SETTLEMENT AGREEMENT AND GENERAL RELEASE
EXECUTION
COPY
SETTLEMENT
AGREEMENT AND GENERAL RELEASE
This
Settlement Agreement and General Release (“Agreement” or “General Release”) is
entered into by Plaintiff Xxxx Xxxx, and on behalf of his agents,
xxxxxxxxxxxxxxx, xxxxx, xxxxxx, executors, administrators, successors, and/or
assigns (collectively referred to as “King” or “Plaintiff”) and Defendants
NewGen Technologies, Inc. (“NewGen” or the “Company”) and Refuel America, Inc.
(“Refuel”) and ICF Industries, Inc. (“ICF”) and their past or present
predecessors, successors, assigns, affiliates, parents, subsidiaries, related
companies, partners, benefit plans, directors, shareholders, members, officers,
agents, attorneys, employees, servants, and insurers (hereinafter collectively
referred to as “Defendants”) for the purposes of forever releasing Defendants
from any and all claims which Plaintiff has, may have or may have had against
Defendants and releasing Plaintiff from any and all claims which Defendants
have, may have or may have had against Plaintiff.
WHEREAS,
Plaintiff instituted a civil action, entitled Xxxx
Xxxx x. XxxXxx Technologies, Inc., and Refuel America, Inc.,
Case
Number: 3:06-cv-227 in the United States District Court for the Western District
of North Carolina (the “Action”); and
WHEREAS,
Plaintiff and Defendants desire to settle, resolve, compromise, terminate,
and
dismiss with prejudice any and all disputes or differences between them and
to
avoid the further expense, disruption and uncertainty of litigation, all without
admitting liability or any wrongdoing;
NOW
THEREFORE,
in
consideration of the covenants contained herein, and for other valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
Plaintiff and Defendants agree that all claims or differences which they might
have against each other are herewith settled, resolved, compromised, terminated,
and dismissed with prejudice, upon the following terms and conditions:
EXECUTION
COPY
1. Plaintiff
hereby expressly and unconditionally releases and forever discharges Defendants
from: (a) any and all claims, issues, demands, remedies, prayers for
relief, benefit claims, damages, attorneys’ fees, costs and/or causes of action
alleged in, arising out of, or in any way related to the facts alleged in the
Action, or which could have been alleged therein; and (b) any and all
claims, issues, demands, remedies, prayers for relief, benefit claims, damages,
attorneys’ fees, costs and/or causes of action, known or unknown and of whatever
kind or nature, and whether asserted by Plaintiff, or on his behalf by any
person or entity, arising out of or in any way related to any relationship
or
involvement Plaintiff had, or may have had, with Defendants, which arose on
or
before the effective date of this Agreement, under any possible legal,
equitable, tort, contract or statutory theory or cause of action, including,
but
not limited to, claims under:
|
·
|
The
Fair Labor Standards Act, 29 U.S.C. § 201 et seq.;
|
|
·
|
The
Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001
et seq.;
|
|
·
|
The
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
as
amended;
|
|
·
|
The
Civil Rights Acts of 1866 and 1871, 42 U.S.C. § 1981 et seq.
as
amended;
|
|
·
|
The
Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq.;
|
|
·
|
The
Equal Pay Act of 1963, 29 U.S.C. § 206(d);
|
|
·
|
The
Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.;
|
|
·
|
The
Older Workers Benefits Protection Act, 29 U.S.C. §
626(f);
|
|
·
|
The
Americans with Xxxxxxxxxxxx Xxx, 00 X.X.X. § 00000 et seq.;
|
|
·
|
The
Family and Medical Leave Act, 29 U.S.C. § 2601, et seq.;
|
EXECUTION
COPY
|
·
|
The
Consolidated Omnibus Budget Reconciliation Act of 1985, I.R.C. §
4980B;
|
|
·
|
North
Carolina statute or administrative code;
and
|
|
·
|
Any
other federal, state or local human rights, civil rights, wage-hour,
wage
payment, pension or labor laws, rules and/or regulations, constitutions,
ordinances, public policy, contract or tort laws, principles of equity,
or
the common law.
