SETTLEMENT AGREEMENT AND MUTUAL RELEASE OF CLAIMS
Exhibit
99.2
SETTLEMENT
AGREEMENT AND MUTUAL RELEASE OF CLAIMS
This
Settlement Agreement and Mutual Release of Claims Agreement ("Settlement
Agreement") is made and entered into as of the last date of execution of this
Settlement Agreement as shown on the signature page of this Settlement Agreement
(“Effective Date”) by and between PSPP Holdings, Inc., a Nevada Corporation,
(“PSPP”); UC HUB Group, Inc., a Nevada Corporation, (“UCHUB”); eSafe, Inc., a
Nevada Corporation, (“ESAFE”); Xxxxxx Family Partners, a California Limited
Partnership (“WFP”); Piedmont Properties, Inc., a, Oregon corporation
(“PIEDMONT”); Xxxxx Xxxxxx, an individual (“XXXXXX”); Xxxxxxx Xxxxxxxx, an
individual (“XXXXXXX”); Xxxx Xxxxxxxx, an individual (“XXXX”) and Xxxxxxx Xxxxx,
an individual (“XXXXX”) hereinafter collectively or individually referred to as
the “Parties” or “Party,” respectively.
Whereas,
UCHUB,
et. al., filed an action in the Unites States District Court, Central District
of California, Western Division, on October 18, 2007 entitled action number
CV07-6776 AHM (SSx) (“The Action”); and
Whereas,
the
Defendants to The Action have offered and UCHUB, XXXXXX and WFP have agreed
to
settle this dispute and to resolve The Action without the cost of continued
litigation; and
Whereas,
the
Parties to this Settlement Agreement intend that this Settlement Agreement
shall
be enforceable pursuant to the California Code of Civil Procedure Section 664.6
upon any Parties’ noncompliance with the terms of this Settlement Agreement.
Now,
Therefore,
for and
in consideration of the mutual covenants and promises herein contained and
other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, it is hereby agreed by and between the Parties as
follows:
1. PSPP,
UCHUB and ESAFE shall immediately enter into an agreement to rescind the
Acquisition Agreement (the “Rescission Agreement”). Such Rescission Agreement
shall be effective on even date hereof and shall be annexed hereto as an Exhibit
and become a part of this Settlement Agreement.
2. Subject
to the conditions of this Settlement Agreement and the Rescission Agreement,
the
Parties to this Settlement Agreement, on their own behalf and on behalf of
their
respective, general and limited partners, corporate parents, subsidiaries,
affiliates, officers and directors, attorneys, agents, representatives,
predecessors in interest, shareholders, successors and ssigns,
and each of them, hereby release and forever discharge each other, and their
general and limited partners, corporate parents, subsidiaries, affiliates,
officers, directors, employees, attorneys, agents, representatives, predecessors
in interest, shareholders, successors, and assigns, and each of them separately
and collectively, from any and all charges, complaints, claims, liens, demands,
causes of action, obligations, loans, damages and liabilities, of every kind,
nature and description whatsoever, known or unknown, that the Parties to this
Settlement Agreement or those joindered to this Settlement Agreement have had
in
the past, or now have, or may have in the future against each other, arising
directly or indirectly out of, or related in any way to: (i) any claims asserted
in The Action or which could have been asserted in The Action; (ii) the
Acquisition Agreement; (iii) this Settlement Agreement; (iv) the agreements
dated August 16, 2007 (“August 16 Agreements”); (v) or any other subsequent
agreements or events pertaining to the subject matter thereof including but
not
limited to any and all tort, contract and statutory claims, equitable claims,
and any and all claims arising under any statute, decision, executive order,
court order, regulation, or ordinance, which could have been asserted or might
be asserted now or in the future.
| 1 | PSPP | UCHUB | ||
| PIEDMONT | ESAFE | |||
| XXXXXXX | WFP | |||
| XXXX | XXXXXX | |||
| CHERISH |
3. The
Parties to this Settlement Agreement expressly understand and acknowledge that
it is possible that unknown losses or claims exist or that present losses may
have been underestimated in amount or severity, and the Parties have explicitly
taken this into account in determining the consideration to be provided by
way
of this Settlement Agreement, and a portion of said consideration, having been
bargained for between the Parties with the knowledge of the possibility of
such
unknown claims, was given in exchange for a full accord, satisfaction and
discharge of all such claims arising from or relating to The Action.
Consequently, the Parties to this Settlement Agreement expressly waive all
rights under California Civil Code Section 1542, which 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.
