SETTLEMENT AGREEMENT AND RELEASE
Exhibit
10.3
SETTLEMENT
AGREEMENT AND RELEASE
THIS SETTLEMENT AGREEMENT AND RELEASE
(the “Agreement”), is made as of the 15 day of October, 2008 (the
“Effective Date”) by HYBRID
DYNAMICS CORPORATION, a Nevada corporation (“Hybrid” or the
“Company”), RED IRON GROUP,
LLC, a Utah limited liability company (“RIG”), PUKKA USA, INC., a Utah
corporation (“Pukka”), and XXXX
XXXXXXX, XXXXXXX XXXXXXXX and XXXXXX XXXXXX (collectively,
the “Terminating Shareholders”).
WHEREAS, the Terminating
Shareholders are former officers and directors of Hybrid, and are now desirous
of terminating their ownership interest in the Company and releasing the Company
from any and all claims they may have against the Company, RIG and Pukka,
and
WHEREAS, Hybrid, RIG and Pukka
are desirous of releasing any and all claims they may have against the
Terminating Shareholders.
NOW, THEREFORE, WITNESSETH
that in consideration of the representations, warranties, covenants and
agreements set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Hybrid, and the
Terminating Shareholders hereby agrees as follows:
1. Mutual Global
Release. The Terminating Shareholders, individually and
collectively, and for any affiliate corporation, partnership, limited liability
company, proprietorship, trust, or other form of business entity related
directly or indirectly to any of the foregoing, and for each of their respective
heirs, administrators, executors, beneficiaries, legatees, devisees, trusts,
trustees, insurers, attorneys, experts, consultants, partners, joint venturers,
members, officers, directors, shareholders, employees, contractors, alter egos,
agents, representatives, predecessors, successors and assigns, on the one hand,
and Hybrid, RIG and Pukka, and any parent, subsidiary or affiliate corporation,
partnership, limited liability company, proprietorship, trust, or other form of
business entity related directly or indirectly to any of the foregoing, and each
of their respective heirs, administrators, executors, beneficiaries, legatees,
devisees, trusts, trustees, insurers, attorneys, experts, consultants, partners,
joint venturers, members, officers, directors, shareholders, employees,
contractors, alter egos, agents, representatives, predecessors, successors and
assigns, on the other hand, do each hereby release, acquit, and forever
discharge the other from any and all claims, actions, causes of action,
judgments, awards, costs, expenses, attorneys’ fees, debts, obligations,
promises, representations, warranties, demands, acts, omissions, rights and
liabilities, of any kind and nature whatsoever, including but not limited to
those at law, in equity, in tort, in contract, whether or not asserted to date,
and whether known or unknown, suspected or unsuspected, which have arisen, are
arising or may in the future arise, directly or indirectly, from or in
connection with any matter or transaction of any kind or nature undertaken from
the beginning of time until the date hereof, including, but not limited to any
and all rights or claims to stock ownership, equity ownership, ownership of debt
instruments or any other rights of ownership, including options or warrants,
which the Terminating Shareholders may have in Hybrid or any of its affiliates,
or which Hybrid may have in any of the Terminating
Shareholders
or their affiliates (the matters referred to above being hereinafter
referred to as the “RELEASED CLAIMS”).
2. Indemnification of the
Terminating Shareholders. In consideration for the
Releases, Transfer of Stock and Assignment of Patent Rights by the Terminating
Shareholders (a) Hybrid shall hold harmless the Terminating Shareholders from
and against all debts, obligations, claims against and liabilities of Hybrid,
whether known or unknown, other than those obligations for which the Terminating
Shareholders are personally liable, and expressly including all obligations set
forth in Attachment A attached hereto, (b) RIG shall hold harmless the
Terminating Shareholders from and against all debts, obligations, claims against
and liabilities of RIG, whether known or unknown, other than those obligations
for which the Terminating Shareholders are personally liable, and expressly
including all obligations set forth in Attachment B attached hereto and (c)
Pukka shall hold harmless the Terminating Shareholders from and against all
debts, obligations, claims against and liabilities of Pukka, whether known or
unknown, other than those obligations for which the Terminating Shareholders are
personally liable, and expressly including all obligations set forth in
Attachment C attached hereto.