|
Defendants
hereby expressly and unconditionally release and forever discharge Plaintiff
from any and all claims, issues, demands, remedies, prayers for relief,
benefit claims, damages, attorneys’ fees, costs and/or causes of action, known
or unknown and of whatever kind or nature, and whether asserted by Defendants,
or on their behalf by any person or entity, arising out of or in any way related
to any relationship or involvement Defendants had, or may have had, with
Plaintiff, which arose on or before the effective date of this Agreement, under
any possible legal, equitable, tort, contract or statutory theory or cause
of
action.
2. With
regard to claims Plaintiff may have pursuant to the Age Discrimination in
Employment Act of 1967, 29 U.S.C. § 621, et
seq.
(“ADEA”), Plaintiff acknowledges that his waiver, release and discharge of
claims against Defendants, is made knowingly and voluntarily, and specifically
agrees that : (i) this Agreement is written in a manner which he understands;
(ii) he is waiving these rights or claims in exchange for substantial
consideration in excess of anything of value to which he is otherwise entitled
to receive; and (iii) he has been advised in writing, given the opportunity
to,
and has consulted with an attorney of his choosing prior to executing this
Agreement.
3. Plaintiff
and Defendants expressly understand and agree that this is a General Release
and
that no reference herein to any specific form of claim or statute is intended
in
any way to limit its scope. Plaintiff and Defendants expressly understand and
agree that this General Release is a complete defense to any action Plaintiff
or
Defendants may bring in any court or agency against each other as to the matters
contained herein. This General Release shall become effective seven (7) days
after Plaintiff executes this General Release.
EXECUTION
COPY
4. Plaintiff
expressly understands, agrees and acknowledges by executing this Agreement
that
Plaintiff has no connection to or affiliation with NewGen, Refuel, ICF or any
of
their parents, subsidiaries, related companies or affiliates whether as an
employee, director or in any other manner; except as a creditor as described
in
paragraph 6 below and a shareholder.
5. Plaintiff
further expressly understands, agrees and acknowledges by executing this
Agreement that the Promissory Note, dated June 1, 2005, in an original principal
amount of $316,500, issued by Refuel to the Plaintiff (the “Existing Note”) (and
any other notes he may hold as issued by NewGen, Refuel, ICF or any of their
parents, subsidiaries, related companies or affiliates prior to the date of
this
Agreement) shall be surrendered and cancelled concurrently herewith (subject
to
the delivery of the Amended and Restated Convertible Note described in paragraph
6(a) below in replacement thereof) and any employment agreement or contract
Plaintiff may have had with NewGen, Refuel, ICF or any of their parents,
subsidiaries, related companies or affiliates prior to the date of this
Agreement is null and void, and that Plaintiff is not entitled to anything
from
Defendants except that which is expressly set forth in this
Agreement.
