GENERAL RELEASE AND SETTLEMENT AGREEMENT
THIS GENERAL RELEASE AND SETTLEMENT AGREEMENT (the "Release") is made and
entered into this the 1st day of March 2005 by and between GCH Capital, Ltd
("Consultant"), Xxxxxxxxxx Investments, Ltd. ("Xxxxxxxxxx"), Hyde Investments,
Ltd. "Hyde"), Palisades Capital, LLC ("Palisades," and, together with
Consultant, Xxxxxxxxxx and Xxxx, the "Securities Holders") and AccuPoll Holding
Corp. ("AHC"), and AccuPoll, Inc. ("AI", and, together with AHC, "AccuPoll"),
and Xxxxxx Xxxxxx ("Vadura," and, together with AccuPoll, the "Company ").
Recitals
WHEREAS, Consultant has provided consulting services to AccuPoll under
various consulting agreements entered prior to the date hereof.
WHEREAS, certain disputes have arisen between the Consultant and AccuPoll,
and Consultant desires to settle any and all disputes with AccuPoll;
WHEREAS, the Securities Holders hold certain securities of AccuPoll,
including certain warrants to purchase common stock of AHI, and certain
Debentures which matured on or about December 31, 2004. The Company has
requested that the holders of the Debentures extend the maturity date of the
Debentures to June 30, 2005, and the holders of such Debentures have agreed to
such extension pursuant to the terms of this Agreement;
Agreement
NOW, THEREFORE, in consideration of the mutual promises and agreements
herein contained, the parties hereby agree as follows:
1. Release.
The Company (also herein referred to as the "releasing party" or
"releasing parties"), for themselves and their respective past, present
and future administrators, affiliates, agents, assigns, attorneys,
directors, employees, executors, heirs, insurers, officers, managers,
parents, partners, predecessors, representatives, servants, shareholders,
subpartners, subsidiaries, successors, transferees, underwriters, clients,
customers, and all persons acting by, through, under or in concert with
any of them, and each of them, hereby releases and discharges (i)
Securities Holders and each of their respective past, present and future
administrators, affiliates, agents, assigns, attorneys, directors,
employees, executors, heirs, insurers, officers, managers, parents,
partners, predecessors, representatives, servants, shareholders,
subpartners, subsidiaries, successors, transferees, underwriters, clients
and customers and each of them; and (ii) each of their respective past,
present and future administrators, affiliates, agents, assigns, attorneys,
directors, employees, executors, heirs, insurers, officers, managers,
parents, partners, predecessors, representatives, servants, shareholders,
subpartners, subsidiaries, successors, transferees, underwriters, clients
and customers, and each of them; and (iii) all persons acting by, through,
under or in concert with any of them (all such parties and entities listed
in the immediately preceding clauses (i), (ii) and (iii) sometimes
referred to herein as the "released parties"), of and from any and all
actions, causes of action (including causes of action for tortuous
conduct, fraud, fraudulent inducement or otherwise), claims, costs,
damages, debts, demands, expenses, liabilities, losses and obligations of
every nature, character and description, known or unknown, suspected or
unsuspected, actual or contingent, which the releasing party now owns or
holds, or has at any time heretofore owned or held, or may at any time
hereafter own or hold, by reason of any matter, cause or thing whatsoever
incurred, done, omitted or suffered to be done arising out of, or which
may hereafter be claimed to arise out of, related to or in any way
directly or indirectly connected with any fact, circumstance or event
existing on or prior to the date hereof (all such released or discharged
items, collectively, "Released Claims").
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2. Other Transactions.
(a) The Company hereby agrees that the Debentures held by Xxxxxxxxxx,
Hyde and Palisades will each be increased by 10%, and the maturity
of such Debentures shall be extended to June 30, 2005. This
extension shall be effective as of December 31, 2004. The parties
acknowledge and agree that the balances set forth in Amendment No. 4
to the debentures held by Palisades, Xxxxxxxxxx and Xxxx are the
true and correct balances, and that the extension fee set forth in
such amendments satisfies the provisions of this paragraph.
(b) Palisades hereby assigns to AI all of its right, title and interest
in and to that certain Warrant and Warrant Agreement, dated October
28, 2003, to purchase up to 5,000,000 shares of common stock of AHC.
Consultant makes no representations or warranties whatsoever with
respect to the Warrant and Warrant Agreement. In the event AI
transfers such warrant, AI shall do so in compliance with all
applicable federal, state and local securities laws and regulations,
and shall obtain an appropriate opinion of counsel in connection
with any such transfer or ultimate exercise of the warrant to ensure
appropriate compliance with applicable laws and regulations.
