MUTUAL GENERAL RELEASE
EXHIBIT
1.1
This
Mutual General Release
(this
“Release”) is made and entered into on July 19, 2007, between SBE,
Inc. (“SBE”),
on the one hand, and Xxxxx
Xxxxxxx (“Xxxxxxx”),
on the other hand.
Recitals
A. A
dispute
has arisen between SBE, on the one hand, and Xxxxxxx, on the other hand,
pertaining to their respective rights and obligations arising out of or related
to SBE’s acquisition of PyX Technologies, Inc. and SBE’s employment of
Xxxxxxx.
B. Without
admitting the merits of either party’s assertions, SBE desires to finally
compromise, settle and discharge all claims, controversies, demands, actions
or
causes of action that SBE may have or claim to have against Xxxxxxx, and Xxxxxxx
desires to compromise, settle and discharge all claims, controversies, demands,
actions or causes of action that either of them may have or claim to have
against SBE.
C. In
connection with this Release, SBE has agreed to release all of Xxxxxxx’x shares
of SBE stock from the escrow entered into by SBE and Xxxxxxx in connection
with
the acquisition of PyX Technologies, Inc. (the “Escrow”) promptly upon execution
of this Release.
Agreement
In
consideration of the promises and mutual covenants and agreements contained
in
this Release, the parties hereto covenant and agree as follows:
1. Xxxxxxx
hereby forever generally and completely releases and discharges SBE and its
agents, directors, officers and employees, and all others, of and from any
and
all claims and demands of every kind and nature, in law, equity or otherwise,
known and unknown, suspected and unsuspected, disclosed and undisclosed, and
in
particular of and from all claims and demands of every kind and nature, known
and unknown, suspected and unsuspected, disclosed and undisclosed, for damages
actual and consequential, past, present and future, arising out of or in any
way
related to SBE’s obligations, activities and/or dealings with Xxxxxxx or any
third party at any time prior to the date hereof, including (without limitation)
all such claims and demands arising out or in any way related to the aforesaid
circumstances and dispute.
2. SBE
hereby forever generally and completely releases and discharges Xxxxxxx of
and
from any and all claims and demands of every kind and nature, in law, equity
or
otherwise, known and unknown, suspected and unsuspected, disclosed and
undisclosed, and in particular of and from all claims and demands of every
kind
and nature, known and unknown, suspected and unsuspected, disclosed and
undisclosed, for damages actual and consequential, past, present and future,
arising out of or in any way related to Xxxxxxx’x obligations, activities and/or
dealings with SBE or any third party at any time prior to the date hereof,
including (without limitation) all such claims and demands arising out or in
any
way related to the aforesaid circumstances and dispute.
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3. It
is
understood and agreed that this is a full, complete and final general release
of
any and all claims described as aforesaid, and each party agrees that it shall
apply to all unknown, unanticipated, unsuspected and undisclosed claims,
demands, liabilities, actions or causes of action, in law, equity or otherwise,
as well as those that are now known, anticipated, suspected or
disclosed.
4. It
is
understood and agreed that this is a compromise settlement of disputed claims
and that the promises in consideration of this Release shall not be construed
to
be an admission of any liability or obligation whatsoever by either party to
the
other party or to any other person whomsoever.
5. Each
party has been fully advised by his or its respective attorney of the contents
of Section 1542 of the Civil Code of the State of California, and that section
and the benefits thereof are hereby expressly waived. Section 1542 reads as
follows:
“Section
1542. (General
Release - Claims Extinguished.)
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.”
6. Each
party warrants and represents that there are no liens or claims of lien or
assignments in law or equity or otherwise of or against any of the claims or
causes of action released herein and, further, that each party is fully entitled
and duly authorized to give this complete and final general release and
discharge.
7. Each
party will indemnify and save harmless each other party hereto from any loss
incurred directly or indirectly by reason of the falsity or inaccuracy of any
representation made herein by it.