6. Defendants
and Plaintiff agree that the settlement of their disputes pursuant to this
Agreement shall be based upon Plaintiff’s receipt of the following
consideration, which Plaintiff understands and agrees shall be subject to the
contingencies associated therewith, and shall furthermore be subject to the
following conditions:
EXECUTION
COPY
(a) Defendant
NewGen will issue to Plaintiff, in replacement of the Existing Note, an Amended
and Restated 12% Convertible Unsecured Promissory Note in a principal amount
of
$317,794, reflecting the outstanding principal amount of the Existing Note
plus
legal fees and expenses incurred by Plaintiff in collection thereof, in the
form
annexed hereto as Exhibit
A,
(the
“Amended and Restated Convertible Note”);
(b) In
addition to the Amended and Restated Convertible Note, Defendant NewGen will
issue to Plaintiff a second 12% Convertible Unsecured Promissory Note, in an
original principal amount of $357,206, reflecting accrued and unpaid salary
owed
to Plaintiff for services rendered by Plaintiff during the year 2005 and part
of
the year 2006 and the accrued, unpaid interest upon the Existing Note, in the
form annexed hereto as Exhibit
B
(the
“Additional Note”) (collectively with the Amended and Restated Convertible Note,
the “New Notes”);
(c) Plaintiff
understands, acknowledges and agrees that the terms set forth in this paragraph
6 and the effectiveness of this Agreement are contingent upon the cancellation
by NewGen of 562,500 shares of its common stock, par value $.001 per share
(“Common Stock”) currently held, and which shall be designated, by
Plaintiff;
(d) Defendant
NewGen shall issue to Plaintiff an option to purchase 75,000 shares of Common
Stock (the “Option Shares”) at an exercise price of $.50 per share, which shall
be fully vested upon the effectiveness of this Agreement and which shall expire
January 15, 2009 (the “Option”);
(e) The
shares of NewGen’s Common Stock beneficially held by Plaintiff (i.e., (i) those
shares Plaintiff currently holds beyond the 562,500 shares to be cancelled
pursuant to this Agreement and (ii) those shares Plaintiff would own as a result
of the conversion of the New Notes (the “Conversion Shares”) into Common Stock
or the exercise of the Option or other options for the purchase of Common Stock)
will be subject to the terms of a registration rights agreement, in the form
annexed hereto as Exhibit
C,
to be
entered into by NewGen and Plaintiff (the “Registration Rights Agreement”);
and
EXECUTION
COPY
(f) In
order
to facilitate the disposition of shares of Common Stock to be held by Plaintiff
after the date hereof, Defendant NewGen hereby agrees that to the extent that
Plaintiff’s holding period for any of such shares meets or exceeds the two year
period required for disposition thereof pursuant to Rule 144(k) under the
Securities Act of 1933, as amended (the “Securities Act”), as confirmed by an
opinion of Plaintiff’s counsel provided to Defendant NewGen, any legends on the
certificates representing such shares that reflect the acquisition of such
shares for investment purposes only and the status of such shares as restricted
securities under Rule 144 under the Securities Act, along with any stop transfer
orders in the appropriate records of Defendant NewGen or its transfer agent
preventing the disposition thereof by Plaintiff shall be removed within
ten
(10)
business days of Defendant NewGen’s receipt of Plaintiff’s certificate(s) or
request
(along
with the requisite opinion).
Defendant NewGen further agrees that to the extent that Plaintiff’s holding
period for any shares of Common Stock meets or exceeds the one year period
required for volume-limited disposition thereof by non-affiliates of NewGen
pursuant to Rule 144 under the Securities Act, as confirmed by an opinion of
Plaintiff’s counsel provided to Defendant NewGen, Defendant NewGen and its
transfer agent shall cooperate within ten
(10)
business days of the receipt of Plaintiff’s request
(along
with the requisite opinion)
in
enabling the disposition of such number of shares as shall be permitted under
Rule 144, as confirmed by such opinion of counsel. Provided,
however,
that
notwithstanding any other provision of this paragraph 6(f), the shares of Common
Stock held by Plaintiff shall in all events be subject to the lock-up provisions
of Section 11 of the Registration Rights Agreement and Defendant NewGen shall
not be required to take any action to facilitate the transfer of any shares
by
Plaintiff in contravention thereof.
