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EXHIBIT 10.1
SETTLEMENT AND RELEASE AGREEMENT
This Settlement and Release Agreement ("Agreement") is entered into
effective the 15th day of October, 1999 by and between MSI Holdings, Inc., a
Utah corporation ("Company") as the first party and MMH Investments, Inc., a
North Carolina corporation and Xx. Xxxxxxxx Xxxxx ("Consultant") as the second
party (Company and Consultant collectively referred to herein as "Parties").
WHEREAS, the Consultant believes that the Parties entered into a Consulting
Agreement effective the first day of March, 1999 by which the Consultant was to
provide various services to the Company ("Consulting Agreement") and the Company
disputes that the Consulting Agreement was properly executed by its prior
management; and
WHEREAS, the Parties hereto desire to terminate the Consulting Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other valuable consideration of which the Parties
acknowledge receipt, the Parties agree as follows:
1. Effective upon the signing of this Agreement, the Consulting Agreement
is terminated in all respects.
2. As partial consideration for the termination of the Consulting
Agreement, and upon the execution of this Agreement, the Company will issue to
the Consultant, and the Consultant acknowledges receipt of a stock certificate
representing 150,000 shares of the Company's common stock ("Consultant Shares"),
which such shares are restricted pursuant to Rule 144 of the Securities and
Exchange Commission, which such shares are non-qualified, but
SETTLEMENT RELEASE AGREEMENT - PAGE 1
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which such shares will be immediately registered by the Company as a part of its
current S-3 filing with the Securities and Exchange Commission. Consultant
agrees to execute a Lock-up Agreement for the Consultant Shares in the form
attached hereto as Exhibit "___".
3. For the value consideration exchanged between the Parties, except to the
performance of the terms and conditions of this Agreement (including the
surviving paragraphs of the Consulting Agreement) the Parties, each to the other
including the released party's predecessors, successors, assigns, agents,
employees, representatives, officers, directors, attorneys and affiliates hereby
release any and all claims, demands, losses, liabilities and causes of action
existing, arising or accruing on or before the date of execution of this
Agreement by the Parties whether known or unknown.
4. Representation and Warranties of the Company. In order to induce
Consultant to enter into this Agreement, the Company hereby makes the following
representation and warranties to Consultant:
1. The Company is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its formation and has all requisite
corporate power of authority to conduct business which it conducts and proposes
to conduct.
2. All corporate action on the Part of the Company necessary for the
authorization, execution, delivery and performance of this Agreement and the
issuance of the Shares, and the consummation of the transactions contemplated
hereby, has been properly taken and obtained in compliance with the terms of the
Company's Articles of Incorporation and By-Laws and applicable law, and this
Agreement constitutes a valid and legally binding obligation of the Company,
enforceable in accordance with its terms.
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3. No consent, approval, order, authorization, registration,
qualification, license, permit, designation or declaration of, or other filing
with or notification to any governmental body, authority or agency or other
third party is required in connection with the authorization, execution,
delivery and performance of this Agreement, or the Consummation of the
transactions contemplated hereby.
4. The authority, execution, delivery and performance of this Agreement
will not violate or be in conflict with any agreement, instrument, judicial or
other order, Judgment or decree to which the Company is a party not will it
violate or contravene a provision of the Company's Certificate of Incorporation
or By-Laws.
5. The Consultant Shares, when, issued, shall be duly authorized,
validly issued, fully paid, and non-assessable and shall be issued and delivered
to Consultant free and clear of all liens, claims and encumbrances whatsoever
except to the extent otherwise provided herein.
5. Representation and Warranties of the Consultant. In order to induce the
Company to enter into this Agreement, the Consultant hereby makes the following
representation and warranties to the Company:
1. The Consultant is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its information and has all
requisite corporate power of authority to conduct business which it conducts and
proposes to conduct.
2. All corporation action on the part of the Consultant necessary for
the authorization, execution, delivery mid performance of this Agreement and the
Issuance of the Shares, and the consummation of the transaction contemplated
hereby, has been properly taken
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and obtained in compliance with the terms of the Consultant's Certificate of
Incorporation and By-Laws and applicable law, and this Agreement constitutes a
valid and legally binding obligation of the consultant, enforceable in
accordance with its terms.
3. No consent, approval, order, authorization, registration,
qualification, license, permit designation or declaration of, or other filing
with or notification to any government body, authority or agency or other third
party is required in connection with the authorization, execution, delivery and
performance of this Agreement, or the Consummation of the transactions
contemplated hereby.
4. The Consultant's Shares are being purchased for Consultant's (or its
designees) own account and Consultant will not sell or otherwise transfer such
securities unless they are registered under the Securities Act of 1933, as
amended, unless an exemption from such registration is available and any such
sale or transfer shall be subject to the Lockup Agreement referenced above in
paragraph 2.
