CONFIDENTIAL SETTLEMENT AND GENERAL RELEASE AGREEMENT
CONFIDENTIAL
This
Settlement and General Release Agreement ("AGREEMENT") is entered into by and
between XXXXXXX X. XXXXXX (“XXXXXX”), XXXXXX XXXXX (“TROLF”); NATIONWIDE
COMMERCIAL BROKERS, INC. (“NATIONWIDE”), XXXXXX XXXXXXX (“XXXXXXX”) AND SECURED
DIVERSIFIED INVESTMENT, LTD. (“SDI”) referred to jointly as the "PARTIES" as of
the date this AGREEMENT is signed, on the following terms:
RECITALS
A.
On or
about January 13, 2006 Alliance Title Company filed an Interpleader lawsuit
Case
Number 00XX00000 in the Orange County Superior Court, Department C11 against
BIDDLE, TROLF, NATIONWIDE, and SDI along with others and as result deposited
with the court funds in the amount of $267,000.00
B.
On or
about January 20, 2006, XXXXXX, TROLF and NATIONWIDE along with one other
plaintiff filed a separate lawsuit Case Number 00XX00000 in the Orange County
Superior Court, Department C11 against SDI and one of its officers Xxx Xxxxxxx
along with others for Fraud and Misrepresentation, Negligent Misrepresentation,
Breach of Contract, Breach of the Covenant of Good Faith and Fair Dealing,
Conversion, Commons Counts, Money had and received and Declaratory Relief.
On or
about March 15, 2006 SDI filed a cross-complaint against the Plaintiffs along
with others for Breach of Contract, Breach of Fiduciary Duty, Negligent
Supervision, Civil Conspiracy, Intentional Interference with Economic Relations;
Negligent Interference with Economic Relations; Breach of Oral Agreement, Breach
of Employment Contract; Breach of Directors/Officers’ Fiduciary Duty; Fraud and
Intentional Misrepresentation and Declaratory Relief. The complaint and
cross-complaint shall be referred to as the “ACTION”.
C.
On or
about March 10, 2006, XXXXXXX X. XXXXXX, XXXXXX XXXXX AND XXXXXX XXXXXXX along
with others, filed a lawsuit against SDI for declaratory relief
under
Corporation
Code Section 2115, Case Number 06CC03959, filed in the Orange County Superior
Court, Department C11.
D. SDI
and
Xxx Xxxxxxx expressly deny any liability and fraud with respect to any claims
in
the ACTION, or with respect to any other matters relating to it. However, in
order to fully and forever resolve these matters, and with the understanding
that this AGREEMENT does not constitute an admission by any party of any
wrongdoing or of any lack of merit relating to any claims referred to herein,
BIDDLE, TROLF, NATIONWIDE AND SDI enter into this AGREEMENT.
A
G R E E M E N T
1. In
consideration for the promises set forth herein, the parties agree as
follows:
a. The
parties agree that upon execution by XXXXXX, TROLF and NATIONWIDE and their
attorney of this AGREEMENT and upon execution of a request for
dismissal
in the above mentioned lawsuits, the PARTIES shall filed with the Orange County
Superior Court an order of disbursement as follows: $45,000 to XXXXXX X. XXXXXX,
$42,000 to XXXXXX XXXXX, $45,000 to NATIONWIDE and $45,000 to SDI. The payments
shall be in one lump sum with no payroll or other taxes deducted and all such
payments shall be reported on a form 1099.
b.
In
further consideration of this AGREEMENT, XXXXXX XXXXXXX the majority owner
of
NATIONWIDE will also file a request for dismissal in Case Number 06CC03959,
currently pending in the Orange County Xxxxxxxx Xxxxx, Xxxxxxxxxx
X00.
c. SDI
makes
no representations or warranties regarding the tax effect of the settlement
proceeds as directed by this AGREEMENT. Further, XXXXXX, TROLF and NATIONWIDE
agrees to defend and/or indemnify SDI with respect to any liability created
by
XXXXXX, TROLF and NATIONWIDE’S payment or non-payment of taxes with respect to
the settlement sum.
