SETTLEMENT AGREEMENT AND MUTUAL RELEASE
Exhibit
10.13
THIS
SETTLEMENT AGREEMENT AND MUTUAL RELEASE ("Agreement") is made and entered into
as of this 21st day of March 2008, by and among Incendia Management Group Inc.
(the "Agent"), a Canadian corporation, with offices located at 000 Xxxxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx, X0X 0X0, as authorized agent for certain
buyers as listed on the signature page (collectively referred to as the
"PURCHASERS"), on the one hand, and KMA Global Solutions International, Inc.
("KMA"), a Nevada corporation, with offices located at 0000X Xxxxxxx Xx,
Xxxxxxxxxxx, Xxxxxxx, X0X 0X0, on the other hand. (Each individually referred to
as a "Party" and collectively referred to as the "Parties").
WHEREAS,
the Parties entered into a stock purchase transaction pursuant to a Securities
Purchase Agreement dated September 21, 2007 (the "Securities Purchase
Agreement"), and certain other documents related thereto and incorporated by
reference therein; and
WHEREAS,
the Parties seek to rescind the Securities Purchase Agreement, and all documents
related thereto in effecting the contemplated stock purchase transaction (the
"Stock Purchase"), and the Parties hereby settle any dispute(s) arising
therefrom, without admitting any liability or fault, and to avoid the expense
and uncertainties of litigation;
NOW
THEREFORE, in consideration of the premises, the mutual covenants and
obligations set forth in this Agreement and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties hereto agree as follows:
1
SUPERSEDED AGREEMENT. The Stock Purchase, including all agreements underlying
the transaction, is hereby terminated on the Effective Date of this Agreement by
both Parties. This Agreement shall supersede all prior agreements between the
Parties relating to the subject matter hereof.
2
SETTLEMENT AMOUNT. The Parties agree as follows:
| (A) |
KMA will
pay to the total sum of Two Hundred Thousand US dollars (USD$200,000.00)
to Incendia Management Group Inc., in accordance with the terms described
in the attached Promissory Note, which is incorporated herein by
reference, in repayment of the sum of $200,000.00 paid by Incendia
Management Group Inc. to KMA; and
|
| (B) | PURCHASERS will deliver via Federal Express to KMA's securities counsel, at the law firm of Baker, Donelson, Bearman, Xxxxxxxx & Xxxxxxxxx, PC, all share certificates in respect of common shares of KMA Global Solutions International, Inc. issued to the PURCHASERS to date, represented by stock certificate numbers 748, 749, 750, 751 and 752 (the "Stock Certificates"), within five (5) days of the execution of this Agreement by all Parties. |
3 RELEASE
BY PURCHASERS AND AGENT. For and in consideration of the sum of Two Hundred
Thousand US dollars (USD $200,000.00) paid to AGENT by KMA in accordance with
the terms described in the attached Promissory Note, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by PURCHASERS and AGENT, PURCHASERS and AGENT do hereby fully and
forever remise, release and discharge, and by these presents, do for its agents,
servants, past, present or future officers, shareholders, directors, employees,
attorneys, representatives, parents, subsidiaries, affiliated or related
entities, affiliates, executors, administrators, predecessors, successors and
assigns, remise, release and discharge KMA and any of its agents, servants,
past, present or future officers, shareholders, directors, employees, attorneys,
representatives, parents, subsidiaries, affiliated or related entities,
affiliates, executors, administrators, predecessors, successors and assigns,
from any and all actions, causes of action, suits, debts, dues, sums of money,
accounts, reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses, damages, judgments,
extents, executions, claims and demands whatsoever in law or in equity, under
federal or state constitutions, statutes, laws, ordinances or regulations, or
under common law,whether known or unknown, foreseen or unforeseen, which
PURCHASERS or AGENT ever had, has or could have against KMA in connection with
the subject matter relating to the aforementioned Securities Purchase Agreement,
but does not release KMA from claims arising from a breach of this
Agreement.
4 RELEASE
BY KMA. For and in consideration of the return of the Stock Certificates and the
release set forth above and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged by KMA, KMA does hereby
fully and forever remise, release and discharge, and by these presents, does for
its agents, servants, past, present or future officers, shareholders, directors,
employees, attorneys, representatives, parents, subsidiaries, affiliated or
related entities, affiliates, executors, administrators, predecessors,
successors and assigns, remise, release and discharge, PURCHASERS and AGENT and
any of their respective agents, servants, past, present or future officers,
shareholders, directors, employees, attorneys, representatives, parents,
subsidiaries, affiliated or related entities, affiliates, executors,
administrators, predecessors, successors and assigns, from any and all actions,
causes of action, suits, debts, dues, sums of money, accounts, reckonings,
bonds, bills, specialties, covenants, contracts, controversies, agreements,
promises, variances, trespasses, damages, judgments, extents, executions, claims
and demands whatsoever in law or in equity, under federal or state
constitutions, statutes, laws, ordinances or regulations, or under common law,
whether known or unknown, foreseen or unforeseen, which KMA ever had, has or
could have against PURCHASERS or AGENT in connection with the subject matter
relating to the aforementioned Securities Purchase Agreement.
5
EFFECTIVE TIME OF RELEASES. The releases described above shall become effective
immediately upon the execution of this Agreement, return of the Stock
Certificates by the PURCHASERS and full satisfaction of the Promissory Note by
KMA.
6
SUCCESSORS. This Agreement shall be binding upon and inure to the benefit of the
Parties hereto and their respective heirs, successors and assigns.
