Xxxxxxx Xxxxx and Xxxxx Xxxxx,
and Xxxxxxxx Xxxxxx, filed, and there is now pending, a lawsuit against Path 1
in the Delaware Court of Chancery in and for New Castle County (Civil Action No.
17562) for indemnification and advancement of defense expenses with respect to
the Lawsuit (the "Delaware Action").
1.3 Xxxxx Xxxxx and Xxxx Xxxxx are renegotiating an
agreement to sell all of their Xxxxx Path 1 Shares to Xxxxxx Technology
Corporation.
1.4 The parties desire to settle any and all disputes
presently existing between them in accordance with the provisions of this
Agreement.
2. CLOSING. The closing under this Agreement ("Closing") shall be
deemed to have occurred when (a) this Agreement has been duly executed and
delivered by all of the parties hereto and (b) all of the other conditions
listed in Sections 2.1 and 2.2 below have been satisfied or waived. All actions
to be taken and all documents to be executed and delivered by all parties at or
before the Closing shall be deemed to have been taken and executed
simultaneously at the Closing and no such action shall be deemed taken nor any
such documents executed or delivered until all have been taken, executed and
delivered, unless waived by the party benefited by any condition, or agreed
otherwise by the parties in writing on or before the Closing. The parties agree
to use their best efforts to satisfy the conditions to Closing. If the Closing
does not occur on or before April 11, 2000 or such later date as Path 1 and the
Xxxxx Parties may agree to in writing, then at any time thereafter, but before
the Closing occurs, Path 1 or the Xxxxx Parties, if not then in breach or
default hereunder, may cancel and terminate this Agreement by giving written
notice thereof to the other parties.
2.1 PATH 1 CONDITIONS. The obligation of Path 1 to
perform its executory undertakings hereunder and to close are, at the option of
Path 1, subject to the following conditions precedent:
(a) The representations and warranties of the
Xxxxx Parties contained herein shall be repeated at and as of the Closing and
shall be true and correct both with respect to the time when made and to the
time when repeated (except to the extent of changes caused by the transactions
herein contemplated), and the Xxxxx Parties shall have performed and complied
with all agreements and conditions required hereunder to be performed or
complied with by them prior to or at the Closing.
(b) Xxxxxx Technology Corporation and the Xxxxx
Parties shall have entered into a renegotiated agreement or new agreement for
the purchase and sale of the Xxxxx Path 1 Shares on terms and conditions
acceptable to Xxxxxx Technology Corporation and the Xxxxx Parties, each in their
sole discretion.
(c) The Delaware Action, in respect of Path 1
and the Xxxxx Parties, shall have been dismissed with prejudice pursuant to the
provisions of this Agreement.
(d) Path 1's board of directors shall have
approved the execution and delivery of this Agreement by Path 1 and the
consummation by Path 1 of the transactions contemplated hereby.
(e) The Xxxxx Parties shall have executed and
delivered to Path 1 all of the items described in Section 2.4 below.
(f) Xxxx Xxxxx shall have executed and delivered
to Path 1 an executed written consent action counterpart to be prepared by Path
1 and dated as of or before March 22, 1999, approving the amendment of Path 1's
certificate of incorporation to, among other things, create Class B Common
Stock; together with a written representation that she had in fact executed and
delivered to Path 1, before April 12, 1999, a written consent action counterpart
of like tenor.
2.2 XXXXX PARTIES CONDITIONS. The obligation of the Xxxxx
Parties to perform their executory undertakings hereunder and to close are, at
the option of the Xxxxx Parties, subject to the following conditions precedent:
(a) The representations and warranties of Path 1
contained herein shall be repeated at and as of the Closing and shall be true
and correct both with respect to the time when made and to the time when
repeated (except to the extent of changes caused by the transactions herein
contemplated), and Path 1 shall have performed and complied with all agreements
and conditions required hereunder to be performed or complied with by Path 1
prior to or at the Closing.
