SETTLEMENT AGREEMENT AND MUTUAL RELEASE
Exhibit
10.9
SETTLEMENT
AGREEMENT AND MUTUAL RELEASE
THIS
SETTLEMENT AGREEMENT AND MUTUAL RELEASE (hereinafter this “Agreement”) is made
this 16
day of
March, 2006 by and between SEREFEX CORPORATION (hereinafter referred to as
“SEREFEX”) and XXXXXX
X.
XXXXXXX, XXXXXX X. XXXXXXX REV TRUST, XXXXXX X. XXXXXXX, XXXXXX X. XXXXXXX
REV
TRUST, XXXX XXXXXXX and LIONS GATE MANAGEMENT, LTD. CO., a Florida Corporation,
JOINTLY AND SEVERALLY
(hereinafter collectively referred to as “Defendants”) and these parties agree
as follows:
RECITALS:
WHEREAS,
the
parties to this Agreement are parties to a civil action pending in the
Circuit
Court for the Twentieth Judicial Circuit of Florida, in and for Xxxxxxx County,
Florida,
being
Case No. 04-2834-CA,
styled
Serefex
Corporation x. Xxxxxxx, et al.,
(hereinafter the “Lawsuit”).
WHEREAS,
due
to the
uncertainty of the claims and the necessity on the part of both parties to
bring
these matters to an expeditious conclusion, the parties desire to settle all
issues between them, both those which were raised or could have been raised
by
the pleadings filed in the Lawsuit, and, therefore, enter into this Agreement
settling all issues between them on the terms and conditions set forth
herein.
WHEREAS,
the parties to this Agreement have agreed to settle their disputes in the manner
set forth in this Agreement.
WHEREAS,
the
consideration for this Agreement and for the execution and delivery of all
documents and/or items pursuant to it are the mutual promises contained in
this
Agreement.
WHEREAS,
the parties to this Agreement have agreed to settle their dispute in the manner
set forth below.
IT
IS STIPULATED AND AGREED AS FOLLOWS:
1. DEFENDANTS
JOINTLY AND SEVERALLY AGREE AS FOLLOWS:
A. To
transfer, assign, convey or deliver to SEREFEX all
shares
and/or holdings in Serefex Corporation and or SpectraFax Corporation
(collectively the “Serefex Shares”) that are currently titled in their names,
held in their possession and/or under their control, including but not limited
to all shares listed in the attached Exhibit “A”. To the extent Defendants have
already delivered any certificates for any of the Serefex Shares that are titled
in their name to SEREFEX, or is obligated to deliver any such certificate titled
in their name to SEREFEX, Defendants further agree to execute any documents
that
may be required to effect the legal transfer of title to such shares from the
Defendants to SEREFEX, including but not limited to any Power of Attorney to
Transfer Securities or Stock Power, the form of which is attached hereto as
Exhibit “B” (“Stock Power”). To the extent any of the Serefex Shares have been
issued to any of the Defendants, but the Defendants do not have possession
or
control over such shares, Defendants shall nonetheless execute any document
or
take any other action required to transfer ownership and title to such shares
to
SEREFEX, including but not limited to the execution of any Agreement of
Indemnity/Affidavit of Loss, the form of which is attached hereto as Exhibit
“C”
(“Affidavit of Loss”), and thereafter to execute a Stock Power to transfer such
shares to SEREFEX. To the extent any of the Serefex Shares are held in any
account titled in the name of any of the Defendants or is under the control
of
any of the Defendants, Defendants further agree to assign, transfer and convey
to SEREFEX all rights, interests, benefits or privileges to such Serefex Shares
in those accounts in order to effectuate the transfer of shares to SEREFEX.
The
parties acknowledge that the amounts of the shares indicated in this paragraph
are approximate, and the actual share amounts may vary from these
approximations. Defendants acknowledge that they, jointly and severally, have
the obligation to take whatever action is required to transfer the Serefex
Shares to SEREFEX, which transfer shall be effectuated by any means necessary
to
transfer the shares including, but not limited to, assignment/transfer of stock
forms, affidavit of lost certificate(s), and instruction to necessary transfer
agents as to the transfer of the stock outlined in this paragraph. The
Defendants shall initiate the transfer, assignment, conveyance and delivery
of
the Serefex Shares to SEREFEX no later than three (3) days after being advised
that the board of directors of SEREFEX has approved this Agreement. The
Defendants shall use their best efforts to complete the transfer, assignment,
conveyance and delivery of the Serefex Shares to SEREFEX.
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B. To
pay to
SEREFEX the sum of $ 25,000.00 by cashier’s check, on or before May 26, 2006.