2. BIDDLE,
TROLF, NATIONWIDE, as the first party, and SDI as a second party, on their
own
behalf and on behalf of their respective dependents, successors, heirs,
executors, administrators and assigns, and each of them, hereby fully and
forever releases and discharges each other, as well as NATIOWIDE AND SDI’s
parent, subsidiary or affiliated companies or organizations, any as well as
their agents, officers, directors, stockholders, employees, successors, assigns,
insurers and attorneys, and each of them, of and from any and all claims,
rights, actions, causes of action, obligations, debts, interest, damages,
charges, losses, debts, penalties, forfeitures, liabilities, costs, attorneys'
fees, and demands of any nature, whether arising in law or in equity, arising
out of or relating to any acts or omissions that took place prior to the date
of
this AGREEMENT, including without limitation, any matters relating in any way
to
the ACTION and/or any matters relating to or contained in or which could have
been contained in the ACTION and/or any claims under other Federal or State
statute, law or regulation.
3. It
is the
intention of the parties hereto that this AGREEMENT shall be effective as a
full
and final accord and satisfaction and release of each and every released matter,
including all unknown and/or unsuspected claims. Accordingly, the parties hereby
waive and relinquish any and all rights or benefits that any party may have
under the provisions of Section 1542 of the California Civil Code, which reads
as follows:
"A
general release does not extend to claims which the creditor does not know
or
suspect to exist in its favor at the time of executing the release, which if
known by him must have materially affected his settlement with the
debtor."
In
connection with this waiver, each party hereto acknowledges that facts in
addition to or different from those presently known may later be discovered
which relate to the subject matter of this AGREEMENT. The parties also recognize
the possibility that, in the future, damages that are not currently known may
be
suffered in relation to matters released in this AGREEMENT. Notwithstanding
these possibilities, it is each party's intention to fully, finally and forever
settle and release all released matters, disputes and differences, whether
known
or unknown, suspected or unsuspected, that have existed; now exist, or may
exist. It is the intention of the parties hereto that this AGREEMENT shall
be
effective as a full and final accord and satisfaction and release of each
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and
every
released matter, including all unknown and/or unsuspected claims. In connection
with this waiver, each party hereto acknowledges that facts in addition to
or
different from those presently known may later be discovered which relate to
the
subject matter of this AGREEMENT. The parties also recognize the possibility
that, in the future, damages that are not currently known may be suffered in
relation to matters released in this AGREEMENT. Notwithstanding these
possibilities, it is each party's intention to fully, finally and forever settle
and release all released matters, disputes and differences, whether known or
unknown, suspected or unsuspected, that have existed; now exist, or may exist.
Nothing in this AGREEMENT constitutes, or should or shall be deemed to
constitute, any admission of any act, fact or liability, with respect to any
matters released herein.
4. XXXXXX
and TROLF represents that they does not desire reemployment by SDI and hereby
expressly waives any and all rights which they may have had to such reemployment
or to reinstatement with SDI. Further, XXXXXX and TROLF agrees and promises
that
they will not at any time seek employment or reemployment with SDI and/or any
other party or entity released herein.
5. The
contents and the existence of this AGREEMENT, and the parties' discussions
pertaining to it, are and shall remain confidential, and neither party will
communicate or allow communication in any manner (written or oral) to anyone
with respect thereto, except that this AGREEMENT may be disclosed as required
to
the parties' attorneys, insurers, accountants and/or governmental taxing
authorities, or otherwise may be disclosed as compelled by law. If any party
beach is clause of the AGREEMENT other party may seek all rights and remedies
under the law including but not limited to attorney’s fees and
costs.
6. The
parties hereto, and each of them, shall forever refrain and forbear from
commencing, instituting, or prosecuting any lawsuit, action or other proceedings
against any of the other parties hereto. Such forbearance from commencing,
instituting or prosecuting any lawsuit, action or other proceeding by one such
party against the other shall include not only such other parties, but their
officers, directors, representatives, assigns, agents, attorneys, heirs,
employees, partners and personal representatives as well, and such forbearance
shall apply to any cause relating to, based upon or arising out of any and
all
claims, debts, liabilities, demands, obligations, costs, expenses, actions
or
causes of action, released and discharged hereunder, except those necessary
to
enforce the terms of this agreement.
7. Each
party agrees to bear its/her own costs, expenses and attorneys' fees incurred
in
connection with the ACTION and this AGREEMENT.
