SECOND AMENDED AND RESTATED
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MUTUAL SETTLEMENT AND GENERAL RELEASE AGREEMENT
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This Confidential Second Amended and Restated Settlement and General
Release Agreement (the "Agreement") is entered into this 30th day of September,
2005, by and between Urban X. Xxxxxx ("Urban Xxxxxx") and Solution Technology
International, Inc. (the "Company"). The parties hereto represent as follows:
WHEREAS, Urban Xxxxxx was an officer of the Company; and
WHEREAS, Urban Xxxxxx ceased employment with the Company July 31, 2003;
and
WHEREAS, Urban Xxxxxx was owed past due salary and bonus, by the Company;
and
WHEREAS, the parties desire to execute this Agreement and to avoid any
conflict or potential conflict arising out of the Agreement, as well as to
resolve, settle and extinguish all claims, demands, disputes, differences,
grievances, allegations, complaints, charges or rights, known and unknown,
accrued or unaccrued, that either party now has or might otherwise have against
the other, or their affiliates, subsidiaries or parent corporations, or its
officers, directors, agents, representatives, including those claims involving
the Agreement; and
WHEREAS, the parties hereto executed a Mutual Settlement and General
Release Agreement dated March 24, 2005 and an Amended and Restated Mutual
Settlement and General Release Agreement dated September 6, 2005 and hereby
desire to amend and restate the latter agreement in its entirety.
NOW, THEREFORE, in consideration of the mutual agreements and promises
contained herein, and other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereby agree as follows:
1. In consideration of (a) the payment of $166,943.20 being provided by the
Company to Urban Xxxxxx, of which $16,943.20 was paid on Xxxxx 00, 0000,
(x) each party's execution of the Agreement and a Second Amended Confessed
Judgment Promissory Note dated September 30, 2005 in the amount of
$150,000 to be paid in one lump sum, including interest at 18% per annum
from August 22, 2005, due January 31, 2006 to Urban Xxxxxx in the form
attached hereto as Exhibit 1 ("Confessed Judgment Promissory Note"), (c)
the Company agreeing to pay to Urban Xxxxxx accrued interest of $6250
through August 22, 2005 and attorney fees of Urban Xxxxxx plus a penalty
for late payment of $15,000 for a total of $21,250 by October 21, 2005,
and other undertakings provided for herein, the sufficiency of which are
hereby acknowledged, each party, on its behalf, and on behalf of its
heirs, administrators, representatives, successors, agents, assigns,
affiliates, subsidiaries, parent companies or other related companies, and
its past and present directors, officers, agents, representatives, and
employees, does hereby fully, finally and unconditionally release and
forever discharge the
other party, its heirs, administrators, representatives, successors,
agents, assigns, affiliates, subsidiaries, parent companies or other
related companies, and its past and present directors, officers, agents,
representatives, and employees, from and waive and release all actions,
causes of action, lawsuits, appeals, claims, charges, complaints, debts,
obligations, demands, rights, grievances, promises, liability, damages,
costs and/or fees whatsoever in law or equity that each party had, now
has, or may have against the other and its past and present officers,
directors, agents, representatives and employees for any cause, matter or
thing whatsoever, whether known or unknown, liquidated or unliquidated,
absolute or contingent, enforceable under any local, state or federal
statute, regulation or ordinance, or under the common law of the United
States, or of any of the states, which arose or occurred from the
beginning of time up to and including the date on which this Agreement is
fully executed. , except for any action arising from a breach of this
Agreement, the Nonstatutory Stock Option Grant awarded February 18, 2004,
and/or the Confessed Judgment Promissory Note.
2. The parties expressly state, understand and agree that the waiver and
release set forth in Paragraph 1 above is intended to be a GENERAL RELEASE
regarding the Agreement and the relationship of Urban Xxxxxx with the
Company. Each party's obligations under this Agreement are contingent upon
the other's compliance with all terms and conditions provided for herein.
3. Each party represents that it has not filed any complaint, charge or
lawsuit against the other, their affiliates, subsidiaries, parent
companies or other related companies, and its past and present directors,
officers, agents, representatives, and employees with any governmental
agency or any court or other entity whatsoever, and they further state
that they will not file any complaints, charges or lawsuits against the
other, their affiliates, subsidiaries, parent companies or other related
companies, and their past and present directors, officers, agents,
representatives, and employees at any time hereafter for any matter
covered by this Agreement, except for any action arising from a breach of
this Agreement, the Confessed Judgment Promissory Note, and/or the
Nonstatutory Stock Option Grant awarded February 18, 2004. Each party
shall reimburse the other for all legal and other reasonable and related
expenses, including reasonable attorneys' fees, it incurs in connection
with defending itself, its affiliates, subsidiaries, parent companies or
other related companies, and its past and present directors, officers,
agents, representatives, and employees against such complaints, charges or
lawsuits, except for any action arising from a breach of this Agreement,
the Nonstatutory Stock Option Grant awarded February 18, 2004,
4. Each party covenants, promises and agrees that it will not discuss with,
or otherwise disclose or divulge to any current or former employee of the
Company or any other third person or entity (1) the terms and/or contents
of this Agreement, including the conversations and negotiations which led
to the execution of this Agreement and the consideration being provided in
settlement of this matter; and (2) any of the events that led to the
negotiation and execution of this Agreement. This provision shall not bar
the parties from discussing such matters with their attorneys or
accountants or tax advisors or spouses, as long as they notify them of the
confidential nature of this Agreement in advance of such discussion, or
otherwise provides information as required pursuant to a valid subpoena or
as otherwise required by law.