(b) Xxxxxx Technology Corporation and the Xxxxx
Parties shall have entered into a renegotiated agreement or new agreement for
the purchase and sale of the Xxxxx Path 1 Shares on terms and conditions
acceptable to Xxxxxx Technology Corporation and the Xxxxx Parties, each in their
sole discretion.
(c) The Lawsuit, in respect of Path 1 and the
Xxxxx Parties, shall have been dismissed with prejudice pursuant to the
provisions of this Agreement.
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(d) Path 1's board of directors shall have
approved the execution and delivery of this Agreement by Path 1 and the
consummation by Path 1 of the transactions contemplated hereby.
(e) There shall have been no adverse change in
the business or financial condition of Xxxxxx Technology Corporation between the
date hereof and the Closing.
(f) Path 1 shall have executed and delivered to
the Xxxxx Parties all of the items described in Section 2.3 below.
2.3 DELIVERIES BY PATH 1. Path 1 shall deliver or cause
to be delivered to the Xxxxx Parties at the Closing:
(a) A fully executed counterpart of a Dismissal
With Prejudice of all causes of action against the Xxxxx Parties in the Lawsuit.
(b) Certified resolutions of Path 1's board of
directors or other evidence reasonably acceptable to the Xxxxx Parties of Path
1's authority to execute, deliver and perform this Agreement.
(c) Such other instruments and documents as may
be reasonably requested by the Xxxxx Parties or their counsel in order to
effectuate the provisions of this Agreement.
2.4 DELIVERIES BY THE XXXXX PARTIES. The Xxxxx Parties
shall deliver or cause to be delivered to Path 1 at the Closing:
(a) A fully executed counterpart of a Dismissal
With Prejudice of all of their causes of action against Path 1 in the Delaware
Action.
(b) Such other instruments and documents as may
be reasonably requested by Path 1 or its counsel in order to effectuate the
provisions of this Agreement.
3. INDEMNITY.
3.1 Effective as of the Closing, the Xxxxx Parties shall
have no liability for and are hereby discharged of, and Path 1 shall assume and
be solely liable for and shall protect, defend, indemnify and hold the Xxxxx
Parties free and harmless from and against, any and all obligations,
liabilities, taxes, claims, demands, losses, costs, expenses, damages,
judgments, amounts paid in settlement, liens, encumbrances, security interests,
recoveries and deficiencies, attorneys' fees and disbursements, directly or
indirectly arising out of, resulting from or relating in any way to (a) the
business or activities of Path 1 including, by way of example and not by
limitation, claims of any kind now or hereafter asserted by Xxxxxxxx Xxxxxx,
Jyra Research Inc. and/or Jyra Research Limited (whether by way of direct
action, derivative action, class action, individual action or otherwise), (b)
any liability or obligation of Path 1 of any kind, whether arising from events
that occurred on or before the date of this Agreement or that occur after the
date of this Agreement, (c) the fact that any of the Xxxxx Parties is or was a
director, officer, shareholder, employee, agent, attorney, consultant, advisor,
representative or person in control of
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Path 1, or (d) any acts, occurrences or matters relating to Path 1 that took
place before the date of this Agreement.
3.2 If any Xxxxx Party so requests, Path 1 shall have the
obligation to assume, undertake and conduct the defense or settlement of any
such suit, claim or demand described in Section 3.1, including (a) the
obligation to employ separate and independent legal counsel selected by any
Xxxxx Party, subject to Path 1's approval which shall not be unreasonably
withheld, and to pay all fees and expenses related thereto as such fees and
expenses are incurred and (b) the power to litigate or settle the same, provided
that the Xxxxx Parties shall have the right to review and approve or disapprove
any settlement pertaining to them unless (i) the sole relief provided is a
monetary payment that is paid in full by Path 1, (ii) there is no finding or
admission of any liability, wrongdoing, misconduct or violation of any kind or
other grounds for the basis of any other claims that may be made against any
Xxxxx Party and (iii) no Xxxxx Party will have any obligation or liability of
any kind with respect to such settlement. Approval by the Xxxxx Parties of any
settlement, if required, shall not be unreasonably withheld. The Xxxxx Parties
and Path 1 shall cooperate with each other in the defense or settlement of any
third party claims, including giving the other reasonable access to relevant
books and records and making themselves available for interviews and
depositions. The Xxxxx Parties shall not act in concert with, or as an agent
for, any party for whose claims they are being indemnified for the purpose of
promoting such claims, except that the Xxxxx Parties may, if requested by Path 1
and agreed to by them, act as mediators or intermediaries for the purpose of
attempting to settle any disputes presently existing between Xxxxxxxx Xxxxxx and
Path 1.
