SETTLEMENT AGREEMENT AND
MUTUAL RELEASE
This settlement agreement and mutual release (this "Agreement") entered
into on June 6, 2005, and effective as of June 6, 2005, is by and between New
Century Energy Corp., formerly New Vertica Software, Inc., a Colorado
corporation ("New Century"), Core Concepts, LLC., a Virginia limited
liability company ("Core Concepts"), Xxxxxxx X. Xxxxx, an individual ("Xxxxx")
and R. Xxxx Xxxx, an individual ("Xxxx"), collectively referred to as the
"Parties."
1. FACTS.
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1.1 Xxxxx and Xxxx are former directors of New Century.
1.2 Core Concepts advanced approximately $90,000 to or for the benefit of
New Century.
1.3 Xxxxx and Xxxx have signed, as directors of New Century, a consent of
directors authorizing the issuance of 500,000 shares of common stock
to Core Concepts in exchange for any obligation of New Century to
repay such advances.
1.4 A dispute exists between New Century, Core Concepts, Xxxxx and Xxxx
regarding the obligation of New Century to repay such advances, and to
issue such shares in exchange for the obligation to repay such
advances (the "Dispute").
2. MUTUAL RELEASE.
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2.1 In consideration of the agreements and covenants set forth hereinabove
and hereinbelow, the sufficiency of which is hereby acknowledged and
confessed, Core Concepts, Xxxxx and Xxxx, for themselves, and their
agents, servants, directors, managers, members, representatives,
successors, employees and assigns, hereby release, acquit and forever
discharge New Century, its current and former agents, attorneys,
officers, directors, servants, representatives, successors, employees
and assigns from any and all rights, obligations, claims, demands and
causes of action, whether in contract, tort, or state and/or federal
securities regulations, arising from or relating to the Dispute as
well as any other potential claims including all obligations arising
therefrom, and omissions and/or conduct of New Century and/or their
agents, attorneys, servants, representatives, successors, employees,
directors, officers and assigns, relating to the Dispute as well as
any other potential claims.
2.2 In consideration of the agreements and covenants set forth hereinabove
and hereinbelow, the sufficiency of which is hereby acknowledged and
confessed, New Century, for itself, and its agents, servants,
representatives, successors, employees and assigns hereby releases,
acquits and forever discharges Core Concepts, Xxxxx and Xxxx, and
their agents, officers, directors, servants, representatives,
successors, employees and assigns from any and all rights,
obligations, claims, demands and causes of action, whether in
contract, tort, or state and/or federal securities regulations,
arising from or relating to the Dispute as well as any other potential
claims including all obligations arising therefrom, and omissions
and/or conduct of Core Concepts, Xxxxx and Xxxx and/or their agents,
servants, representatives, successors, employees, directors, officers
and assigns, relating to the Dispute as well as any other potential
claims.
2.3 The foregoing releases by the Parties relate to disputed claims for
the purpose of avoiding the costs and risks associated with litigation
of the Dispute. Nothing in this Agreement is intended to be or shall
be construed as an admission of any fact or obligation or admissible
for any purpose except the enforcement of the provisions of this
Agreement. It is intended that all claims and potential claims of the
Parties against one another are released pursuant to this AGREEMENT.
3. CONSIDERATION FOR CORE CONCEPTS', XXXXX'X AND XXXX'X RELEASE. As
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consideration for the release by Core Concepts, Xxxxx and Xxxx set forth in
Section 2.1 hereof, New Century agrees to issue to Core Concepts an
aggregate of Two-Hundred and Fifty Thousand (250,000) restricted shares of
New Century's common stock, which shares shall be fully paid and
non-assessable upon their issuance (the "Shares") and shall have the
registration rights provided in Section 3.1 below. Core Concepts, Xxxxx and
Xxxx hereby acknowledge that they will receive valid consideration from the
Shares.
3.1 PIGGYBACK REGISTRATION RIGHTS. New Century agrees that if, at any time
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during the twelve month period, beginning on the date first written
above, it proposes to file a registration statement with respect to
any class of equity or equity-related security (other than in
connection with an offering to New Century's employees or in
connection with an acquisition, merger or similar transaction) under
the Securities Act of 1933 in a primary registration on behalf of New
Century and/or in a secondary registration on behalf of holders of
such securities and the registration form to be used may be used for
registration of the Shares, New Century will give prompt written
notice to Core Concepts of its intention to file a registration
statement and will offer to include in such registration statement,
such number of the Shares with respect to which New Century has
received written requests for inclusion therein within Twenty (20)
days after the giving of notice by New Century. This Section is not
applicable to a registration statement filed by New Century on Forms
S-4 or S-8 or any successor forms.