4. PSPP,
XXXXXXX, XXXX and XXXXX, on the one hand (referred to in this ¶4 only as the
“Gotshalk Indemnitors”), shall individually and collectively indemnify, defend
and hold harmless UCHUB, WFP and XXXXXX, and any of their respective, general
and limited partners, corporate parents, subsidiaries, affiliates, officers
and
directors, attorneys, agents, representatives, predecessors in interest,
shareholders, successors and assigns, on the other hand (referred to in this
¶4
only as the “Xxxxxx Indemnitees”), from and against any and all actions, claims,
losses, damages, liabilities, awards, costs and expenses (including legal fees)
resulting from
or
arising out of any claim, cause of action or lawsuit made, alleged or filed
against the Xxxxxx Indemnitees, individually or as a group, arising out of
or in
any way connected to XXXXXX’x actions or inactions as an officer, director,
employee or representative of PSPP and/or ESAFE; the Acquisition Agreement;
the
August 16, 2007 Agreements; this Settlement Agreement; the Rescission Agreement;
and/or any other agreements or events pertaining to the subject matters thereof.
The Gotshalk Indemnitors shall defend and settle, at their sole expense, and
through counsel of the Xxxxxx Indemnitees’ choosing, all suits or proceedings
arising therefrom. The Xxxxxx Indemnitees, as the case may be, shall immediately
inform PSPP and/or the Gotshalk Indemnitors, in writing of any such suit or
proceeding against any of the Xxxxxx Indemnitees. The Xxxxxx Indemnitees, at
their individual discretion, and without limiting the obligations of the
Gotshalk Indemnitees, shall have the right to participate in the defense of
any
such suit or proceeding; provided
however,
that
should an apparent conflict be deemed to have arisen between the Xxxxxx
Indemnitees and the Gotshalk Indemnitors, the Xxxxxx Indemnitees pursuant to
this ¶4, shall retain independent legal counsel and the Gotshalk Indemnitors
shall be responsible for and shall pay for said counsel, to continue the
representation and defense of the Xxxxxx Indemnitees.
| 2 | PSPP | UCHUB | ||
| PIEDMONT | ESAFE | |||
| XXXXXXX | WFP | |||
| XXXX | XXXXXX | |||
| CHERISH |
5. Notwithstanding
the foregoing ¶4 UCHUB, WFP and XXXXXX, on the one hand (referred to in this ¶5
only as the “Xxxxxx Indemnitors”), shall individually and collectively
indemnify, defend and hold harmless PSPP, XXXXXXX, XXXX and XXXXX, and any
of
their respective, general and limited partners, corporate parents, subsidiaries,
affiliates, officers and directors, attorneys, agents, representatives,
predecessors in interest, shareholders, successors and assigns, on the other
hand (referred to in this ¶5 only as the “Gotshalk Indemnitees”), from and
against any and all actions, claims, losses, damages, liabilities, awards,
costs
and expenses (including legal fees) resulting from or arising out of any claim,
cause of action or lawsuit made, alleged or filed against the Gotshalk
Indemnitees, individually or as a group, by or on behalf of a shareholder of
UCHUB arising solely out of or in connection to KYLE’s or XXXXX’x actions or
inactions as officers, directors, employee or representative of ESAFE; the
Acquisition Agreement; this Settlement Agreement; the August 16 Agreements;
or
any other subsequent agreements or events pertaining to the subject matter
thereof. Notwithstanding the foregoing, the indemnification granted herein
in
this ¶5, only applies to those UCHUB shareholders of record between May 28, 2007
and the Effective Date hereof, and only to the extent that said shareholders
were not also shareholders of PSPP during the same period. The Xxxxxx
Indemnitors shall defend and settle, at their sole expense, and through counsel
of the Gotshalk Indemnitees’ choosing, all suits or proceedings arising
therefrom. The Gotshalk Indemnitees, as the case may be, shall immediately
inform the Xxxxxx Indemnitors, in writing of any such suit or proceeding against
the Gotshalk Indemnitees. The Gotshalk Indemnitees, at their individual
discretion, shall have the right to participate in the defense of any such
suit
or proceeding; provided
however
that
should an apparent conflict be deemed to have arisen between the Gotshalk
Indemnitees and the Xxxxxx Indemnitors, the Gotshalk Indemnitees pursuant to
this ¶5, shall retain independent legal counsel and the Xxxxxx Indemnitors shall
be responsible for and shall pay for said counsel, to continue the
representation and defense of the Gotshalk Indemnitees.
