SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release (hereinafter "Agreement") is
entered into as of the 31 day of May, 2000, by and between plaintiff Xxxx X.
Xxxxxxx, as Trustee of the Xxxxxxx Family Trust UDT 10/31/89 (hereinafter
"Xxxxxxx"), defendant Xxxxxxx X. Xxxxxx, Xx. (hereinafter "Xxxxxx"), and
third-party Colmena Corporation (hereinafter "Colmena") according to the
following terms and conditions:
I
RECITALS
1.1 As used herein, "Xxxxxxx" means Xxxx X. Xxxxxxx, as Trustee of the
Xxxxxxx Family Trust UDT 10/31/89, business address of InvestLink, 0000 X.
Xxxxxxx Xxxx, Xxxxx 0000, Xxxxxxxxxx, Xxxxxxxx 00000, its successors and
assigns.
1.2 As used herein, "Xxxxxx" means Xxxxxxx X. Xxxxxx, Xx., residing at
00000 Xxxx Xxxx, Xxx Xxxxxxx, Xxxx 00000, his successors and assigns. 1.3 As
used herein, "Colmena" means the Colmena Corporation, a Delaware corporation
with its principal place of business at 0000 Xxxxxxxxx 00xx Xxxxxxx, Xxxxx,
Xxxxxxx 00000, including all of its predecessors and successors in interest,
parent and subsidiary corporations, divisions, affiliates, and related entities,
as well as their officers, directors, stockholders, employees, agents,
representatives, attorneys, and insurers.
1.4 As used herein the "the Parties" refer collectively to Wiseman, Peplin,
and Colmena, as they are described in Recitals 1.1, 1.2 and 1.3, respectively.
1.5 Xxxxxxx alleges that Xxxxxx failed to return sums and interest due to
Xxxxxxx under a written Guaranty dated October 13, 1997 (the "Guaranty").
1.6 Xxxxxxx has asserted claims against Xxxxxx for damages allegedly
arising from the breach of the Guaranty, as more particularly described in the
complaint filed in the Circuit Court of Xxxx County, Illinois in Xxxx X. Xxxxxxx
v. Xxxxxxx X. Xxxxxx, Xx., Case No. 00 L 2462 (hereinafter referred to as the
"Lawsuit").
1.7 The undersigned parties desire to enter into this Agreement in order to
provide for certain payments in full and complete release, discharge and
settlement of the claims against Xxxxxx set forth in this Lawsuit upon the terms
and conditions set further herein without the necessity of proceeding to trial
on the merits with all of the attendant expense.
II
PAYMENT
2.1 In consideration of the dismissal with prejudice of this Lawsuit and
the release and remaining promises set forth in this Agreement, Xxxxxx agrees to
make a sum payment in the amount of Eleven Thousand and no/100 Dollars
($11,000.00), payable in eleven equal monthly installments of One Thousand and
no/100 Dollars ($1,000.00).
2.2 The first such installment of said payment shall be made
contemporaneously with the signing of this Agreement. The first installment
shall be made in the form of a certified cashiers check, payable to Xxxx X.
Xxxxxxx, in the amount of One Thousand and no/100 Dollars ($1,000.00).
2.3 Each of the ten (10) remaining payments of One Thousand and no/100
Dollars ($1,000.00) shall also be made in the form of a certified cashiers check
payable to Xxxx X. Xxxxxxx, to be received by Xxxxxxx at the business address
indicated in Recital 1.1, no later than the fifth (5th) day of each successive
month following the execution of this Agreement, beginning with July 2000. As
such, the second installment of One Thousand and no/100 Dollars ($1,000.00)
shall become due on July 5, 2000.
2.4 The failure to timely remit any of the eleven installments due under
this Agreement shall constitute a material breach of the Agreement, and any and
all consideration, concessions, or furtherances advanced by Xxxxxxx including,
but not limited to the re-filing of the claims advanced in this Lawsuit, shall
be withdrawn.
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2.5 As additional consideration for the dismissal with prejudice of this
Lawsuit and the release and remaining promises set forth in this Agreement, the
Colmena Corporation shall transfer to Xxxxxxx five hundred thirty-three thousand
three hundred and thirty-three (533,333) shares of Colmena Corporation stock,
currently valued at 7.5 cents per share.
2.6 Colmena in no way undertakes Xxxxxx'x liability for his obligations of
Eleven Thousand Dollars and no/100 in cash. Xxxxxx'x obligations are independent
of Colmena's under this Agreement.
2.7 Said dismissal order shall be without prejudice until such time as the
entire Eleven Thousand Dollars and no/100 is paid in full to Xxxxxxx. At such
time, the dismissal shall mature into a dismissal with prejudice, and any and
all claims giving rise to this Lawsuit shall become extinguished.
III
MUTUAL RELEASE AND AGREEMENT RESPECTING
PRESENT AND FUTURE CLAIMS AND CAUSES OF ACTION
In consideration of the above payments, the Parties agree to the following:
3.1 Xxxxxxx and his attorneys shall file, or cooperate in filing, and take all
further steps that may be necessary to secure the Court's entry of an
appropriate Order dismissing this Lawsuit. Said dismissal shall mature into a
dismissal with prejudice upon the final payment due under this Agreement.