8. SBE
agrees to release from the Escrow and deliver to Xxxxxxx in accordance with
Section 15 of this Release, within five business days after each party’s
execution and delivery of this Release to the other party, all of Xxxxxxx’x
shares of SBE stock held in the Escrow. Until such time as Xxxxxxx ceases to
own
10% of the outstanding shares of Common Stock of SBE, Xxxxxxx shall provide
written notice to SBE of each purchase, sale or other transaction involving
SBE
shares held by Xxxxxxx, including all information necessary for SBE to complete
and file with the Securities and Exchange Commission on Xxxxxxx’x behalf any
report or schedule required under Section 13 or Section 16 of the Securities
Exchange Act of 1934 as a result of such transaction, and SBE shall file such
schedules and reports on Xxxxxxx’x behalf within two business days after receipt
of all such information.
9. This
Release contains the entire agreement between the parties hereto and constitutes
the complete, final and exclusive embodiment of their agreement with respect
to
the subject matter hereof. The terms of this Release are contractual and not
a
mere recital. This Release is executed without reliance upon any promise,
warranty or representation by any party or any representative of any party
other
than those expressly contained herein, and each party has carefully read this
Release, has been advised of its meaning and consequences by his or its
respective attorney, and signs the same of his or its own free
will.
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10. This
Release shall bind the heirs, personal representatives, successors and assigns
of each party, and inure to the benefit of each party, its agents, directors,
officers, employees, servants, successors and assigns.
11. Each
party to this Release will bear its own costs, expenses and attorney’s fees,
whether taxable or otherwise, incurred in or arising out of or in any way
related to the matters released herein, except as is otherwise specifically
provided herein.
12. This
Release and the terms hereof shall be held in strictest confidence by the
parties hereto and shall not be publicized or disclosed in any manner whatsoever
other than as necessary to carry out its provisions. If pursuant to subpoena
or
otherwise, disclosure of this Release or its terms is sought by compulsion
of
law, the party seeking disclosure or against whom such compelled disclosure
is
directed shall promptly provide all parties hereto and their counsel sufficient
notice in advance of such proposed disclosure to enable them to be heard with
respect to any such proposed disclosure or to otherwise respond to any such
compulsion.
13. This
Release shall be deemed to have been entered into and shall be construed and
enforced in accordance with the laws of the State of California as applied
to
contracts made and to be performed entirely within California.
14. This
Release may be executed 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.
15. This
Release shall not become effective until SBE has released and delivered to
Xxxxxxx all of his shares of SBE stock held in Escrow, and this Release shall
be
null and void if such shares are not delivered to Xxxxxxx within five business
days after the parties’ execution and delivery of this Release to each other.
For the purposes of this paragraph, the shares of SBE stock held in Escrow
shall
be deemed released and delivered to Xxxxxxx (a) upon delivery by messenger,
with
written confirmation of receipt, or (b) one day after deposit with Federal
Express, specifying next day delivery, in either case to the following
address:
Fenwick & West LLP
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx
16. Xxxxxxx
represents and warrants to SBE that he has executed and delivered to SBE the
proxy card pertaining to the Special Meeting of Stockholders currently scheduled
to be held on August 10, 2007, indicating his affirmative vote as to all matters
set forth thereon (the “Proxy”). Xxxxxxx agrees that the Proxy is coupled with
an interest and shall be irrevocable to the fullest extent permitted by law
at
all times prior to the Proxy Expiration Date (as defined below) with respect
to
the shares referred to therein. For the purposes of this paragraph, the “Proxy
Expiration Date” shall be earliest of (i) the date upon which the Agreement and
Plan of Merger and Reorganization, dated January 19, 2007 and amended as of
May
18, 2007, among SBE, Cold Winter Acquisition Corporation and Neonode Inc. is
validly terminated, (ii) the date upon which the merger contemplated by such
agreement becomes effective and (iii) 5:00 p.m. California time on the date
that
is five business days after the date that this Release is executed and delivered
by the parties to this Release.
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The
parties have duly authorized and caused this Release to be executed at San
Ramon, California, on the date first above written.
SBE,
Inc.
By:
/s/
Xxxxx
Xxxxxxx
Xxxxx
Xxxxxxx
Chief
Financial Officer
/s/
Xxxxx
Xxxxxxx
Xxxxx
Xxxxxxx
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