3.3 The foregoing indemnification provisions shall (a)
apply to the fullest extent permitted by law, (b) provide indemnification
against the Xxxxx Parties' alleged primary, secondary and vicarious liability in
any capacity whatsoever, (c) continue in effect at all times after the date of
this Agreement, and (d) be in addition to and not in lieu of any other
indemnification or other rights to which the Xxxxx Parties are or may be
entitled pursuant to law, the certificate of incorporation or bylaws of Path 1,
agreement, insurance or otherwise.
4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF PATH 1. In
addition to the representations, warranties and agreements contained elsewhere
in this Agreement, Path 1 hereby represents and warrants to and agrees with the
Xxxxx Parties as follows:
4.1 Path 1 is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, is duly
qualified and in good standing as a foreign corporation authorized to transact
intrastate business in the State of California and has full power and authority
to conduct its business in the manner in which it is presently being conducted.
Path 1 has all requisite corporate power and authority to execute, deliver and
perform this Agreement and every agreement, instrument or document required to
be delivered pursuant to this Agreement. The execution, delivery and performance
of this Agreement and every agreement, instrument or document required to be
delivered pursuant to this Agreement by Path 1 have been duly authorized by all
necessary or appropriate corporate action and no other corporate proceedings are
necessary to authorize this Agreement or any agreement, instrument or document
required to be delivered pursuant to this Agreement. This Agreement constitutes,
and the other agreements, instruments and documents executed or delivered in
connection with this
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Agreement will constitute when executed, the valid and legally binding
obligations of Path 1 enforceable against Path 1 in accordance with their terms.
4.2 Neither the execution, delivery or performance of
this Agreement or any agreement, instrument or document required to be delivered
pursuant to this Agreement by Path 1, nor the consummation by Path 1 of the
transactions contemplated hereby and thereby, will, with or without the giving
of notice or lapse of time or both: (a) violate, conflict with or result in any
breach of any provision of the certificate of incorporation or bylaws of Path 1,
(b) to the best knowledge of Path 1, require any permit or consent of any
governmental entity, (c) conflict with or constitute a default under any of the
terms or requirements of any permit that is held by Path 1, (d) result in a
violation or breach of, or constitute a default (or give rise to any rights of
termination, amendment, cancellation or acceleration) under, any of the terms,
conditions or provisions of any contract or agreement to which Path 1 is a party
or, to the best knowledge of Path 1, by which it is bound, or (e) to the best
knowledge of Path 1, violate, conflict with or result in any breach of any law
applicable to Path 1.
5. MUTUAL GENERAL RELEASE.
5.1 Effective as of the Closing, and except for the
rights and obligations of the parties under this Agreement or any of the
documents delivered in connection with this Agreement, Path 1, Xxxxxxx X.
Xxxxxx, Xxxxxx X. Xxxxxxx, Xxxxxxxx Xxxxx and Xxxx Xxxxxxxx (collectively, the
"Path 1 Parties"), on the one hand, and the Xxxxx Parties, on the other hand,
hereby fully and forever releases and discharges the other from any and all
rights, claims, debts, contracts, liabilities, demands, obligations, costs,
charges, accounts, expenses, damages, actions and causes of action, of any kind
or nature whatsoever, which the releasor either had or now has or may hereafter
claim to have against the releasee by reason of any matter or thing whatsoever
occurring prior to the date hereof. The claims hereby released include, by way
of example and not by limitation, all claims directly or indirectly arising out
of, resulting from or relating in any way to the subject matter of the Lawsuit
or the Delaware Action, including but not limited to the filing, maintenance or
prosecution of the Lawsuit or the Delaware Action.