3.2 Xxxxxxx releases and forever discharges Xxxxxx , and all of his
predecessors and successors in interest, assignees, nominees, past, present and
future subsidiaries, affiliates, divisions, officers, directors, employees,
stockholders, attorneys, representatives, partners and agents, as well as all of
the subsidiaries, divisions, affiliates, directors, officers, agents, employees,
insurers, attorneys, heirs, executors, administrators, and assignees of all
those persons and entities (hereinafter all collectively referred to as the
"Released Defendants"), of and from all claims, demands, obligations, actions,
or causes of action, however denominated, for any injury or damage, related to
this Lawsuit.
3.3 Xxxxxx releases and forever discharges Xxxxxxx, and all of his
predecessors and successors in interest, assignees, nominees, past, present and
future subsidiaries, affiliates, divisions, officers, directors, employees,
stockholders, attorneys, representatives, partners and agents, as well as all of
the subsidiaries, divisions, affiliates, directors, officers, agents, employees,
insurers, attorneys, heirs, executors, administrators, and assignees of all
those persons and entities (hereinafter all collectively referred to as the
"Released Plaintiffs"), of and from all claims, demands, obligations, actions,
or causes of action, however denominated, for any injury or damage, related to
this Lawsuit.
3.4 Xxxxxxx releases and forever discharges Colmena, and all of its
predecessors and successors in interest, assignees, nominees, past, present and
future subsidiaries, affiliates, divisions, officers, directors, employees,
stockholders, attorneys, representatives, partners and agents, as well as all of
the subsidiaries, divisions, affiliates, directors, officers, agents, employees,
insurers, attorneys, heirs, executors, administrators, and assignees of all
those persons and entities (hereinafter all collectively referred to as the
"Released Third-Parties"), of and from all claims, demands, obligations,
actions, or causes of action, however denominated, for any injury or damage,
related to this Lawsuit.
3.5 Colmena releases and forever discharges Xxxxxxx, and all of his
predecessors and successors in interest, assignees, nominees, past, present and
future subsidiaries, affiliates, divisions, officers, directors, employees,
stockholders, attorneys, representatives, partners and agents, as well as all of
the subsidiaries, divisions, affiliates, directors, officers, agents,
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employees, insurers, attorneys, heirs, executors, administrators, and assignees
of all those persons and entities (hereinafter all collectively referred to as
the "Released Plaintiffs"), of and from all claims, demands, obligations,
actions, or causes of action, however denominated, for any injury or damage,
related to this Lawsuit.
3.6 It is understood that the interest of this Agreement is that Plaintiff,
Defendant, and Third Party will protect and hold each other harmless from any
future or further payments or exposure with regard to the matters addressed in
this Agreement.
3.7 The Parties acknowledge that the payment reflected in this Agreement is
full and fair compensation, is made to compromise and settle claims disputed as
to both liability and amount, and is made to Xxxxxxx in settlement and release
of all claims against any of the Released Defendants, Released Plaintiffs, or
Released Third-Parties arising out of this Lawsuit.
IV
MISCELLANEOUS PROVISIONS
4.1 The Parties agree to execute any and all supplementary documents and to
take all additional steps reasonably necessary to give full force and effect to
the basic terms and intent of this Agreement.
4.2 The Parties are fully informed of the terms, contents and conditions of
this Agreement, and warrant that no promise or representation of any kind has
been made to it by the Parties or by anyone acting on behalf of the Parties,
except as expressly stated in this instrument. In making this settlement and
signing this Agreement, the Parties represent that they have relied solely and
completely upon their own judgment and upon the advice of their attorneys, and
that they fully understand and voluntarily accept the terms of the Agreement.
4.3 This Agreement shall be binding upon and inure to the benefit of all
Parties, including all of their predecessors and successors in interest, parent
and subsidiary corporations.
4.4 All Parties represent and warrant: (a) that they are empowered to enter
into this Agreement; (b) that no person or entity other than the Parties have or
have had any interest in the claims, demands, obligations or causes of action
referred to in this Agreement; (c) that the Parties are aware of no other person
or entity who holds or intends to file a claim against either Plaintiff or
Defendant relating to this Lawsuit; and (d) that the terms and conditions of
this Settlement Agreement and Mutual Release shall be kept confidential by the
Parties.
4.5 The representations and warranties made by the Parties in this
Agreement shall be deemed material to the rights and obligations of each other
under this Agreement.
4.6 This Agreement is entered into the State of Illinois and shall be
construed and interpreted in accordance with its laws.
IN WITNESS WHEREOF, the parties hereto subscribe their names. This
Agreement may be executed in one or more counterparts, each of which will be
deemed an original once all parties have signed one of the counterparts.
XXXX X. XXXXXXX, as Trustee of the Xxxxxxx
Family Trust UDT 10/31/89
/s/XXXX X. XXXXXXX
/s/ XXXXXXX X. XXXXXX, XX.
COLEMENA CORPORATION
/s/ Xxxxxxx X. Xxxxx, President
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