8. Each
party hereto expressly warrants and represents that it/she is fully authorized
to enter into this AGREEMENT and each of its terms, and that it/she has not
assigned to any other party or person any claims released herein.
9. XXXXXX,
TROLF AND NATIONWIDE warrants that they has not filed any other lawsuits,
charges, complaints, petitions, or other accusatory pleading against SDI with
any governmental agency or in any court, on behalf of themselves or any other
entity they represent, based upon, arising out of or related in any way to
any
events occurring prior to the execution of this
3
Agreement,
including, without limiting the generality of the foregoing ACTION. XXXXXX,
TROLF AND NATIONWIDE further agrees that they will not hereafter file, cause
to
be filed, or otherwise voluntarily participate in the filing, investigation,
and/or prosecution of any other such charges, complaints, petitions or
accusatory pleading brought by any other party in any court currently pending
or
not or with any governmental agency in which SDI, its officers, directors,
shareholder or any affiliated company is named as a party.
10. This
AGREEMENT contains the entire agreement between the parties hereto with respect
to all matters addressed herein, and fully supersedes any and all prior or
contemporaneous agreements, understandings or representations, oral or written,
implied or express, pertaining to the subject matter hereof. This AGREEMENT
may
only be subsequently modified by a writing signed by all parties
hereto.
11. Each
party agrees to do all things necessary to carry out and effectuate the terms
of
this AGREEMENT, and expressly promises not to do or fail to do anything,
directly or indirectly, which will interfere with any other party's realization
of the benefits hereof.
12. This
AGREEMENT, including the releases herein, shall be binding upon and inure to
the
benefit of each of the parties to this AGREEMENT and to each of their successors
in interest, including heirs and assigns.
13. Each
of
the parties hereto has been represented by counsel in the negotiating and
drafting of this AGREEMENT. Accordingly, the rules of construction of contracts
relating to resolution of ambiguities against the drafting parties shall be
inapplicable to this AGREEMENT.
14. Any
construction, interpretation and performance of this AGREEMENT shall be governed
by the laws of the State of California, both substantive and procedural. Both
parties accede to the jurisdiction of the Los Angeles County Superior Court
for
any actions to enforce, or for breach of, any term of this
AGREEMENT.
15. If
for
any reason any provision contained in this AGREEMENT is later deemed
unenforceable, the remainder of this AGREEMENT shall nonetheless remain binding
and enforceable on all parties hereto.
16. In
the
event of any action brought to enforce any provision of this AGREEMENT, or
for
breach of any provision of this AGREEMENT, the prevailing party therein shall
be
entitled to an award of its/her costs and reasonable attorneys' fees incurred
therein, in
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addition
to any other relief.
17. This
AGREEMENT may be executed in multiple originals or counterparts, each of which
shall be deemed an original or the equivalent thereof.
WHEREFORE,
each party hereto, by the signatures below, certifies that this AGREEMENT has
been read in its entirety, that any questions regarding the meaning or effect
of
any terms have been answered to their satisfaction, that each party enters
into
this AGREEMENT with the intent to be fully and forever bound by all of its
terms, as of the date set forth opposite their signature below.
Dated:
_________________ ___________________________________
XXXXXXX
X. XXXXXX
Dated:
_________________ ___________________________________
XXXXXX
XXXXX
Dated:
_________________ ___________________________________
XXXXXX
XXXXXXX
DIRECTOR
NATIONWIDE
COMMERCIAL
BROKERS,
INC.
Dated:
_________________ ___________________________________
XXXXXX
XXXXXXX
APPROVED
AS TO FORM AND CONTENT:
LAW
OFFICES OF XXXXXX XXXXXXXX
_______________________________________
XXXXXX
XXXXXXXX
ATTORNEY
FOR XXXXXXX X. XXXXXX, XXXXXX XXXXX
NATIONWIDE
COMMERICAL BROKERS, INC. and
XXXXXX
XXXXXXX
Dated:
__________________
By:_____________________________________
XXX
XXXXXXX
CEO
SECURED
DIVERSIFIED INVESTMENT, LTD.
APPROVED
AS TO FORM AND CONTENT:
By:____________________________
XXXXXX
X.
XXXXXXXX
ATTORNEY
FOR SECURED
DIVERIFIED
INVESTMENT,LTD.