Said funds shall be transmitted to SEREFEX in care of their counsel, Xxxxxxx
Xxxxxxxxx. Defendants acknowledge and agree that their obligation to pay the
$
25,000.00 to SEREFEX is joint and several.
C. To
pay in
advance by cashier’s check all fees associated with the transfer of the Serefex
Shares outlined in Paragraph 1 (A) above, including any and all costs and fees
associated with transferring, replacing any lost, missing or stolen stock
certificates, including but not limited to certificate numbers 2, 68, 70, 1023,
1104, 1479, 1626 and 2216.
D. To
bear
their own costs and attorneys’ fees relating to or arising from the
Lawsuit.
E. To
refrain from making any disparaging remarks, comments, or communications (either
oral or written) against SEREFEX, any of its officers, directors, agents,
advisors, and/or assigns, and to refrain from making any statements, interviews
or comments relative to the terms of this Agreement to any news organization,
provided SEREFEX fully complies with the terms of this Agreement.
F. To
execute and file a joint stipulation for dismissal with prejudice of all claims
and counterclaims asserted in the Lawsuit, with all parties to bear their own
attorneys’ fees and costs. Such stipulation shall be filed concurrently with the
joint stipulation of dismissal to be filed by SEREFEX, pursuant to paragraph
2.H. below.
2. SEREFEX
AGREES AS FOLLOWS:
A. To
accept
the transfer, assignment, conveyance and delivery to SEREFEX of the Serefex
Shares in the manner described above in partial settlement of its claims in
the
Lawsuit.
B. To
accept
payment of the sum of $ 25,000.00 by cashier’s check from the Defendants as
described above, in partial settlement of the Lawsuit. Said sum shall be due
and
payable on or before May 26, 2006. Said funds shall be transmitted to SEREFEX
in
care of their counsel, Xxxxxxx Xxxxxxxxx.
C. To
bear
its own costs and attorneys’ fees relating to or arising from the Lawsuit,
provided Defendants fully comply with the terms of this Agreement.
D. To
use
its best effort to seek to obtain board approval for this Agreement within
five
(5) days of the date of this Agreement.
E. To
refrain from making any disparaging remarks, comments, or communications (either
oral or written) against Defendants or their family members, provided Defendants
fully comply with the terms of this Agreement.
F. To
refrain from making any statements, interviews or comments relative to the
terms
of this Agreement to any news organization, provided Defendants fully comply
with the terms of this Agreement.
G. Notwithstanding
the above, the parties acknowledge that SEREFEX fully intends on disclosing
the
terms of this Agreement in its Xxxxx filings to the Securities and Exchange
Commission, either as an attachment to the filings or contained in the body
of
the filings, and that such disclosure is expressly permitted by this
Agreement.
H. To
execute and file a joint stipulation for dismissal with prejudice of all claims
and counterclaims asserted in the Lawsuit, with all parties to bear their own
attorneys’ fees and costs, within five (5) days after Defendants’ payment of the
$ 25,000.00 set forth in Paragraph 1. B. above and transfer of all the Serefex
Shares pursuant to Paragraph 1.A. above, provided Defendants have otherwise
fully complied with the terms of this Agreement. In the event Defendants fail
to
fully comply with the terms of this Agreement, SEREFEX reserves the right to
pursue the claims asserted in the Lawsuit and to recover from all Defendants,
jointly and severally, any damages in excess of any recovery made under this
Agreement, which SEREFEX shall be entitled to retain.
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3. MISCELLANEOUS:
A. The
parties agree that in the event other documents not described in this Settlement
Agreement and Mutual Release are required to fully effectuate the terms,
conditions and obligations, the parties have agreed to make, execute and deliver
or cause to be made, executed and delivered, any and all such further documents
or instruments necessary or desirable to complete or perfect the said terms,
conditions or obligations.
B. Any
number of counterparts of this Agreement may be signed and delivered, including
by facsimile, each of which, together, shall constitute one and the same
Agreement.
C. Effective
only upon the transfer of the Serefex Shares and the $ 25,000.00 payment in
accordance with this Agreement
by Defendants, as well as their compliance with all terms of this
Agreement,
SEREFEX
CORPORATION, XXXXXX
X.