3. Representations and Covenants
(a) Each of the Parties acknowledges that there is a risk that subsequent
to the execution of this Agreement, one or more releasing parties hereto will
incur or suffer loss, damages or injuries which are in some way caused by or
related to the Released Claims, but which are unknown and unanticipated at the
time this Agreement is signed. All releasing parties do hereby assume the
above-mentioned risk and understand that this Agreement SHALL APPLY TO ALL
UNKNOWN OR UNANTICIPATED RESULTS OF THE TRANSACTIONS AND OCCURRENCES DESCRIBED
ABOVE, AS WELL AS THOSE KNOWN AND ANTICIPATED, each of the Parties acknowledges
in executing the releases (the "Releases") contained in this Agreement, that
each does so with full knowledge of any and all rights and benefits that each
might otherwise have had under California Civil Code Section 1542, and each,
upon the advice of counsel, hereby waives and relinquishes any and all such
rights and benefits. Each of the Parties acknowledges and agrees that this
waiver is an essential and material term hereof, without which this Agreement
(including, without limitation, the Releases) would not have been entered into.
Section 1542 reads as follows:
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"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."
Each of the releasing parties certifies that it has read the foregoing
recitation of Section 1542 and understands the meaning of such section and such
fact is indicated by the signing of such releasing party's initials hereto:
/s/ D.V. /s/ Xxxxxx Xxxxxx
----------- -------------------------------
AccuPoll's Xxxxxx Vadura's
Initials Initials
Each of the Parties further acknowledges that each may hereafter discover facts
different from or in addition to those known or believed to be true with respect
to the Released Claims. Each of the releasing parties agrees that the Releases
shall be and shall remain effective in all respects, notwithstanding any such
different or additional facts, or any facts which are intentionally concealed
from either party by the other. In this regard, and without limitation, each of
the releasing parties declares that it realizes that it may have damages it
presently knows nothing about and that, as to them, they have been released
pursuant to the Releases. Each of the releasing parties further declares that
it understands that the parties being released would not have agreed to
compromise their respective claims or take the actions set forth herein if the
Releases did not cover damages and their results which may not yet have
manifested themselves or which may be unknown or not anticipated at the present
time.
(b) The Releases shall not be deemed an admission by any of the released
parties of any sort. No right shall inure to any third party (other than third
parties described in subparagraphs (a) or (b) above) from the obligations,
representations and agreements made or reflected herein.
(c) Each of the Parties represents and warrants that it alone is the owner
of the Released Claims, that it has not heretofore assigned or transferred, nor
purported to assign or transfer to any third party, and is not aware of any
third party, who might assert some interest in any of the Released Claims. Each
releasing party further agrees to indemnify, defend and hold harmless the
released parties from all liability, claims, demands, damages, costs, expenses
and attorneys' fees incurred by the released party as a result of any third
party asserting any such assignment or transfer of any such interest, right or
claim.
(d) Each of the releasing parties represents and warrants that none of the
Released Claims is subject to any purported or actual lien, security interest,
encumbrance or other contractual right of any third party. Each releasing party
further agrees to indemnify, defend and hold harmless the other from all
liability, claims, demands, damages, costs, expenses and attorneys' fees
incurred by the released parties as a result of any third party asserting the
existence of any of the foregoing.
(e) Each of the Parties acknowledges that it has read this Agreement, has
been, or has had the opportunity to be, represented by independent counsel of
their own choice in connection with the circumstances leading up to the
execution of the Releases, understands the terms, conditions and consequences of
the Releases, and is freely and voluntarily entering into the Releases.
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4. By execution of this Release, each releasing party represents and
warrants to the released party that no Claim that he, she or it has, had, might
have or might have had in the past against any person or entity released hereby,
has previously been conveyed, assigned, or in any manner transferred, in whole
or in part, to any third party. Each releasing party expressly represents and
warrants to the other that he, she or it has full authority to enter into this
Release and to release any and all Claims he, she or it now has, had, might have
or might have had in the past against each person or entity released hereby.
5. It is expressly understood and agreed that the terms of this Agreement
are contractual and not merely recitations and that the agreements herein
contained are to compromise doubtful and disputed Claims, avoid litigation, and
buy peace and that no releases or other consideration given shall be construed
as an admission of liability, all liability being expressly denied by each
released party hereto.
6. CONFIDENTIAL AGREEMENT. The Company hereto agrees to hold all
provisions of this Agreement, as well as any information pertaining to any
released party, strictly confidential, and shall not disclose the terms hereof
to any third party, except as required by applicable law or legal process. Each
party hereby agrees not to disclose any information about, related to or
concerning any party who is released herein. No party shall make any disclosure
of any confidential information as described in this paragraph unless (i) it has
notified the other party of the information to be disclosed under this paragraph
and the circumstances in which the disclosure is alleged to be required as early
as possible before such disclosure must be made, and (ii) such other party has
had a reasonable opportunity to take such steps as the such party may reasonably
require to avoid or limit such disclosure.