3.2 RULE 144 OPINIONS. New Century agrees to timely file all reports
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required to be filed with the SEC under Section 13 of the Securities
Exchange Act of 1934. New Century acknowledges that Core Concepts may
retain Xxxxxxxx X. Xxxxxx, Esq., of Houston, Texas, or any other legal
counsel mutually agreed upon by the Parties, to provide a legal
opinion regarding whether, after the required holding period, a
proposed sale of the Shares issued to Core Concepts in connection with
this Mutual Release may be sold in compliance with Rule 144. A copy of
each opinion letter and attachments shall be provided by Xxxxxxxx X.
Xxxxxx, Esq., or any other legal counsel mutually agreed upon by the
Parties, to New Century for review and approval and, if such
subsequent transfer complies with the rules and regulations set forth
in Rule 144 and there is no bona fide legal or factual reason for
declining to consent to the removal of the restrictive legend, New
Century agrees to promptly advise its stock transfer agent that it may
remove the restrictive legend from Core Concepts' stock certificate
upon delivery of a complete and accurate compliance package from Core
Concepts' broker-dealer.
4. CONSIDERATION FOR NEW CENTURY'S RELEASE. As consideration for the release
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by New Century set forth in Section 2.2 hereof, Core Concepts, Xxxxx and
Xxxx agree to forgo, halt and otherwise end the Dispute and agree that they
will not file any litigation or arbitration proceedings in connection with
the Dispute in the future. New Century hereby acknowledges that they will
receive valid consideration from this.
5. TERMS OF THE ISSUANCE OF THE SHARES. New Century agrees that the
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Issuance shall be affected within Ten (10) days of the date this Agreement
is entered into, as first written above.
6. TERMINATION OF ALL PREVIOUS AGREEMENTS. All previous agreements among
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the Parties and any and all related agreements and obligations are hereby
terminated without further rights, obligations or liabilities of any Party
thereunder.
7. NO OTHER CAUSE OF ACTION. The Parties are not aware of any claims not
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being released herein against them.
8. CAPACITY. The Parties represent that they are lawfully authorized to
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execute this Agreement. The Parties to this Agreement further represent
that they have read it in full before its execution and that they fully
understand the meaning, operation and effect of its terms.
9. ASSIGNMENTS. Core Concepts, Xxxxx and Xxxx represent that they have not
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assigned, in whole or in part, any claims, demands and/or causes of action
against New Century to any person or entity prior to their execution of
this Agreement. New Century represents that it has not assigned, in whole
or in part, any claim, demand and/or causes of action against Core
Concepts, Xxxxx and/or Xxxx to any person or entity prior to its execution
of this Agreement.
10. BINDING EFFECT. This Agreement shall be binding on and inure to the
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benefit of the Parties and their respective heirs, successors, assigns,
directors, officers, agents, employees and personal representatives.
11. MODIFICATION. No modification or amendment of this Agreement shall be
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effective unless such modification or amendment shall be in writing and
signed by all Parties hereto.
12. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
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between the Parties pertaining to the subject matter hereof and supersedes
all prior and contemporaneous agreements, understandings, negotiations and
discussions, whether oral or written, of the Parties in connection with the
subject matter hereof.
13. INTERPRETATION. The interpretation, construction and performance of
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this Agreement shall be governed by the laws of Texas. Whenever used
herein, the singular number shall include the plural, the plural shall
include the singular and the use of any gender shall be applicable to all
genders.
14. FAXED SIGNATURES. For purposes of this Agreement a faxed signature
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shall constitute an original signature.
15. EXECUTION. This Agreement may be executed in several counterparts, each
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of which shall be deemed an original, and such counterparts taken together
shall constitute but one and the same Mutual Release.
IN WITNESS WHEREOF, intending to be legally bound, the Parties hereto have
executed this Mutual Release as of the date first written above.
CORE CONCEPTS, LLC NEW CENTURY ENERGY CORP.
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By: /s/ R. Xxxx Xxxx By: /s/ Xxxxxx X. XxXxxxxxx
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Its: Managing Member Its: President and CEO
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Printed Name: R. Xxxx Xxxx Printed Name: Xxxxxx X. XxXxxxxxx
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XXXXXXX X. XXXXX R. XXXX XXXX
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/s/ Xxxxxxx X. Xxxxx /s/ R. Xxxx Xxxx
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