EXECUTION
COPY
(g) Plaintiff
acknowledges that the settlement of NewGen’s dispute with Plaintiff pursuant to
this Agreement is contingent upon Plaintiff’s not aiding or abetting, after the
date hereof, any of A G Global Partners Limited (“A G Global”), Xxxxxxxxx
Xxxxxxxxx (“Greystoke”) (or any person working together with Greystoke), NewGen
Fuel Technologies Limited (“NewGen Fuel”) or Xxxxxxxx Xxxxxx (“Xxxxxx”) with
respect to their civil action against the Company stemming from the joint
venture and license agreement by and among Defendant NewGen, NewGen Fuel and
A G
Global; provided,
however,
that
Defendants acknowledge that Plaintiff may be legally required to provide
testimony or discovery with respect to a matter involving Defendants, AG Global,
Greystoke, NewGen Fuel and Xxxxxx and that such testimony or discovery shall
not
be a breach of this Section nor this Agreement.
7. The
consideration provided for in this Agreement represents full and final
compensation for all alleged damages which arose on or before the effective
date
of this Agreement, regardless of the nature of the alleged damages, and
Plaintiff expressly understands and agrees that Defendants shall not be required
to make any further payment to him or to any attorney or any other person or
entity whatsoever regarding any claim or right asserted by him as described
in
this Agreement, or regarding any claims which may be asserted on his behalf
by
any other entity or agency.
8. Plaintiff
hereby represents and warrants, in connection with Plaintiff’s receipt of the
New Notes and the Option as part of the consideration provided for by this
Agreement, that Plaintiff is an “Accredited Investor,” as such term is defined
in Rule 501 (a) of Regulation D under the Securities Act, and that Plaintiff
is
acquiring the New Notes and the Option and will, upon conversion or exercise
thereof, as the case may be, acquire the Conversion Shares and the Option Shares
issuable thereunder, for his own account for investment and not with a view
to,
or for sale in connection with, any distribution thereof, and with no present
intention of distributing or selling the same in violation of the Securities
Act, and the Plaintiff has no present or contemplated agreement, undertaking,
arrangement, obligation, indebtedness or commitment providing for the
disposition thereof in violation of the Securities Act. Plaintiff furthermore
represents and warrants that the execution, delivery and performance of this
Agreement, the acceptance of the New Notes and the Option, the conversion of
the
New Notes and the exercise of the Option, and the issuance to Plaintiff of
the
Conversion Shares and Option Shares will not (i) violate or conflict with,
or
result in a breach of any provision of, or constitute a default (or an event
which, with notice or lapse of time or both, could become a default) under,
or
give to others any right of termination, amendment, acceleration, or
cancellation with respect to, any agreement to which Plaintiff is party, (ii)
result in the violation of any law, rule, regulation, order, judgment, or decree
to which Plaintiff is subject, or (iii) require Plaintiff to obtain the consent
or authorization of, or to notify, any court, governmental agency, regulatory
agency, self-regulatory agency or any third party.
EXECUTION
COPY
9. Defendant
NewGen hereby represents and warrants, in connection with its issuance of the
New Notes and its grant of the Option as part of the consideration provided
for
by this Agreement, that: (i) such issuance and grant, and the issuance of the
Conversion Shares upon conversion thereof and the Option Shares upon the
exercise thereof, as applicable, have been duly authorized by all necessary
corporate action on its part; (ii) the Conversion Shares and Option Shares,
when
issued upon conversion of the New Notes and exercise of the Option,
respectively, and assuming the
receipt
of the conversion price and exercise price therefor
(in the
case of the New Notes, in the form of the cancellation of NewGen’s indebtedness
thereunder) and the other documentation, if any, required to be delivered in
connection with such conversion and exercise, as the case may be, will be duly
and validly issued, fully paid and nonassessable; (iii) assuming the accuracy
of
the representations and warranties provided by Plaintiff in paragraph 8 above,
such issuance and grant, and the issuance of the Conversion Shares upon
conversion thereof and the Option Shares upon the exercise thereof, as the
case
may be, shall be exempt from the registration requirements of the Securities
Act; (iv) the Conversion Shares and Option Shares shall not be subject to
preemptive rights or other similar rights of the Company’s stockholders and will
not impose personal liability upon the holder thereof; and (v) the execution,
delivery and performance of this Agreement and the issuance of the New Notes,
the grant of the Option and the issuance of the Conversion Shares (upon
conversion of the New Notes) and the Option Shares (upon exercise of the Option)
by the Company will not (A) conflict with, or result in a violation of, any
provision of the Company’s Articles of Incorporation or By-Laws, as amended (B)
violate or conflict with, or result in a breach of any provision of, or
constitute a default (or an event which, with notice or lapse of time or both,
could become a default) under, or give to others any right of termination,
amendment, acceleration, or cancellation with respect to, any agreement or
instrument to which NewGen is party (other than violations, conflicts, breaches
or defaults which would not, either individually or in the aggregate, have
a
material adverse effect upon the Company or its assets), (C) result in the
violation of any law, rule, regulation, order, judgment, or decree to which
NewGen is subject (other than violations which would not, either individually
or
in the aggregate, have a material adverse effect upon the Company or its
assets), or (D) require NewGen to obtain the consent or authorization of, or
to
notify, any court, governmental agency, regulatory agency, self-regulatory
agency or any third party, except as contemplated by this Agreement or as
required under the Securities Act or any applicable state securities laws.