| 3 | PSPP | UCHUB | ||
| PIEDMONT | ESAFE | |||
| XXXXXXX | WFP | |||
| XXXX | XXXXXX | |||
| CHERISH |
6. PSPP,
XXXXXXX, XXXX and XXXXX expressly understand and acknowledge that the release
given by them as setout in ¶2 and the indemnification given by them as setout in
¶4, is to include and bind them each individually, as well as all of their
general and limited partnerships, corporations, subsidiaries, or other entities,
and their affiliates, officers and directors, attorneys, agents,
representatives, predecessors in interest, shareholders, successors and assigns,
which they have or now have, or in the future may have, any interest in
whatsoever, whether directly or indirectly by ownership, or as a director or
officer, agent, or otherwise, including, without limitation Ararat, LLC (a
Texas
LLC); Dream Apartments TV Corporation (a Nevada registered Corporation); Tall
Tree Cattle Company, Inc. (an Oregon corporation); and Top Flight Consulting,
LLC (a California limited liability company ). Specifically, and not as a
limitation, PSPP, XXXXXXX, XXXX and XXXXX agree to cause Ararat, LLC (a Texas
LLC); Dream Apartments TV Corporation (a Nevada registered Corporation);
Piedmont Properties, Inc (an Oregon corporation); Tall Tree Cattle Company,
Inc.
(an Oregon corporation); and Top Flight Consulting, LLC (a California limited
liability company) to agree to this release by affixing their signature hereto
as joinder to this Settlement Agreement. Furthermore, PSPP, XXXXXXX, XXXX and
XXXXX hereby warrant that they do not now have any interest in the ability
to
sign no behalf of Xxxxxxx Xxxx, Spur Sherwood, LLC and Xxxxxxx Holdings, Inc.
a
Colorado corporation.
7. Upon
full
compliance with the terms and consideration set forth herein and in the
Rescission Agreement, UCHUB, WFP and XXXXXX shall file a dismissal of The
Action.
8. Upon
dismissal of The Action in accordance with ¶7 above, each Party agrees to bear
their own costs of suit and attorneys fees incurred in connection with The
Action or preceding agreements, or otherwise.
9. The
Parties to this Settlement Agreement including those listed or described in
¶6
above, agree to refrain from making any disparaging, denigrating, negative
or
uncomplimentary statements, whether public or private, regarding any of the
other Parties to this Settlement Agreement or their family, directors, officers,
employees, legal counsel, and/or any related companies, individuals or entities.
| 4 | PSPP | UCHUB | ||
| PIEDMONT | ESAFE | |||
| XXXXXXX | WFP | |||
| XXXX | XXXXXX | |||
| CHERISH |
10. PSPP
and
UCHUB on their own behalf, hereby agree to create individual press releases
concerning the subject matter hereof, and such press releases shall each be
approved by the other Party and each simultaneously released by the writing
Party at their own expense, on or after the Effective Date of this Settlement
Agreement. As part of the press release created by PSPP, it agrees to, in
specificity, formally apologize for any and all disparaging remarks, errors,
misstatements, and the like, made against any person, entity or otherwise.
Furthermore, PSPP hereby agrees to retract any and all previous press releases
issued between August 16, 2007 and the Effective Date hereof.
11. The
Parties to this Settlement Agreement hereto warrant that no other person or
entity has claimed or now claims any interest in the subject of this Settlement
Agreement, and that they have the sole right and exclusive authority to execute
this Settlement Agreement and to exchange the aforesaid consideration, and
that
they have not sold, assigned or otherwise set over to any other person or entity
any claim, lien, demand, cause of action, obligations, damage or liability
covered hereby. In the event of a breach of this Settlement Agreement, the
prevailing Party shall be entitled to an award of attorney's fees as an
additional item of damages, in addition to their other damages and injunctive
relief.
12. This
Settlement Agreement is intended to be mutual and reciprocal and not merely
unilateral and extends in favor of both Parties with respect to a release of
claims stated or which could have been stated in The Action or relating to
the
same general facts and circumstances thereof.
13. PSPP
hereby agrees that upon execution of this Settlement Agreement it shall have
its
then new board of directors ratify this Settlement Agreement, signed by each
member of the board. Thereafter, said duly authorized resolution shall be
annexed hereto and made part of this Settlement Agreement. The Parties
specifically understand that PSPP’s duty to provide this ratification is a
condition precedent that shall survive the execution of this Settlement
Agreement and that failure of PSPP to provide such ratification within 24 hours
of the Effective Date of this Settlement Agreement shall cause this Settlement
Agreement to be null and void.