5. Urban Xxxxxx promises not to solicit, encourage or contact any third
person or entity that is or may be an adversary or potential adversary of
the Company (including any current or former employee) concerning the
maintenance of any charges, claims, actions, demands, or lawsuits
whatsoever against the Company or its current or former officers,
employees, attorneys, agents, assigns, insurers, representatives, counsel,
administrators, successors, parent companies, subsidiaries, affiliates,
shareholders, and/or directors. Urban Xxxxxx further agrees not to
voluntarily participate in or encourage other charges, claims, actions or
litigation against the Company or its current or former officers,
employees, attorneys, agents, assigns, insurers, representatives, counsel,
administrators, successors, parent companies, subsidiaries, affiliates,
shareholders, and/or directors and to participate in such charges, claims,
actions or litigation only if he is compelled to do so by subpoena or
other court order. Urban Xxxxxx agrees to notify the Company within a
reasonable period of time after he has learned of such subpoena or other
court order. Urban Xxxxxx further agrees that he will use reasonable
efforts to cooperate with the Company in connection with any efforts it
may exert to challenge or quash such subpoena or court order, or to seek a
protective order.
6. Urban Xxxxxx hereby waives any right to reinstatement and affirmatively
states he does not want to be reinstated by the Company. Urban Xxxxxx and
the Company further agree that Urban Xxxxxx will not now or at any time in
the future apply for or accept employment with the Company or any
subsidiaries. If, either knowingly or unknowingly, Urban Xxxxxx does apply
for and/or is hired for a position with the Company or any subsidiaries,
and, based upon the terms of this Agreement, the Company and/or any
subsidiaries decline to consider Urban Xxxxxx'x application, or, if
already hired, elect to terminate Urban Xxxxxx'x employment, Urban Xxxxxx
acknowledges and agrees that such conduct by the Company or any
subsidiaries shall be appropriate, proper, permissible and consistent with
the terms of this Agreement, and Urban Xxxxxx further agrees that he shall
not seek to contest or otherwise challenge such conduct by a proceeding
before any court or administrative agency or by instituting any other type
of legal proceeding of any kind against the Company. If, in contravention
of the terms of this Agreement, Urban Xxxxxx seeks to commence such
proceeding, he agrees that he shall reimburse the Company or any
subsidiaries for the costs and fees it incurs in connection with obtaining
the dismissal of such proceeding or in defending such proceeding. Urban
Xxxxxx further acknowledges and agrees that the Company has no obligation
to him whatsoever except as set forth in this Agreement, Confessed
Judgment Promissory Note, and any and all outstanding unexercised options
pursuant to the Nonstatutory Stock Option Grant awarded February 18, 2004.
7. The parties acknowledge that they have consulted with legal counsel prior
to executing this Agreement.
8. The terms of this Agreement are contractual and not mere recitals. The
parties acknowledge the accuracy of the Recitals and incorporate the
Recitals into and make them a part of this Agreement.
9. The understandings set forth herein represent the complete agreement of
the parties and may not be altered or changed except by the mutual
agreement of the parties, evidenced in a writing signed by all parties and
specifically identified as an amendment to this Agreement
10. If any covenant or provision of this Agreement is invalid, illegal or
incapable of being enforced by reason of any rule of law, administrative
order, judicial decision or public policy, all other covenants and
provisions herein shall, nevertheless, remain in full force and effect.
11. This Agreement and all covenants contained herein shall be binding upon
the parties hereto and their respective heirs, executors, affiliates,
administrators, successors, and assigns.
12. This Agreement shall be construed under the laws of the State of Maryland,
without regard to its choice of law provisions.
13. This Agreement may be executed simultaneously in two or more counterparts,
each of which will be deemed an original, and it will not be necessary in
making proof of this Agreement to produce or account for more than one
such counterpart. A facsimile of an original signature shall be effective
as an original signature.
14. The obligations of the both parties under this Agreement are contingent
upon each party's execution and non-revocation of this Agreement.
15. Each person executing this Agreement represents that they are authorized
to execute this Agreement on behalf of the relevant party.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
and year first set forth above.
SOLUTION TECHNOLOGY INTERNATIONAL, INC.
By: /s/ Xxx Xxxxxx
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Xxx Xxxxxx
President and CEO
URBAN X. XXXXXX
By: /s/ Urban X. Xxxxxx
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Urban X. Xxxxxx
EXHIBIT 1
CONFESSED JUDGMENT PROMISSORY NOTE
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