AMENDED AND RESTATED
SETTLEMENT AND MUTUAL RELEASE AGREEMENT
THIS AMENDED AND RESTATED SETTLEMENT AND MUTUAL RELEASE AGREEMENT (this
"Agreement") is made and entered into by and between IOM Holdings, Inc. ("IOMH")
and DRT Holdings, Inc. ("DRTH") and is dated April 9, 2003 for reference
purposes only and is effective as of November 5, 2000. IOMH and DRTH are each
referred to herein as a "Party" and together as the "Parties."
RECITALS
This Agreement is entered into with reference to the following facts:
A. IOMH has loaned $1 million to DRTH (the "Loan").
B. DRTH has recently indicated that it cannot pay back the Loan.
C. IOMH and DRTH have entered into a certain Settlement and Mutual Release
Agreement dated November 5, 2000 which contained certain inadvertent errors
including a reference in Section 13.3 of that agreement to parties not involved
in the matters covered by that agreement. In addition, that agreement contained
an inadvertent error on the signature page thereto stating that the agreement
was executed as of November 5, 2002 when in fact the agreement was executed as
of November 5, 2000.
D. IOMH and DRTH now desire to amend and restate in its entirety the
Settlement and Mutual Release Agreement dated November 5, 2000 to correct the
aforementioned errors and other minor typographical and other errors.
NOW, THEREFORE, in consideration of the covenants and promises contained herein,
and for other good and valuable consideration, the existence and sufficiency of
which is hereby acknowledged, the Parties hereto agree as follows:
1. Representations and Warranties.
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1.1 Authority. Each Party represents and warrants that the person signing
this Agreement on behalf of the respective Parties has full power and authority
to cause such Party to enter into this Agreement an its behalf, and to bind such
Party to the terms hereof.
1.2 Ownership of Released Matters. The Parties hereby warrant and represent
that they are the sole and lawful owners of all rights, title and interests in
and to all "Claims," as hereinafter defined, and that they have not heretofore
assigned or transferred or purported to assign or transfer to any other person
any released matters or any part or portion of any "Claims" or "Released
Matters" as defined herein.
2. Mutual Release.
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2.1 DRTH hereby transfers and assigns all of its assets to IOMH free and
clear of all liens and encumbrances, except financial institution liens. As
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consideration for such transfer, IOMH and DRTH hereby expressly release each
other (including each party's directors, officers, shareholders, assigns,
employees, agents, predecessors and attorneys) from any legal or equitable
claims ("Claims"), including, but not limited to Claims arising from the $1
million loan, under or through them, both past and present, from any and all
manner of action or actions, cause or causes of action, in law or in equity,
suits, debts, liens, contracts (express, implied in fact, or implied in law),
agreements, promises, liabilities, claims, set offs, rights and claims for
indemnity and/or contribution, refunds, overpayments, demands, damages, losses,
costs, or expenses, of any nature whatsoever, known or unknown, suspected or
unsuspected, fixed or contingent, which each now has or may hereafter have by
reason of any matter, cause or thing whatsoever from the beginning of time to
the date hereof (the "Released Matters").
2.2 As further consideration under this settlement and release, all shares
of DRTH shall be transferred to Fei Xxx Xxxx and all officers and directors of
DRTH shall resign. Fei Xxx Xxxx shall become the sole officer and director.
3. California Civil CodeSection 1542 Waiver.
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THE PARTIES HEREBY EXPRESSLY WAIVE ALL RIGHTS UNDER THE PROVISIONS OF
SECTION 1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA AND ANY SIMILAR RIGHTS
IN ANY STATE OR TERRITORY OR UNDER ANY SIMILAR STATUTE OR REGULATION OF THE
UNITED STATES OR ANY OF ITS AGENCIES. SECTION 1542 OF THE CIVIL CODE OF THE
STATE OF CALIFORNIA READS 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 AFFECTED HIS SETTLEMENT WITH THE
DEBTOR."
4. Compromise.
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This Agreement and the releases contained herein affect the compromise and
settlement of disputed and contested claims and nothing contained herein shall
be construed as an admission by any Party hereto of any liability of any kind to
any other Party. Each Party hereby expressly denies that it is in any way liable
to any other Party to this Agreement.
5. Benefit and Burden.
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This Agreement shall be binding upon and shall inure to the benefit of the
Parties hereto and their representatives, successors, assigns, agents, servants,
employees, predecessors, assignors, officers, directors, shareholders, partners,
parent companies, subsidiary companies and affiliates.
6. Cooperation.
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The Parties hereto agree to execute, acknowledge and deliver such further
and additional instruments and documents as reasonably shall be required or
appropriate to implement, confirm or perfect the provisions and intentions of
this Agreement.
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7. Waiver and Amendment.
----------------------
This Agreement may only be amended by a written agreement executed by all
of the Parties hereto.
8. Governing Law.
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This Agreement and any other documents referred to herein shall be governed
by, construed and enforced in accordance with the laws of the State of
California. Venue for any proceeding to construe or enforce this Agreement,
shall be the Superior Court in and for the County of Orange in the State of
California.
9. No Admission.
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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 of such claims,
allegations, assertions, contentions, or positions.
10. Entire Agreement; Amendment and Restatement.
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10.1 All agreements, covenants, representatives and warranties, express and
implied, oral and written, of the Parties hereto concerning the subject matter
hereof are contained herein. No other agreements, covenants, representations or
warranties, express or implied, oral or written, have been made by any party
hereto to any other Party concerning the subject matter hereof. All prior and
contemporaneous conversations, negotiations, possible and alleged agreements,
representations, covenants and warranties concerning the subject matter hereto
are merged herein. This is an Integrated Agreement.
10.2 The provisions of this Section shall, without limiting their
applicability to any other facts or circumstances, apply specifically to that
certain Settlement and Mutual Release Agreement between IOMH and DRTH dated
November 5, 2000 which is hereby amended and restated in its entirety by this
Agreement.
11. Construction.
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Each Party and counsel for each Party have reviewed and revised this
Agreement, and the normal rules of construction to the effect that any
ambiguities in this Agreement are to be resolved against the drafting parry
shall not be employed in the interpretation of this Agreement.
12. Counterparts.
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This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, and will become effective and binding upon the
Parties, as of the effective date set forth above, at such time as all of the
signatories hereto have signed a counterpart of this Agreement. All counterparts
so executed shall constitute one Agreement binding on all the parties hereto,
notwithstanding the fact that all Parties hereto may not have signed a
sufficient number of counterparts so that each Party will receive a fully
executed original of this Agreement.
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13. Understanding.
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The Parties hereto, and each of them, represent, warrant and agree as
follows:
13.1 They have received independent legal advice from their attorneys with
respect to the advisability of making the settlement provided for herein and in
entering into this Agreement;
13.2 They have made such investigation of the facts pertaining to the
settlement and the release of all matters pertaining hereto as they deem
necessary or desirable; and
13.3 Each of the Parties hereto acknowledges and understands that it has
been advised to seek independent counsel regarding the legal ramifications of
the Agreement. Each of the Parties is relying upon its own business judgment and
has been provided with the opportunity to consult with independent counsel.
14. Voluntary Agreement.
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The Parties hereto, and each of them, further represent and declare that
they have carefully read this Agreement and know the contents hereof and that
they sign the same freely and voluntarily.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on
April 9, 2003 to be effective as of the 5th day of November, 2000.
IOM HOLDINGS, INC.
BY: /s/ Xxxx Xxxxxxx
TITLE: /s/ President
DRT HOLDINGS, INC.
BY: /s/ Fei Xxx Xxxx
TITLE:/s/ President
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