7. It is further understood and agreed that this Agreement contains the
entire agreement between the parties and supersedes any and all prior
agreements, arrangements, or understandings between the parties relating to the
subject matter hereof. No oral understandings, statements, representations,
warranties, promises, or inducements contrary to the terms of this Agreement or
otherwise not contained in this agreement exist. This Agreement cannot be
changed or terminated except in writing signed by all parties hereto. The
rights, duties and obligations of the Parties under this Agreement shall operate
independently of any other relationship, contractual or otherwise, between the
Parties.
8. This Agreement shall be construed in all respects in accordance with
the internal laws of the State of California applicable to agreements made and
to be performed entirely within California. Any dispute which relates to the
subject matter hereof, or arises herefrom, shall be resolved in Los Angeles,
California.
Each releasing party hereby irrevocably covenants to refrain from,
directly or indirectly, asserting any claim or demand, or commencing,
instituting or causing to be commenced, any proceeding of any kind against the
Securities Holders, Consultant or any other party released hereunder based upon
any matter purported to be released hereby.
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9. By execution of this Agreement, each releasing party warrants and
represents that he understands that this is a full, final, and complete
settlement with each party released hereby of all known and unknown Claims. The
Releases are not conditioned upon the occurrence or nonoccurrence of any event
or the granting of any consent or approval or related to or dependent upon any
other event or any agreement or business transaction between the Parties.
10. This Agreement shall be binding upon and shall inure to the benefit of
the Parties and their respective heirs, successors, representatives, assigns,
affiliates, agents, shareholders, directors, employees and attorneys, past and
present, and each of them.
11. If any provision of this Agreement is held invalid or unenforceable by
any court of competent jurisdiction, the other provisions of this Agreement will
remain in full force and effect. Any provision of this Agreement held invalid or
unenforceable only in part or degree will remain in full force and effect to the
extent not held invalid or unenforceable. This Agreement and all transactions
contemplated hereby shall be governed by, construed and enforced in accordance
with the laws of the State of California. THE PARTIES HEREBY WAIVE ANY RIGHT TO
TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
ANY OF THE CONTEMPLATED TRANSACTIONS, WHETHER NOW EXISTING OR HEREAFTER ARISING,
AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. THE PARTIES AGREE THAT ANY
OF THEM MAY FILE A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF
THE KNOWING, VOLUNTARY AND BARGAINED-FOR AGREEMENT AMONG THE PARTIES IRREVOCABLY
TO WAIVE TRIAL BY JURY AND THAT ANY PROCEEDING WHATSOEVER BETWEEN THEM RELATING
TO THIS AGREEMENT OR ANY OF THE CONTEMPLATED TRANSACTIONS SHALL INSTEAD BE TRIED
IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY. The
parties agree to submit to the personal jurisdiction and venue of a court of
subject matter jurisdiction located in the State of California, city of Santa
Xxxxxx.
12. This Agreement may be signed in one or more counterparts, each of
which shall constitute an original but all of which, when taken together, shall
constitute one and the same agreement. If this Agreement is executed in
counterparts, then each Party shall execute sufficient counterpart signature
pages for each Party, ultimately, to be provided with an originally executed
counterpart signature page from each Party.
13. Each gender shall include the other genders whenever the context may
require in this Agreement.
14. Each of the individuals whose signature appears below hereby
represents and warrants that he or she has actual authority to enter into this
Agreement on behalf of the entity on whose behalf he or she signs this Agreement
and does so to the fullest extent of his or her authority, whether as an
individual, officer, director, shareholder, partner, joint venturer or
otherwise.
[signature page follows]
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IN WITNESS WHEREOF, the undersigned have set their hands hereunto as of
the dates set forth beneath the undersigned's respective signatures below.
"COMPANY"
AccuPoll Holding Corp., a Nevada corporation, GCH Capital, Ltd.
and AccuPoll, Inc. a Delaware corporation
By: /s/ Xxxxxx Xxxxxx By:
----------------------------------- ------------------------
Name: Xxxxxx Xxxxxx Name: Xxxx Xxxxxx
Title: CEO and Director Title: Secretary
By: XXXXXX XXXXXX
-----------------------------------
Name: Xxxxx Xxxxxx /s/ Xxxxxx Xxxxxx
Title: CFO ----------------------------
Xxxxxx Xxxxxx, an individual
Xxxxxxxxxx Investments, Ltd. Hyde Investments, Ltd.
By:
----------------------------------- ----------------------------
Name/Title: Name/Title:
Palisades Capital, LLC
By:
------------------------------------
Xxxx Xxxxxxxx, Managing Member
[Signature Page to 3/1/05 Settlement Agreement]
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