14. The
Parties to this Settlement Agreement understand and agree that they have not
executed this Settlement Agreement without first having considered fully its
implications, and that they did not execute this Settlement Agreement without
first being advised in writing to consult with an attorney.
15. Each
Party hereto acknowledges that the promises made herein in consideration of
the
claims referred to herein do not constitute an admission or concession of
liability by any Party on account of any said claims or matters, liability
for
which is expressly denied. The settlement consideration
set forth herein is paid in consideration of the release of all claims raised
in
The Action, and the dismissal of The Action, and should not in any way be
construed as an admission by any Party of any obligations as may have been
alleged in The Action.
| 5 | PSPP | UCHUB | ||
| PIEDMONT | ESAFE | |||
| XXXXXXX | WFP | |||
| XXXX | XXXXXX | |||
| CHERISH |
16. This
Settlement Agreement shall be binding upon and for the benefit of the Parties
hereto and their respective general and limited partners, corporate parents,
subsidiaries, affiliates, officers and directors, attorneys, agents,
representatives, predecessors in interest, shareholders, successors and assigns.
17. Each
Party hereto warrants that no promise, inducement or agreement not expressed
herein has been made to it in connection with this Settlement Agreement, and
that this Settlement Agreement constitutes the entire agreement between the
Parties herein named. It is expressly understood and agreed that this Settlement
Agreement may not be altered, amended, modified or otherwise changed in any
respect whatsoever except by a writing duly executed by authorized
representatives of all of the Parties to this Settlement Agreement. Each Party
hereto hereby agrees and acknowledges that it will make no claim at any time
or
place that this Settlement Agreement has been orally altered or modified or
otherwise changed by oral communication of any kind or character.
18. Should
any provision of this Settlement Agreement be held invalid or illegal, such
illegality shall not invalidate the whole of this Settlement Agreement, but,
rather, the Settlement Agreement shall be construed as if it did not contain
the
illegal part, and the rights and obligations of the Parties shall be construed
and enforced accordingly.
19. This
Settlement Agreement, its contents, and any dispute arising therefrom, shall
be
construed in accordance with the laws of the State of California as applied
to
transactions taking place wholly in California between California residents.
The
Parties each agree that Los Angeles County, California, is the only proper
venue
for any judicial, administrative or arbitration proceedings arising out of
or in
connection with this Settlement Agreement, and each Party irrevocably submits
to
the jurisdiction of the state and federal courts of Los Angeles County,
California.
20. Should
any Party to this Settlement Agreement resort to legal proceedings to enforce
this Settlement Agreement, the prevailing Party in such legal proceeding shall
be awarded, in addition to such other relief as may be granted, attorneys'
fees
and costs incurred in connection with such proceeding.
21. This
Agreement sets forth the Parties' mutual rights and obligations with respect
to
this Settlement Agreement. It is intended to be the final, complete, and
exclusive statement of the
terms
of the Parties' agreement regarding these subjects. This Settlement Agreement
supersedes all other prior and contemporaneous agreements and statements on
these subjects, and it may not be contradicted by evidence of any prior or
contemporaneous statements or agreements.
| 6 | PSPP | UCHUB | ||
| PIEDMONT | ESAFE | |||
| XXXXXXX | WFP | |||
| XXXX | XXXXXX | |||
| CHERISH |
22. Whenever
from the context it appears appropriate, each term stated in either the singular
or the plural shall include the singular and the plural, and pronouns stated
in
the masculine, the feminine or the neuter gender shall include the masculine,
feminine and neuter.
23. The
rights and remedies provided by this Settlement Agreement are cumulative, and
the exercise of any right or remedy by a Party hereto, whether pursuant hereto,
to any other agreement, or to law, shall not preclude or waive that Party's
right to exercise any or all other rights and remedies. This Settlement
Agreement will inure to the benefit of the Parties and their successors and
assigns.
24. The
failure of any Party, whether purposeful or otherwise, to exercise in any
instance any right, power or privilege under this Settlement Agreement or under
law shall not constitute a waiver of any other right, power or privilege, nor
of
the same right, power or privilege in any other instance.
25. This
Settlement Agreement may be executed simultaneously in two or more counterparts
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument and may be delivered in original or
by
facsimile or similar instantaneous electronic transmission device pursuant
to
which the signature of or on behalf of such part can be seen, and in such case
the facsimile execution and delivery shall be considered valid, binding and
effective for all purposes. At the request of any Party hereto, all Parties
agree to deliver an original of this Settlement Agreement as well as any
facsimile, telecopy or other reproduction hereof subsequent to the Effective
Date.