EXECUTION
COPY
10. Plaintiff
expressly agrees that he will pay any and all taxes due from his receipt of
the
consideration provided for under this Agreement. Plaintiff is solely responsible
for any tax liabilities and consequences which may result from his receipt
of
the consideration provided for under this Agreement, and Plaintiff agrees
Defendants shall bear absolutely no responsibility for such liabilities or
consequences. Further, Plaintiff expressly agrees that Defendants shall not
be
required to pay any further sums to him, or to any other person or entity,
if
for any reason the tax liabilities and consequences to him are ultimately
assessed in a fashion which he does not presently anticipate.
11. Plaintiff
agrees to execute an original of this Agreement, and further agrees to authorize
his attorneys to execute a Stipulation of Dismissal with Prejudice, in the
form
attached hereto as Exhibit
D,
dismissing all claims in the Action. Defendants will file the Stipulation of
Dismissal with Prejudice with the Court without further notice to Plaintiff
no
less than seven (7) days after this Agreement is executed by Plaintiff.
Plaintiff expressly understands and agrees that Defendants will not be required
to provide any of the consideration set forth in paragraph 6 above until
Plaintiff executes and delivers to Defendants’ counsel a Stipulation of
Dismissal with Prejudice, in the form attached hereto as Exhibit
D
and
until all other contingencies set forth in paragraph 6 above are satisfied.
12. Plaintiff
expressly understands and agrees that Defendants deny that they harmed him
or
treated him unlawfully, unfairly or discriminatorily in any way, and that
Defendants have resolved his claim solely to avoid the costs of ongoing
litigation. Neither this Agreement nor the implementation thereof shall be
construed to be, or shall be, admissible in any proceeding as evidence of an
admission by Defendants to any violation of, or failure to comply with, any
federal, state or local law, statute, ordinance, agreement, rule, regulation,
or
order. The preceding sentence does not preclude introduction of this Agreement
to establish that Plaintiff’s claims were resolved and released according to the
terms of this Agreement or to establish any breach of this Agreement.
EXECUTION
COPY
13. Plaintiff
expressly warrants that he has not filed, or permitted to be filed, any
complaints, charges or lawsuits against Defendants, except the Action. Plaintiff
covenants and agrees that he will not seek any monetary or other recovery as
a
result of any claim brought directly or indirectly on his behalf in any court
or
other forum against Defendants arising out of any matter preceding the date
he
signs this Agreement. Likewise, Defendants will not seek any monetary or other
recovery against Plaintiff in any court or other forum arising out of any matter
preceding the date Defendants sign this Agreement.