3. Transfer of Stock and
Assignment of Patent Rights. In consideration for the
Release and Indemnification by Hybrid, RIG and Pukka:
(a) the
Terminating Shareholders hereby agree to transfer, assign and convey to Hybrid
or to its assignee(s) as may be hereafter designated, all shares of stock of
Hybrid owned by the Terminating Shareholders as of date hereof, and more fully
set forth in Attachment D hereto, by delivery of Stock Powers, in form and
content substantially similar to that attached hereto as Attachment E, from each
Terminating Shareholder individually, which Stock Powers shall be executed in
blank with Medallion Signature guarantees; and
(b) Xxxxxxx
XxXxxxxx hereby agrees to grant and assign to Pukka all of XxXxxxxx’x right,
title and interest in and to all Patents previously contributed to Pukka, by
execution and delivery of the Certificate of Acknowledgment of Assignment of
Patent in the form and content substantially similar to that attached hereto as
Attachment F, which Patents are more fully described in Exhibit A
thereto.
(c) The
Stock Powers and Patent Assignment shall be delivered to Hybrid upon execution
of this Agreement.
4. Waiver of “California
§1542-Type” Provisions. Section 1542 of the
California Civil Code provides that:
A GENERAL
RELEASE DOES NOT EXTEND TO 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 AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
The
parties to this Agreement each represent, warrant and agree that each of them
understands the foregoing language and its intent, and do hereby expressly waive
all rights
that each
has or may have under California §1542 and all other similar rights in other
states or territories of the United States of America, or any other
jurisdiction, as said language may apply to the releases in this Agreement
only.
5. Covenant Not to
Xxx. Except for the enforcement of this Agreement or any
rights preserved under this Agreement, the parties hereto hereby covenant that
they will not, based on any Released Claim, xxx or bring any claim or action
against the other. This Covenant Not to Xxx shall be a complete defense to any
such claim or suit by any of the parties hereto against the other. Further, the
parties shall not solicit the instigation of any legal action by any third party
nor communicate this settlement to any third person absent an order from a court
or regulatory body authorized to issues subpoenas.
6. Governing
Law. This Agreement shall be governed by the laws
of the State of Nevada as such laws are applied to agreements between Nevada
residents entered into and to be performed entirely within the State of
Nevada.
7. Survival. The
covenants, agreements, representations and warranties contained in this
Settlement Agreement and Release shall be continuing and shall survive the
execution, closing and termination hereof and of the documents described
herein.
8. Breach. In
the event of any breach of this Agreement, the prevailing party in any action to
enforce any provision hereof shall be entitled to collect all costs and a
reasonable sum for attorney fees.
9. Counterparts/Facsimile.
This Settlement Agreement and Release may be executed in counterparts, each of
which shall be deemed a duplicate original, but all of which together shall
constitute one and the same instrument. Facsimile signatures shall be
binding on any party providing such signature.
IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be executed by their duly
authorized representatives as of the date first written above.
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HYBRID
DYNAMICS CORPORATION
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By:
/s/ XXXX
XXXXX
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Print
Name: Xxxx Xxxxx
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Print
Title: Director
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RED
IRON GROUP, LLC
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By:
/s/ XXXX
XXXXX
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Print
Name: Xxxx Xxxxx
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Print
Title: Director
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PUKKA
USA, INC.
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By:
/s/ XXXX
XXXXX
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Print
Name: Xxxx Xxxxx
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Print
Title: Director
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TERMINATING
SHAREHOLDERS:
/s/
XXXX
XXXXXXX
XXXX
XXXXXXX
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/s/
XXXXXXX
XXXXXXXX
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XXXXXXX
XXXXXXXX
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/s/
XXXXXX
XXXXXX
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XXXXXX
XXXXXX
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