SETTLEMENT AGREEMENT AND GENERAL RELEASE
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This Settlement Agreement and General Release ("Agreement") is made by and
between Xxxxxxx X. Xxxxx, of Medford, Massachusetts ("Xxxxx"), Pharlo Solutions,
LLC and Xxxxxx Capital Corp. ("Xxxxxx" or the "Company"), a Nevada corporation.
WHEREAS, Xxxxxx and Xxxxx entered into a certain Consulting Agreement,
dated November 26, 2002 (the "Consulting Agreement"), pursuant to which Xxxxx
agreed to provide certain consulting services to Xxxxxx in consideration for
certain consideration described therein;
WHEREAS, a dispute has arisen between Xxxxx and Xxxxxx regarding the
services provided by Xxxxx to Xxxxxx and the compensation for those services as
set forth in the Agreement;
WHEREAS, Xxxxx is a party, has been a party and may become a party to
certain right of first refusal agreements by and between Xxxxx and Pharlo Citrus
Technologies, Inc., a Florida corporation ("Pharlo Citrus");
WHEREAS, pursuant to an Assignment of Right of First Refusal, dated
February 13, 2003, Xxxxx and Tri Van To assigned, sub-licensed and for all
purposes granted all their right, title and interest, held either individually
or in any other capacity, in the license agreement, dated July 19, 2002, by and
between Xxxxx and Pharlo Citrus to Pharlo Solutions, LLC ("Pharlo Solutions")
WHEREAS, Xxxxxx and Xxxxx now desire to resolve all controversies and
claims existing between them, in order to avoid litigation and its attendant
expenses and time demands;
NOW THEREFORE, in consideration of the mutual promises and obligations set
forth below, Xxxxxx and Xxxxx hereby agree as follows:
1. Transfer of Certain Rights. In consideration of the obligations set
forth in this Agreement, each of Xxxxx and Pharlo Solutions sells, conveys,
grants, assigns, transfers and delivers to Xxxxxx, free and clear of all liens,
security interests and other encumbrances, all of Xxxxx'x right, title, and
interest in any right of first refusal that Xxxxx has owned, currently owns or
has an interest in or hereafter acquires with respect to Pharlo Citrus' licensed
technology.
2. Cash Obligations to Xxxxx. In consideration of the obligations set
forth in this Agreement, commencing on the date of this Agreement, and
continuing until the termination of or expiration of Pharlo Citrus' patent to
the licensed technology, Xxxxxx will pay to Xxxxx, on a monthly basis, one half
of one percent (0.05%) of Xxxxxx'x Net Revenues (as defined below) in an amount
not to exceed $400,000 in any one calendar year. "Net Revenues" means monies,
credits and other consideration actually received by Xxxxxx from the sale or
other disposition of Xxxxxx'x products, less the following: (a) sales, use and
excise taxes imposed with respect to such dispositions, (b) prepaid or allowed
shipping charges included in such consideration, (c) discounts, and (c) amounts
allowed or credited on returns.
3. Termination of Consulting Agreement. Immediately upon execution of this
Agreement, the Consulting Agreement shall terminate and become void and have no
effect.
4. Release of Xxxxxx by Xxxxx. For and in consideration of this Agreement,
and except for the obligations of Xxxxxx under the terms of this Agreement,
Xxxxx, for himself, his heirs and his assigns, unconditionally releases and
forever discharges Xxxxxx and its predecessors, successors, assigns, parents,
subsidiaries, divisions, insurers, and their past and present directors,
officers, employees, stockholders, partners, agents, trustees, attorneys and
representatives of any kind, from all actions, causes of action, suits, debts,
dues, covenants, contracts, bonuses, controversies, agreements, promises, claims
of every nature and kind, charges, complaints and demands whatsoever, in law or
equity, from the beginning of the world to the day and date of this Agreement
including, but not in limitation of the foregoing general terms: any claims
related to the Consulting Agreement, any claims arising from Xxxxx'x services to
or separation from the Company; any claims or demands related to salary,
bonuses, commissions, stock, stock options, vacation or other time off pay,
fringe benefits, additional severance pay, or any other form of compensation;
any claims Xxxxx may have under any federal or state labor, employment or
discrimination statute, rule or regulation, including but not limited to, Title
VII of the Civil Rights Act of 1964 as amended, the Fair Labor Standards Act of
1938 as amended, the Americans with Disabilities Act, the Federal Rehabilitation
Act of 1973, Chapter 151B of the Massachusetts General Laws, or at common law,
and similar provisions under the laws of any other State, and any other laws or
regulations relating to employment, discrimination, retaliation or civil rights;
any tort claims; any contract claims; and any claims for fraud, defamation,
emotional distress and/or breach of the implied covenant of good faith and fair
dealing. Except for the obligations of Xxxxxx under this Agreement, it is the
intent of Xxxxx to release all claims of every nature and kind, whether known or
unknown, accrued or unaccrued, which he may have against Xxxxxx as of the date
of the execution of this Agreement.
