SETTLEMENT AGREEMENT AND MUTUAL RELEASE
AND
MUTUAL RELEASE
This
Settlement Agreement and Mutual Release ("Agreement") is entered into as of
March 30, 2010 by and between Xxxxxxx X. Xxxxxx (“Xxxxxx”), Helix Wind, Corp., a
Nevada corporation (“Helix Wind”) and Xxxxx Xxxxxxxxxx
(“Xxxxxxxxxx”). As used herein, the term “the Parties” shall be used
to refer to Xxxxxx, Helix Wind and Xxxxxxxxxx jointly.
RECITALS
WHEREAS, Xxxxxx and Helix Wind entered
into an Employment Agreement dated June 1, 2008 for the employment of Xxxxxx by
Helix Wind.
WHEREAS, on or about July 10, 2009
Xxxxxx filed an action against Helix Wind. Xxx Xxxxxxx and Xxxxxxxxxx in the San
Diego Superior Court, Central District, Case No. 00-0000-00000000 entitled Xxxxxxx Xxxxxx v. Helix Wind, et
al. alleging, inter
alia, breach of the Employment Agreement.
WHEREAS, on or about November 6, 2009
Helix Wind filed a cross-complaint alleging, inter alia, breach of the
Employment Agreement, naming Xxxxxx as cross-defendant. Xxxxxx’x
complaint and all amendments thereto, and Helix Wind’s related cross-complaint
in Case No. 00-0000-00000000 entitled Xxxxxxx Xxxxxx v. Helix Wind, et
al. shall be referred to hereunder and collectively as the
(“Action”).
WHEREAS, each of the Parties desire to
fully and finally resolve all claims that they have or may have against any of
the Parties related to the Action.
WHEREFORE,
in consideration of the foregoing Recitals and the agreements and promises
hereinafter set forth and for good and valuable consideration, the Parties
hereto agree as follows:
1.00 PAYMENT. Helix
Wind agrees that it will pay the sum of $150,000.00 (the “Settlement Payment”)
simultaneous with the execution of this Agreement by all parties. The
Settlement Payment shall be made by wire transfer to “Law Office of Xxxx Xxxx
Client Trust Account” to an account furnished by Xxxx Xxxx to Helix Wind in
writing or by e-mail transmission.
2.00 RELEASE. In consideration of the
Settlement Payment and the other promises and considerations set forth in this
Agreement, Xxxxxx, Helix Wind and Xxxxxxxxxx do hereby mutually release, acquit
and forever discharge each other from any and all claims, demands, damages,
causes of action or suits in equity, of any kind whatsoever, at common law,
statutory or otherwise, which they have or may have, known or unknown, now
existing or that might arise hereafter that were or could have been asserted in
the Action, except for the promises and conditions set forth in this
Agreement.
Nothing
in this Agreement shall be construed as a release in favor of Defendant Xxx
Xxxxxxx, and Xxxxxx expressly retains all rights against Xxxxxxx.
3.00 WAIVER OF
SECTION 1542. As to the matters
released herein, the Parties expressly waive any and all rights against one and
other under Section 1542 of the California Civil Code
which provides as follows:
"A
GENERAL RELEASE DOES NOT EXTEND TO THE 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 EFFECTED HIS SETTLEMENT WITH THE
DEBTOR."
4.00 FILING OF
DISMISSALS. The Parties
agree that:
A. Within
three (3) business days of receipt of the Settlement Payment, Xxxxxx shall cause
its attorneys to execute and file a request for dismissal with prejudice of its
complaint in the Action against Helix Wind, Xxxxxxx and Xxxxxxxxxx, and shall
provide Helix Wind and Xxxxxxxxxx a file-stamped copy of the dismissal from the
San Diego Superior Court.
B. Within
three (3) business days after the Company receives the file-stamped copy that
the Complaint is dismissed, Helix Wind shall cause its attorneys to execute and
file a request for dismissal with prejudice of its cross-complaint against
Xxxxxx in the Action, and shall provide Xxxxxx, Xxxxxxx and Xxxxxxxxxx a
file-stamped copy of the dismissal from the San Diego Superior
Court.