26. Any
notice, request, consent or approval required or permitted to be given under
this Settlement Agreement or pursuant to law shall be sufficient if it is in
writing, and if and when it is hand delivered or sent by certified mail, with
postage prepaid, to the other Party.
27. The
Parties hereto represent and warrant that they have not heretofore assigned
or
transferred, or purported to assign or transfer, to any person, partnership,
firm or corporation whatsoever any claims, debt, liability, demand, obligation,
cost, expense, action or causes of action covered by this Settlement Agreement,
and each Party acknowledges and agrees that this warranty and representation
is
an essential and material term of this Settlement Agreement without which none
of the consideration received in connection herewith would have been made
or
delivered. The foregoing warranty and representation shall survive the delivery
of this Settlement Agreement, and each of the Parties hereto shall indemnify
and
hold the others harmless from any claims, demands or actions which have been
assigned or transferred, or purported to have been assigned or transferred,
in
violation of the foregoing representation and warranty.
| 7 | PSPP | UCHUB | ||
| PIEDMONT | ESAFE | |||
| XXXXXXX | WFP | |||
| XXXX | XXXXXX | |||
| CHERISH |
28. Each
individual signing this Settlement Agreement on behalf of any corporation,
limited liability or entity represents and warrants that he has the right,
power, legal capacity and authority to enter into and perform each of the
obligations specified under this Settlement Agreement, and that no further
approval or consent of any person, board of directors, shareholders or entities
is necessary for them to enter into and perform each of the obligations under
this Settlement Agreement.
29. The
Parties hereto affirmatively represent the fact that they have been represented
herein and throughout by legal counsel of their own choosing. The Parties
further represent that they have read this Settlement Agreement, understand
the
terms used herein, and the consequences hereof.
30. All
of
the Parties hereto shall fully and timely do all acts and execute, return and
furnish all documents necessary or convenient to effectuate the terms and
provisions of this Settlement Agreement.
THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK
| 8 | PSPP | UCHUB | ||
| PIEDMONT | ESAFE | |||
| XXXXXXX | WFP | |||
| XXXX | XXXXXX | |||
| CHERISH |
THIS
IS A RELEASE
READ
CAREFULLY BEFORE SIGNING
IN
WITNESS WHEREOF the undersigned have executed this Settlement Agreement to
be
effective as of the date set forth above.
|
PSPP Holdings, Inc
By:
_____________________
Name:
Xxxx Xxxxxxxx
Title:
Authorized Agent
|
UC HUB Group, Inc
By:
_____________________
Name:
Xxxxx Xxxxxx
Title:
Authorized Agent
eSafe, inc.
|
|
Piedmont Properties, Inc.
By:
_____________________
Name:
Xxxxxxx Xxxxxxxx
Title:
Authorized Agent
|
By:
_____________________
Name:
Xxxxx Xxxxxx
Title:
Authorized Agent
Xxxxxx Family Partners, LP.
|
|
Xxxxxxx Xxxxxxxx, as an individual
By:
_____________________
Xxxxxxx
Xxxxxxxx
|
By:
_____________________
Name:
Xxxxx Xxxxxx
Title:
Authorized Agent
|
|
Xxxx Xxxxxxxx, as an individual
By:
_____________________
Xxxx
Xxxxxxxx
|
Xxxxx Xxxxxx, as an individual
By:
_____________________
Xxxxx
Xxxxxx
|
|
Xxxxxxx Xxxxx, as an individual
By:
_____________________
Xxxxxxx
Xxxxx
|
ADDITIONAL
SIGNATURES ON THE NEXT PAGE
9
IN
WITNESS WHEREOF the undersigned have joined in this Settlement Agreement to
the
extent that they release and indemnify UCHUB, ESAFE, XXXXXX and the WFP as
setforth above.
ARRAT,
LLC By: _____________________ Name: Xxxxxxx Xxxxxxxx Title: President/CEO
Dream
Apartments TV Corporation
By: _____________________
Name:
Xxxx
Xxxxxxxx
Title:
President/CEO
Tall
Tree
Cattle Company, Inc.
By:
_____________________
Xxxxxxx
Xxxxxxxx
Title:
President/CEO
Top
Flight Consulting, LLC
By: _____________________
Xxxx
Xxxxxxxx
Title:
President/CEO
10