5. The Consultant has previously been provided with a copy of the
Company's registration on Form SB-2 as declared effective by the Securities
Exchange Commission ("SEC") on January 13, 1999, and that Consultant has
reviewed such registration statement.
6. This Agreement constitutes the sole and entire Agreement between the
parties hereto with respect to the subject matter hereof and supersedes all
prior agreements, representations, warranties, statements, promises,
information, arrangements and understandings, whether oral or written, express
or implied, between the parties hereto with respect to the subject matter hereof
and may not be changed or modified except by an instrument in writing signed by
the party to be bound thereby.
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7. This Agreement has been subject to the mutual consultation, negotiation
and agreement of the parties hereto and shall not be construed for or against
any party hereto on the basis of such party having drafted this Agreement.
8. All notices, consents, requests, demands and other communications
required or permitted to be given under this Agreement shall be in writing and
delivered personally, receipt acknowledged, or mailed by registered or certified
mail, postage prepaid, return receipt requested, addressed to the parties hereto
as follows (or to such other addresses as either of the parties hereto shall
specify by notice given in accordance with this provision):
If to Consultant:
MMH Investments, Inc.
0000 Xxxxxx Xxxxx Xxxx
Xxxxxxxx X
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
and
Xxxxxx Xxxxxx
c/o MSI Holdings, Inc.
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Company:
MSI Holdings, Inc.
501 Waller
Xxxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxxx, CEO
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
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with a copy (which shall, not constitute notice) to:
Kane, Russell, Xxxxxxx & Xxxxx, P.C.
3700 Thanksgiving Tower
0000 Xxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
9. All such notices, consents, requests demands and other communications
shall be deemed given when personally delivered as aforesaid or, if mailed as
aforesaid, on the third business day after the mailing thereof or on the day
actually receive, if earlier, except for a notice of a change of address which
shall be effective only upon receipt.
10. No party hereto may assign this Agreement or its or their respective
rights, benefits or obligations hereunder without the written consent of the
other party hereto.
11. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their successors, and permitted assigns. Nothing contained in
the Agreement is intended to confer upon any person or entity, other than the
parties hereto, or their respective successors or permitted assigns, any rights,
benefits, obligations, remedies, or liabilities under or by reason of the
Agreement.
12. No waiver of any provision of this Agreement or of any breach thereof
shall be effective unless in writing and signed by the party to be bound
thereby. The waiver by either party hereto of a breach of any provision of this
Agreement, or any representation, warranty, obligation or covenant in this
Agreement by the other party harm, shall not be construed as a waiver of any
subsequent breach or of any other provision, representation, warrant, obligation
or covenant of such other party, unless the instrument of waiver expressly so
provides.
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13. This Agreement shall be governed by and construed in accordance with
the laws of the State of Texas with respect to contracts made and to be fully
performed therein, without regard to the conflicts of laws principles thereof.
14. Each party hereto represents and warrants the other that it has been
represented by counsel in connection on with the negotiation, preparation, and
consummation of this Agreement, of has had an opportunity to do so. Each of the
parties hereto shall bear all of its respective costs and expenses incurred in
connection with the negotiation, preparation, execution, consummation,
performance and/or enforcement of this Agreement including, without limitation,
the fees and disbursements of their respective counsel. Notwithstanding the
foregoing, in the event any action or proceeding instituted by either party to
enforce the provisions of this Agreement, the prevailing party shall be entitled
to reimbursement of the legal costs and expenses incurred by such party in
connection therewith.
15. This Agreement may be executed in one or more counterparts, each of
which when executed and delivered, shall be deemed an original, but all of which
when taken together, shall constitute on and the same instrument.
16. The Section headings used in this Agreement have been used for
convenience of reference only and am not to be considered in construing or
interpreting this Agreement.
17. If one or more provisions of this Agreement are held to be
unenforceable under applicable law, such provision(s) shall be excluded from
this Agreement and the balance of this Agreement shall remain in full force and
effect.
18. Unless the context of this Agreement clearly requires otherwise, the
plural includes the singular, the singular includes the whole, "including" in
not limiting, and "or" has the inclusive
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meaning of the phrase "and/or". The words "hereof", "herein", "hereby",
"hereunder" and other similar terms in this Agreement refer to this Agreement as
a whole and not exclusively to any particular provision of this Agreement.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be entered
into and signed as of the date herein above first set forth.
MSI HOLDINGS, INC.
By:
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Xxxxxx X. Xxxxx
President and CEO
MMH INVESTMENTS, INC.
By:
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Xxxxxx Xxxxxx
President
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XX. XXXXXXXX XXXXX
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