7
SEVERABILITY. If any provision of this Agreement is held illegal or
unenforceable by any court of competent jurisdiction, such provision shall be
modified to the minimal extent required to make it legal and enforceable,
consistent with the spirit and intent of the Agreement. If such provision cannot
be so modified, the provision shall be deemed separable from the remaining
provisions of this Agreement and shall not affect or impair the validity or
enforceability of the remaining provisions of this Agreement. Notwithstanding
the foregoing, the obligation to pay the settlement amount as described in
section 2 of this Agreement and the releases contained in sections 3 and 4 of
this Agreement are not separable obligations.
8
GOVERNING LAW. This Agreement shall be governed by and construed in accordance
with the laws of Ontario, without giving effect to any choice of law or conflict
of law provision or rule that would cause the application of the laws of any
jurisdictions other than the province of Ontario.
9
AMENDMENTS. This Agreement shall not be amended except by a written agreement
signed by all Parties.
10
NOTICES. All notices under this Agreement shall be in writing and delivered by
certified mail, return receipt requested, to the following:
If to
PURCHASERS or INCENDIA:
Incendia
Management Group Inc.
000
Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxx X0X 0X0 Xxxxxx
Attention:
Xxxxxx Xxxxxx
If to
KMA:
KMA
Global Solutions International, Inc.
0000X
Xxxxxxx Xxxx
Xxxxxxxxxxx,
Xxxxxxx X0X 0X0 Xxxxxx
Attention:
Xxxx Xxxx
11 NOT
EVIDENTIARY. This Agreement shall not be introduced in evidence or otherwise be
used in litigation for the purposes of establishing or construing rights and
obligations of the Parties, except in an action to enforce the provisions of
this Agreement or the attached Promissory Note.
12 ENTIRE
AGREEMENT. The Parties intend that this Agreement be a novation and not an
accord and satisfaction. As of the date of this Agreement, any and all prior
agreements with respect to the subject matter hereof, whether written or oral,
between the Parties are hereby fully discharged and this Agreement, together
with the attached Promissory Note, shall supersede all agreements and
negotiations between the Parties with respect to the subject matter
hereof.
13
DISCLOSURE. The Parties each agree that, without the prior written consent of
the other Party hereto, neither of them will voluntarily disclose the existence
or content of this Agreement to any third party. This provision shall not
preclude such disclosure (a) to the independent accountants or attorneys for the
disclosing party, (b) in any regulatory filing, if counsel for the disclosing
party reasonably advises the disclosing party that such disclosure is necessary,
(c) to any existing or prospective lender or investor of the disclosing party,
(d) in any legal proceeding if required by judicial order or (e) pursuant to the
requirement of a governmental agency.
14
COUNTERPARTS. This Agreement may be executed in counterparts, in which case each
executed counterpart will be deemed an original and all executed counterparts
will constitute one and the same instrument.
IN
WITNESS WHEREOF, the Parties hereto, intending to be legally bound hereby, have
executed this Agreement as of the date first above written.
KMA
GLOBAL SOLUTIONS
INTERNATIONAL,
INC.
By: /s/ Xxxx X. Xxxx
Xxxx X.
Xxxx
Chief
Executive Officer
PURCHASERS:
NVD
INTERNATIONAL INC.
V&P
TECHNOLOGIES INC.
ADVANCED
VENDING TECHNOLOGIES INC.
GREENOCK
EXPORT HOLDING AG INC.
XXXXX
FELLOWSHIP HOLDINGS INC.
By: /s/ Xxxxxx Xxxxxx
Incendia
Management Group Inc., as authorized
Agent for
the Buyers
Per:
Xxxxxx Xxxxxx, Managing Director of
Incendia
Management Group Inc.
AGENT:
INCENDIA MANAGEMENT GROUP INC.
By: /s/ Xxxxxx Xxxxxx
Xxxxxx
Xxxxxx, Managing Director
PROMISSORY
NOTE
USD
$200,000.00 Date:
March _____________, 2008
FOR VALUE
RECEIVED, the undersigned, KMA GLOBAL SOLUTIONS INTERNATIONAL, INC., a Nevada
corporation (the "Debtor"), hereby promises to pay to Incendia Management Group
Inc. (the "Creditor"), pursuant to a Settlement Agreement and Mutual Release
dated March 21, 2008, at Creditor's offices at 000 Xxxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxx, X0X 0X0, or such other place as Agent may designate, in lawful
money of the United States of America, the principal sum of Two Hundred Thousand
and 00/100 Dollars ($200,000.00) on or before March 31, 2008.
This Note
shall bear interest from the date of April 1, 2008 on the unpaid principal
balance hereof at a rate of six percent (6%) per annum. Debtor may prepay the
principal balance hereof, in whole or in part, without paying any prepayment
penalty or finance charge.
If Debtor
pays Agent the principal amount of $200,000.00, together with the applicable
interest, this Note shall have been discharged in full and Creditor shall xxxx
this Note "Paid" and return this Note to Debtor. This Note shall be governed by
and construed in accordance with the laws of the province of
Ontario.
KMA
GLOBAL SOLUTIONS INTERNATIONAL,
INC.
By: /s/ Xxxxxxx X. Xxxx
Xxxxxxx
X. Xxxx, Chief Executive Officer
PROVINCE
XX XXXXXXX
XXXX XX
XXXXXXX
Xx this
_____ day of March, 2008, before me personally appeared , an authorized
representative of KMA GLOBAL SOLUTIONS INTERNATIONAL, INC., signer of the
foregoing instrument on behalf of KMA GLOBAL SOLUTIONS INTERNATIONAL, INC., and
acknowledged the same to be his free act and deed.
Notary
Public:_________________________________
My
Commission Expires:_________________________