5.00 NO
ADMISSION. In entering into this
Agreement, no party herein is admitting the sufficiency of any claims,
allegations, assertions, contentions, or positions of any other party, nor the
sufficiency of the defenses to any such claims, allegations, assertions,
contentions, or positions. The Parties hereto desire to resolve the
action in an amicable fashion, and pursuant to Code of Civil
Procedure Section 877, the Parties have entered into this Agreement in
good faith.
6.00 GENERAL
TERMS AND CONDITIONS. The Parties to this
Agreement, and each of them, acknowledge and agree that:
i. this
Agreement and its reduction to final form is the result of extensive good faith
negotiations between the Parties through their respective counsel;
ii. said
counsel have carefully reviewed and examined this Agreement for execution by
said Parties, or any of them; and
iii. any
statute or rule of construction that ambiguities are to be resolved against the
drafting party should not be employed in the interpretation of this
Agreement.
iv. Paragraph
headings are for reference only and shall not affect the interpretation of any
paragraph hereto.
7.00 ENTIRE
INTEGRATED AGREEMENT. This Agreement constitutes the entire
and sole agreement of the parties hereto and constitutes a written integration
of all negotiations between the parties relating to the subject matter hereof,
incorporating each and every representation, promise or warranty, whether oral
or written, between the parties with respect hereto, and supersedes any and all
previous settlement agreements entered into by the parties relating to the
Action. No party has made any representation, promise or warranty to
the other with respect to the matters addressed herein except as expressly set
forth in this Agreement. The parties hereto agree to execute and
deliver any and all additional papers, documents, and other assurances, and
shall do any and all acts and things reasonably necessary in connection with the
performance of their obligations hereunder and to carry out the intent of the
parties to this Agreement.
8.00 REPRESENTATIONS
REGARDING OWNERSHIP OF CLAIMS. Each party represents,
covenants and warrants that it is the sole and lawful owners of any and all
claims, matters, and causes of action which are the subject of this Agreement,
and that they have not previously assigned, hypothecated or otherwise
transferred any of the claims released herein.
9.00 AUTHORITY
TO EXECUTE. Each of the individuals who execute this Agreement
individually warrants and represents that such individual has the ability, right
and authority to execute this Agreement on behalf of the person or entity for
whom the individual executes this Agreement.
10.00 ADVICE OF
COUNSEL. The Parties represent and warrant that they have had
advice of counsel of their own choosing in the negotiations for and the
preparation of this Agreement, and that they have read this Agreement, or had
the same read to them by counsel, and that they have had this Agreement fully
explained to them by their counsel, and they are fully aware of the Agreement's
legal effect. This Agreement is to be construed fairly and not in
favor of or against any party, regardless of which party or parties drafted or
participated in the drafting of its terms.
11.00 GOVERNING
LAW. This Agreement is made and entered into in the County of
San Diego, State of California and shall be governed by and construed in
accordance with the laws of the State of California.
12.00 AMENDMENTS
IN WRITING. It is expressly understood and agreed that this
Agreement may not be altered, amended, modified or otherwise changed in any way
whatsoever, except in writing, executed by all of the parties to this Agreement,
or their authorized representatives.
13.00 COUNTERPART
SIGNATURES AND MULTIPLE ORIGINALS. The parties agree that this Agreement
may be executed in one or more counterparts and may be delivered by facsimile
transmission, all of which, taken together, shall constitute one and the same
instrument.
14.00 INJUNCTIVE
RELIEF. The Parties agree that a breach of this Agreement will
cause irreparable injury to the other Parties for which he would have no
adequate remedy at law. Accordingly, the Parties agree that each of
the Parties shall be entitled to immediate injunctive relief prohibiting any
breach of those sections of this Agreement.
IN
WITNESS WHEREOF, this Agreement has been executed by each of the parties on the
date shown above.
|
DATED:_______________,
2010
|
By:
|
/s/ Xxxxxxx X. Xxxxxx | |
| Name: Xxxxxxx X. Xxxxxx | |||
|
DATED:_______________,
2010
|
By:
|
/s/ Xxxxx Xxxxxxxxxx | |
| Name: Xxxxx Xxxxxxxxxx | |||
| Title: Chief Executive Officer | |||
|
DATED:_______________,
2010
|
By:
|
/s/ Xxxxx Xxxxxxxxxx | |
| Name: Xxxxx Xxxxxxxxxx | |||
[Signature Page to Settlement
Agreement and Release dated March 30, 2010]