14. Plaintiff
agrees that he will not disparage Defendants in any manner, and Defendants
agree
that they will not disparage Plaintiff in any manner. Any such disparagement
by
any such party will constitute a material breach of this Agreement entitling
Plaintiff or Defendants (as the case may be) to all available remedies in law
and equity. Moreover,
Plaintiff and Defendants agree that the content of any press release to be
issued by Plaintiff or Defendants with respect to this matter shall be mutually
approved, provided that the party from whom approval is sought responds within
twenty-four (24) hours of being provided a copy of the proposed press
release.
15. In
any
action or proceeding to enforce the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorneys’ fees and costs incurred in such
action.
EXECUTION
COPY
16. In
any
action or proceeding to enforce the terms of this Agreement, the parties agree
that the terms of this Agreement will be governed by the laws of the State
of
North Carolina.
17. The
Parties expressly warrant and agree that no promise or inducement has been
offered except as set forth in this Agreement, that this is the complete
Agreement, and that there is not any written or oral understanding or agreement
between the parties that is not recited herein. This Agreement may not be
altered or modified in any way except by a writing signed by Plaintiff and
Defendants.
18. Plaintiff
expressly warrants, agrees and understands that he is waiving certain rights
in
exchange for valuable consideration to which he is not otherwise
entitled.
19. Plaintiff
swears that he has carefully read this Agreement, that he has been given up
to
twenty one (21) days to consider this Agreement, that he has herein been advised
in writing to consult with his attorney and that his attorney has fully
explained this Agreement to him. Plaintiff shall have seven (7) days from the
date he executes this Agreement to revoke his consent hereto. Any revocation
must be in writing and received by Xxxxx Xxxxxxx Xxxxxxx, Esq. at Xxxx Xxxxx
LLP, 000 Xxxxxxxxx Xxxxxx, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 within seven (7) days of the date this Agreement is
executed by Plaintiff. Plaintiff understands and agrees that if he revokes
his
consent, he is not entitled to receive the consideration described in Paragraph
“6” of this Agreement or any other consideration. If no such written revocation
is received within seven (7) days of the execution of this Agreement as set
forth above, this Agreement shall become effective on the eighth (8th)
day
following Plaintiff’s execution of this Agreement, provided that the
contingencies set forth in this Agreement are satisfied.
EXECUTION
COPY
20. If
any
term, condition, clause or provision of this Agreement is determined by a court
of competent jurisdiction to be void or invalid, for any reason, then only
that
term, condition, clause, or provision as is determined to be void or invalid
shall be stricken from this Agreement, and this Agreement shall remain in full
force and effect in all other respects.
21. Plaintiff
and Defendants hereby agree that each party has reviewed and provided input
into
this Agreement and that any rule of construction to the effect that ambiguities
are to be resolved against the drafting party shall not apply to any
interpretation of this Agreement.
EXECUTION
COPY
21. This
Agreement may be executed in counterparts.
IN
WITNESS WHEREOF,
the
Parties, intending to be legally bound, have executed this Agreement as of
the
date set forth below.
| /s/ Xxxx Xxxx | NEWGEN TECHNOLOGIES, INC. | |
| XXXX XXXX | ||
| By: /s/ S. Xxxxx Xxxxxx | ||
|
Name:
S. Xxxxx Xxxxxx
Title:
|
||
| Sworn to and subscribed before me | Sworn to and subscribed before me | |
| this 22nd day of August 2006. | this 22nd day of August 2006. | |
| /s/ C. Xxxxxxxxxxx Xxxx | /s/ Xxxxxxxxx X. Rykiel | |
| NOTARY PUBLIC | NOTARY PUBLIC | |
| REFUEL AMERICA, INC. | ||
| By: /s/ S. Xxxxx Xxxxxx | ||
|
Name:
S. Xxxxx Xxxxxx
Title:
|
||
| Sworn to and subscribed before me | ||
| this 22nd day of August 2006. | ||
| /s/ Xxxxxxxxx X. Rykiel | ||
|
NOTARY
PUBLIC
|