5. Release of Xxxxx By Xxxxxx. For and in consideration of this Agreement,
and except for the obligations of Xxxxx under the terms of this Agreement,
Xxxxxx, for itself and its predecessors, successors, assigns, parents,
subsidiaries, divisions, insurers, and their past and present directors,
officers, employees, stockholders, partners, agents, trustees, attorneys and
representatives of any kind, unconditionally releases and forever discharges
Xxxxx, from all actions, causes of action, suits, debts, dues, covenants,
contracts, bonuses, controversies, agreements, promises, claims of every nature
and kind, charges, complaints and demands whatsoever, in law or equity, from the
beginning of the world to the day and date of this Agreement, relating to
Xxxxx'x services to Xxxxxx. Except for the obligations of Xxxxx under this
Agreement, it is the intent of Xxxxxx to release all claims of every nature and
kind, whether known or unknown, accrued or unaccrued, which it may have or could
have had against Xxxxx as of the date of the execution of this Agreement.
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6. Confidentiality. The terms of this Agreement shall remain confidential,
except that Xxxxxx may disclose the terms of the Agreement to its directors,
stockholders, lenders, investors, prospective investors, employees, attorneys,
accountants and auditors, and Xxxxx may disclose the terms of the Agreement to
his attorneys, accountants and auditors. In addition, either party may disclose
the terms of this Agreement as required by state, local or federal law.
7. No Admissions. Nothing in this Agreement shall constitute, or be deemed
or interpreted to be, an admission of liability by either party with respect to
any claim either party may have had against the other, nor the admission of any
factual allegation underlying any such claim.
8. Non-disparagement. Xxxxx agrees that he shall not directly or
indirectly publish or make, either orally or in writing (whether by electronic
means or otherwise), any derogatory, defamatory, or disparaging statements about
Xxxxxx, or any of its parents, divisions, affiliates, related entities,
officers, directors, employees or attorneys. Xxxxxx agrees that it shall not
directly or indirectly publish or make, either orally or in writing (whether by
electronic means or otherwise), any derogatory, defamatory, or disparaging
statements about Xxxxx.
[9. Return of Company Property. Within three business days of the
execution of this Agreement, Xxxxx shall return to Xxxxxx all documents,
proprietary information and any other property of the Company in his possession
including, but not limited to, business plans, executive summaries, business
cards, Company correspondence, agreements and technology information.]
[10. Confidentiality of Proprietary Information. Xxxxx shall maintain the
confidentiality of all Proprietary Information of Xxxxxx and may not disclose
any such information to third parties. Proprietary Information means any
confidential and/or trade secret information of Xxxxxx and/or others possessed
by Xxxxxx relating to, among other things, Xxxxxx'x products, services,
technology, methodologies, specifications, manufacturing or operating methods,
know-how, business or marketing plans, or business relationships.]
11. Acknowledgments. Xxxxxx and Xxxxx acknowledge that they have consulted
with independent counsel of their selection in connection with this Agreement,
and that they have had full opportunity to discuss with their attorneys the
terms and legal significance of this Agreement, which they freely enter into.
12. Entire Agreement; Modifications. This Agreement contains the entire
understanding between the parties and may not be modified except in writing
signed by the parties. This Agreement is executed without any reliance on any
statement or representation by Xxxxxx or Xxxxx not set forth herein. The parties
further agree that there are no other terms, conditions or representations made
by the parties that are not contained in this Agreement, and that any collateral
representation, statement or undertaking not made a part of this Agreement is
not enforceable.
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13. Parties Bound. This Agreement shall be binding upon and inure to the
benefit of both parties and their respective legal representatives, agents,
board members, officers, employees, heirs, executors, administrators,
successors, assigns, parents, subsidiaries and affiliates.
14. Governing Law. The parties understand and agree that this Agreement
shall be governed by the laws of the United States and the Commonwealth of
Massachusetts as to performance and interpretation. Any action to enforce this
Agreement or any claim by any of the parties arising out of an asserted breach
of this Agreement, shall be brought exclusively in state or federal court in
Massachusetts.
15. Severability. Should any provision of this Agreement be declared
illegal or unenforceable by any court of competent jurisdiction, excluding the
general release language, such provision shall immediately become null and void,
leaving the remainder of this Agreement in full force and effect.
16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
THE PARTIES ACKNOWLEDGE THAT THEY HAVE CAREFULLY READ THIS AGREEMENT, THAT
THEY UNDERSTAND IT, THAT THEY HAVE BEEN GIVEN THE OPPORTUNITY TO ASK ANY
QUESTIONS CONCERNING THIS AGREEMENT, THAT, FROM XXXXX'X PERSPECTIVE, NEITHER
XXXXXX NOR ITS MANAGERS, REPRESENTATIVES, DIRECTORS, OFFICERS OR EMPLOYEES HAVE
MADE ANY REPRESENTATIONS CONCERNING THE TERMS OR EFFECTS OF THIS AGREEMENT OTHER
THAN THOSE CONTAINED HEREIN AND THAT XXXXX FREELY, VOLUNTARILY AND KNOWINGLY
ENTERS INTO IT, AND, FROM XXXXXX'X PERSPECTIVE, XXXXX HAS NOT MADE ANY
REPRESENTATIONS CONCERNING THE TERMS OR EFFECTS OF THIS AGREEMENT OTHER THAN
THOSE CONTAINED HEREIN AND THAT XXXXXX FREELY, VOLUNTARILY AND KNOWINGLY ENTERS
INTO IT
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Witness Xxxxxxx X. Xxxxx
December __, 2004
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Xxxxxx Capital Corp.
By
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Witness Its Authorized Representative
December __, 2004
Pharlo Solutions, LLC
By
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Witness Its Authorized Representative
December __, 2004
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