5.2 The foregoing mutual release constitutes a general
release and shall extend to all claims of every nature and kind whatsoever,
known or unknown, suspected or unsuspected, including, but not limited to, any
claims based on contract, tort, statute, breach of duty, bad faith, negligence,
or any other theory of liability.
5.3 The Path 1 Parties and the Xxxxx Parties explicitly
waive any and all rights which they may have under the provisions of California
Civil Code section 1542, which section reads as follows:
A general release does not extend to 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 affected his settlement with the debtor.
5.4 The foregoing mutual release shall inure to the
benefit of and be binding upon the parties and their respective predecessors,
successors, assigns, heirs, executors,
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administrators, spouses, employees, agents, servants, partners, shareholders,
directors, officers, managers, parents and subsidiaries, affiliates, guarantors,
representatives, insurers and attorneys.
5.5 Xxxxxxxx Xxxxxx is not a party to, nor included
within or benefitted by, the foregoing mutual release in this Section 5. Any
claims for indemnity or contribution that may be brought by any of the parties
to this Agreement (other than Path 1) as a result of claims brought (or that may
be brought) by Xxxxxxxx Xxxxxx are not released in this Section 5.
6. COVENANT NOT TO XXX. Effective as of the Closing, the Path 1
Parties, on the one hand, and the Xxxxx Parties, on the other hand, each agrees
to forever refrain and forebear from commencing, voluntarily assisting,
instituting or prosecuting any litigation, action, arbitration, administrative
or other proceeding of any kind against the other directly or indirectly arising
out of, resulting from or relating in any way to the subject matter of the
release contained in Section 5.
7. EXCLUSIONS. Notwithstanding the provisions of Sections 5 and
6, the releases and covenants not to xxx contained therein shall not apply to
(a) the rights and obligations of the parties under this Agreement or any of the
documents delivered in connection with this Agreement, (b) claims by the parties
to this Agreement (other than Path 1) for indemnity or contribution arising out
of any action, claim or proceeding of any kind brought (or that may be brought)
by Xxxxxxxx Xxxxxx, and (c) the rights and claims, if any, of the parties to
this Agreement against Jyra Research Inc. and/or Jyra Research Limited
(collectively, "Jyra") or of Jyra against the parties to this Agreement. This
Section 7 does not affect the indemnity provisions of Section 3 above.
8. NO LIABILITY ADMITTED. Each of the parties explicitly
acknowledges and agrees that this Agreement represents a settlement of disputed
claims and that by entering to this Agreement, no party admits or acknowledges
the existence of any liability or wrongdoing. The provisions of this Agreement
shall not be construed as an admission of liability or wrongdoing by any party.
9. ADVICE OF COUNSEL. In executing this Agreement, each party
represents and warrants to the other that he, she or it has relied upon the
legal advice of his, her or its own attorney, that the provisions of this
Agreement have been completely read and explained by his, her or its attorney,
and that the provisions of this Agreement are fully understood and voluntarily
accepted by him, her or it.
10. REPRESENTATIONS, WARRANTIES AND AGREEMENTS. In addition to the
representations, warranties and agreements contained elsewhere in this
Agreement, the Path 1 Parties, on the one hand, and the Xxxxx Parties, on the
other hand, each hereby represents and warrants to and agrees with the others as
follows:
10.1 This Agreement and the execution, delivery and
performance hereof by them (a) have been duly authorized and approved by all
necessary action on their part and (b) do not require the consent or approval of
any other person.