XXXXXXX, XXXXXX X. XXXXXXX REV TRUST, XXXXXX X. XXXXXXX, XXXXXX X. XXXXXXX
REV
TRUST, XXXX XXXXXXX, LIONS GATE MANAGEMENT, LTD. CO., a Florida Corporation,
for
themselves and on behalf of their respective shareholders, members, directors,
officers, employees, managers, attorneys, other agents, successors, heirs,
executors, and assigns, release and forever discharge one another along with
their respective shareholders, members, officers, directors, managers,
employees, attorneys, other agents, successors, assigns, and any affiliated
company thereof, from all debts, demands, actions, causes of action, charges,
complaints, judgments, suits, warranties, covenants, contracts, promises,
obligations, liability, or claims of any kind, type or description, whether
known or unknown, disputed or undisputed, accrued or unaccrued, liquidated
or
contingent, foreseen or unforeseen, asserted or unasserted, in contract, tort,
at law, or in equity, existing at the time of this Agreement, arising out of
or
connected with any of the claims asserted or that could have been asserted
in
the
action filed in the Twentieth Judicial Circuit of Florida, in and for Xxxxxxx
County, Florida,
being
Case No. 04-2834-CA,
styled
Serefex
Corporation x. Xxxxxxx, et al.,
including, without limitation any matter that could have been pleaded, that
arose out of the same transaction or occurrence of the above-referenced
litigation whatsoever in law or in equity, whether known or unknown, fixed
or
contingent, EXCEPT
as
relating to the enforcement of this Settlement
Agreement and Mutual Release.
D. This
Settlement Agreement and Mutual Release is a compromise of disputed claims
between the parties and is made in good faith to settle the present dispute
and
avoid all future disputes between the parties. It is not intended to be
construed as an admission of any liability on the part of any of the parties
released in this Agreement.
E. This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Florida.
F. The
parties agree that their successors, assigns, and related entities shall be
bound by the terms of this Agreement.
G. No
change, modification, termination, or attempted waiver of any of the provisions
of this Agreement shall be binging upon any party hereto unless reduced to
writing and signed by the party or parties against whom enforcement is
sought.
H. All
understandings and agreements between the parties are contained herein and
the
parties acknowledge that no representations or warranties have been made other
than those specifically set forth herein.
I. The
“date
of this Agreement” is the date which appears in the first paragraph
hereof.
J. If
any
litigation shall be instituted for the purpose of enforcing or interpreting
any
of the provisions of this Agreement, the prevailing party or parties as
determined by the court having jurisdiction thereof, shall be entitled to
recover, in addition to all other relief, an amount equal to all costs and
expenses incurred in connection therewith, including, without limitation,
reasonable attorney’s fees at the trial level and in connection with all
appellate proceeding.
K. The
parties agree that every provision of this Agreement shall be construed as
if
both parties were equally responsible for drafting the provision.
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L. The
parties agree that this Agreement is subject to approval of the board of
directors of SEREFEX.
M. The
parties agree to use best efforts to procure a stipulation and order authorizing
and directing RBC Xxxx Xxxxxxxx to transfer to SEREFEX any and all of the
Serefex Shares RBC Xxxx Xxxxxxxx holds for the Defendants, including but not
limited to all shares held in RBC Xxxx Xxxxxxxx account number
5509-5152.
N. This
Agreement may be executed in counterparts, and a facsimile signature shall
be
deemed as good as an original.
O. Concerning
the Serefex Shares identified on Exhibit A, the parties agree as follows: (1)
The parties acknowledge that certificated shares identified on the attached
Receipt dated March 1, 2004 have been delivered to Serefex already; however,
Defendants still have the obligation to effect the legal transfer of these
shares to Serefex by execution of the required stock powers; (2) With respect
to
the 700,000 Lionsgate Management shares represented by certificate numbers
917,
920 and 921, Defendants represent that Lionsgate Management held such shares
in
trust for Defendant Xxxxxx X. Xxxxxxx as the beneficial owner of such shares,
as
explained in the Affidavit of Xxxxxx X. Xxxxxxx attached as Exhibit __. To
the
extent any Defendant has or had any right, title or interest in such shares,
all
Defendants hereby convey and transfer such rights, title or interest to Serefex
by execution of this Agreement and, with respect to Defendant Xxxxxx X. Xxxxxxx
specifically, by execution of the Affidavit attached as Exhibit __; (3) With
respect to the 100,000 Alliance shares represented by certificate number 2377,
Defendants represent that they have never owned any rights, title or interest
with respect to such shares. To the extents Defendants might have any rights,
title or interest in such shares; Defendants hereby convey and transfer such
rights, title or interest to Serefex by execution of this
Agreement.
IN
WITNESS whereof, the Parties hereto have executed this Settlement
Agreement and Mutual
Release as
of the
16
day of
March 2006.
SEREFEX
CORPORATION
LIONS
GATE MANAGEMENT, LTD. CO.,
____________________________ ____________________________________
By:
By:
Its:
Its:
XXXXXX
X.
XXXXXXX REV TRUST
____________________________ ____________________________________
XXXXXX
X.
XXXXXXX By:
Its:
XXXXXX X. XXXXXXX REV TRUST,
____________________________ ____________________________________
XXXXXX
X.
XXXXXXX
By:
Its:
____________________________
XXXX
XXXXXXX
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