10.2 Except for the assignment of claims by Xxxxxxx X.
Xxxxxx and Xxxxxx X. Xxxxxxx to Path 1 (all of whom are parties to this
Agreement and the mutual release in
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Section 5), they have not heretofore assigned, transferred or pledged, or
purported to assign, transfer or pledge, voluntarily, involuntarily or by
operation of law, to any person, any interest in any of the claims released by
them under Section 5.
10.3 They agree to protect, defend, indemnify and hold
harmless the other parties from and against any and all claims, losses, damages,
liabilities and expenses, including attorneys' fees, arising from or on account
of any misrepresentation, breach of warranty or failure to perform any of their
representations, warranties, covenants or agreements contained in this
Agreement.
11. GENERAL PROVISIONS.
11.1 PUBLIC ANNOUNCEMENTS. Path 1 agrees to consult with
the Xxxxx Parties before issuing any press release or otherwise making any
public statement (other than in reports required to be filed with the Securities
and Exchange Commission pursuant to federal securities laws) with respect to
this Agreement, the settlement of the Lawsuit or the Delaware Action or the sale
and purchase of the Xxxxx Path 1 Shares. All press releases and other public
statements with respect to this Agreement, the settlement of the Lawsuit or the
Delaware Action or the sale and purchase of the Xxxxx Path 1 Shares shall be
subject to the Xxxxx Parties' prior written approval which shall not be
unreasonably withheld.
11.2 ATTORNEYS' FEES. In any action or proceeding
(including, but not limited to, arbitration, appellate and bankruptcy
proceedings) arising out of or relating to this Agreement or to the subject
matter, enforcement or breach hereof, the prevailing party shall be entitled to
reasonable attorneys' fees, costs and expenses (including, but not limited to,
litigation expenses such as expert witness fees, copying costs and postage,
delivery, telephone and telecopying charges). This provision applies to this
entire Agreement and shall survive any resulting judgment, which the parties
agree shall contain an explicit provision that attorneys' fees incurred in
enforcing the judgment shall be included as costs collectible by the prevailing
party judgment creditor.
11.3 INTEGRATION. This Agreement is intended to be and
constitutes the final, complete and exclusive agreement between the parties
regarding the subject matter of this Agreement and all prior or contemporaneous
agreements, understandings, representations and statements, oral or written, are
merged into and superseded by this Agreement. No parol or extrinsic evidence of
any kind and no course of dealing or usage of trade or course of performance
shall be used to vary, contradict, supplement or add to the terms of this
Agreement.
11.4 AMENDMENT. No amendment, modification, termination or
waiver of this Agreement or any of its provisions shall be valid unless the same
is in writing and signed by the party against which such amendment,
modification, termination or waiver is sought to be enforced.
11.5 WAIVER. No waiver of any breach of any provision or
condition of this Agreement shall be deemed a waiver of a breach of a similar or
dissimilar provision or condition at the same time or any prior or subsequent
time or of the provision or condition itself.
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11.6 TIME OF ESSENCE. Time is of the essence of this
Agreement and each of its provisions in which a time for performance is
specified.
11.7 BINDING EFFECT. This Agreement shall bind and inure
to the benefit of the parties hereto and their respective successors, assigns
and legal representatives. Except as otherwise stated in this Agreement, no
other party shall have any rights under or be deemed a beneficiary of this
Agreement.
11.8 COOPERATION. Each party shall execute and deliver or
cause to be executed and delivered such further instruments and documents and
shall take such further action as may be reasonably required to effectuate the
provisions of this Agreement.
11.9 SURVIVAL. All representations, warranties, covenants
and agreements contained in this Agreement shall survive the execution and
delivery hereof, the Closing and any and all performances in accordance with
this Agreement.
11.10 GOVERNING LAW. This Agreement shall be governed by
and construed and enforced in accordance with the laws of the State of
California.
11.11 WARRANTY OF AUTHORITY. The persons signing this
Agreement represent and warrant that they have the requisite authority to bind
the parties on whose behalf they are signing.
11.12 RULES OF CONSTRUCTION. The section headings contained
in this Agreement are for reference purposes only and shall not affect the
meaning or interpretation of this Agreement. References to a section without
further attribution shall refer to the sections of this Agreement. When
indicated by the context, each number, both singular and plural, includes all
numbers, and each gender includes all genders. As used herein, the terms
"include," "including" and similar terms shall be construed as if followed by
the words "without limitation;" the term "person" includes natural person, firm,
partnership, corporation, limited liability company, association and any other
private or public entity; and the term "provisions" shall be construed as if
followed by the words "covenants, agreements, representations, warranties,
indemnities, terms and/or conditions".
11.13 SEVERABILITY. If any one or more of the provisions of
this Agreement shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Agreement and this Agreement shall
be construed as if such invalid, illegal or unenforceable provisions had never
been contained herein.
11.14 COUNTERPARTS. This Agreement may be executed in
multiple counterparts, each of which shall be deemed an original, but all of
which, together, shall constitute one and the same instrument.
11.15 INTERPRETATION OF AGREEMENT. This Agreement has been
negotiated at arm's length and each party has been represented by independent
legal counsel of his own choice and representing his own interests. Accordingly,
any rule of law (including, but not limited to,
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California Civil Code Section 1654) or legal decision that would require
interpretation of any ambiguities in this Agreement against the party that has
drafted it is not applicable and is waived.
11.16 EQUITABLE REMEDIES. The parties agree that they would
be irreparably damaged if the provisions of this Agreement were not capable of
being specifically enforced. Accordingly, the parties agree that the provisions
of this Agreement shall be specifically enforceable, that any violation of any
provision of this Agreement may be enjoined or restrained and that such
equitable relief shall not in any way limit or deny any other remedy which the
parties may have under this Agreement or at law.
11.17 EFFECTIVENESS OF AGREEMENT. This Agreement shall
become effective when it has been executed and delivered by all of the parties
hereto. Facsimile signatures and delivery by facsimile transmission shall be
valid and effective.
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IN WITNESS WHEREOF, the parties have executed this Agreement the date
first above written.
PATH 1 NETWORK TECHNOLOGIES INC., XXXXX & XXXXX,
a Delaware corporation a general partnership
By: /s/ Xxxxxxx Xxxxxxx By: /s/ Xxxxx Xxxxx
------------------------------- --------------------------------
Xxxxx Xxxxx, Partner
-------------, President
By: /s/ Xxxx Xxxxx By: /s/ Xxxxxxx Xxxxx
------------------------------- --------------------------------
Xxxxxxx Xxxxx, Partner
-------------, Secretary
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxx Xxxxx
------------------------------------ -------------------------------------
Xxxxxxx X. Xxxxxx Xxxxx Xxxxx
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxxx Xxxxx
------------------------------------ -------------------------------------
Xxxxxx X. Xxxxxxx Xxxxxxx Xxxxx
/s/ Xxxxxxxx Xxxxx /s/ Xxxx Xxxxx
------------------------------------ -------------------------------------
Xxxxxxxx Xxxxx Xxxx Xxxxx
/s/ Xxxx Xxxxxxxx
------------------------------------ -------------------------------------
Xxxx Xxxxxxxx
[SIGNATURE PAGE TO SETTLEMENT AGREEMENT AND MUTUAL RELEASE]
APPROVED AS TO FORM:
SULLIVAN, HILL, XXXXX, REZ & XXXXX
Attorneys for the Xxxxx Parties
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
XXXXXXXXX XXXXXXXX XXXXX & XXXXX LLP
Attorneys for Path 1, Xxxxxx X. Xxxxxxx
and Xxxxxxx X. Xxxxxx
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
XXXXXX XXXXXXXX LLP
Attorneys for Xxxxxxxx Xxxxx and
Xxxx Xxxxxxxx
By: /s/ M. Xxxxxx Xxxxx
------------------------------------
[SIGNATURE PAGE TO SETTLEMENT AGREEMENT AND MUTUAL RELEASE]
