EXHIBIT 10.23
RELEASE
-------
THIS MUTUAL RELEASE (this "Release"), dated as of June 30, 2005, is made by
and among Spotless Plastics (USA), Inc., a Delaware corporation ("Spotless"),
Windswept Acquisition Corporation, a Delaware corporation ("WAC" and together
with "Spotless", the "Companies"), Xxxxx X. Xxxxxx, Xxxxx X. Xxxxxx, Xxxxxx X.
Xxxxx, Xxxx X. Xxxxxxxxx and Xxxxxxx X. Xxxxx, Xx. (collectively, the "Nominee
Directors"), Xxxxxx Xxxxxx and Windswept Environmental Group, Inc., a Delaware
corporation ("WEGI").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Companies have entered into certain agreements with WEGI, and
Xxxxxxx X'Xxxxxx, dated as of the date hereof (the "WEGI Agreements"), pursuant
to which Xxxxxxx X'Xxxxxx has agreed to purchase a portion of Spotless' shares
of WEGI and Spotless and WEGI have agreed, among other things, to cancel all of
the remaining of shares of WEGI's stock held by Spotless and arrange for the
provision of transition services by Spotless and Xxxxxx Xxxxxx to WEGI, on the
terms and subject to the conditions set forth therein;
WHEREAS, WEGI has granted to Laurus Master Fund, Ltd., a Cayman Islands
company, an option to acquire securities of WEGI pursuant to the Securities
Purchase Agreement by and among Laurus, WEGI and Spotless (the "Purchase
Agreement");
WHEREAS, each of the Nominee Directors was, prior to the date hereof, a
member of the board of directors of WEGI and also a director and/or officer of
Spotless or one or more of its affiliates;
WHEREAS, the parties hereto have agreed in connection with the WEGI
Agreements to mutually release each other from any and all claims pursuant to
the terms and conditions set forth herein; and
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, it is HEREBY AGREED:
1.1 Waiver and Release by WEGI. For good and valuable consideration, WEGI,
effective on the date hereof, for itself and on behalf of its respective
parents, subsidiaries, affiliates, officers, directors, agents, employees and
its or their respective successors and assigns (collectively, the "WEGI
Releasors"), hereby irrevocably and unconditionally releases, waives and forever
discharges Spotless and its affiliates, officers (including with limitation
Xxxxxx Xxxxxx), directors, agents, employees, its parents and subsidiaries
(including, without limitation, WAC) and their respective
affiliates, officers, directors, agents, employees and its or their
respective successors or assigns and each of the Nominee Directors and each of
their respective successors and assigns (collectively, the "WEGI Releasees"),
from any and all actions, causes of action, suits, debts, covenants, contracts,
claims, demands, damages, rights, remedies and liabilities of whatsoever kind,
in law or equity, past or present, that they have ever had from the beginning of
time, may now have, can have or may in the future assert against any WEGI
Releasee, arising out of, related to, based on or resulting from any of the acts
or omissions attributable to any WEGI Releasee in connection with the WEGI
Agreements and any and all actions contemplated thereby, or conditions existing
or events occurring with any respect to WEGI or any WEGI Releasee, on or prior
to the date hereof, except with respect to any rights of, or obligations owed
to, any WEGI Releasor under the WEGI Agreements, including with respect to
Section 3.7 of the Purchase Agreement, under the Sale Agreement of the account
receivable of the New York City Department of Environmental Protection, dated as
of the date hereof, by and between WEGI and Spotless (the "Sale Agreement") and
the Transition Services Agreement, dated as of the date hereof, by and among
WEGI, Spotless and Xxxxxx Xxxxxx (the "Transition Services Agreement").
1.2 Waiver and Release by Spotless and the Nominee Directors. Except to the
extent provided in the next succeeding sentence, for good and valuable
consideration, Spotless, effective on the date hereof, for itself and on behalf
of its respective parents, subsidiaries, affiliates, officers, directors,
agents, employees and its or their respective successors and assigns and each of
the Nominee Directors and each of their respective successors and assigns
(collectively, the "Spotless Releasors"), hereby irrevocably and unconditionally
releases, waives and forever discharges WEGI and its affiliates, officers,
directors, agents, employees, its parents and subsidiaries and their respective
affiliates, officers, directors, agents, employees and its or their respective
successors or assigns (collectively, the "Spotless Releasees"), from any and all
actions, causes of action, suits, debts, covenants, contracts, claims, demands,
damages, rights, remedies and liabilities of whatsoever kind, in law or equity,
past or present, that they have ever had from the beginning of time, may now
have, can have or may in the future assert against any Spotless Releasee,
arising out of, related to, based on or resulting from any of the acts or
omissions attributable to any Spotless Releasee in connection with the WEGI
Agreements and any and all actions contemplated thereby, or conditions existing
or events occurring with any respect to WEGI or any Spotless Releasee, on or
prior to the date hereof, except with respect to any rights of, or obligations
owed to, any Spotless Releasor under the WEGI Agreements, including the Sale
Agreement and under the Transition Services Agreement. Notwithstanding the
foregoing, the release provided herein to the Spotless Releasees shall not apply
to, or otherwise affect or modify, the obligations of WEGI under the Security
Agreement dated the date hereof, by and between WEGI and Spotless and under the
Subordinated Secured Promissory Note in the principal amount of $500,000 dated
the date hereof and made by WEGI in favor of Spotless, which obligations shall
remain in full force and effect for the benefit of
Spotless.
1.3 Indemnity. Each of the parties hereto shall defend, indemnify and save
and hold harmless each of their respective releasees from and against all
losses, damages, claims, demands, suits, judgments, costs, expenses,
liabilities, obligations and sanctions of every kind and character including,
without limitation, reasonable attorneys' fees and expenses, court costs and
costs of investigation) resulting, directly or indirectly, from any breach of
this Release by any such party.
1.4 Governing Law. This Release shall be governed by and construed in
accordance with the laws of the State of New York, without regard to the
conflicts of law principles of such state other than N.Y. GEN. OBLIG. LAW
Sections 5-1401 and 5-1402.
1.5 Jurisdiction. ANY SUIT, ACTION OR PROCEEDING SEEKING TO ENFORCE ANY
PROVISION OF, OR BASED ON ANY MATTER ARISING OUT OF OR IN CONNECTION WITH, THIS
AGREEMENT SHALL BE BROUGHT IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK (OR, IF SUBJECT MATTER JURISDICTION IS UNAVAILABLE, IN XXX
XXXXXX XX XXX XXXXX XX XXX XXXX LOCATED IN NEW YORK COUNTY), AND EACH OF THE
PARTIES HEREBY CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS (AND OF THE
APPROPRIATE APPELLATE COURTS) IN ANY SUCH SUIT, ACTION OR PROCEEDING, WAIVES ANY
OBJECTION TO VENUE LAID THEREIN AND IRREVOCABLY AGREES TO BE BOUND BY ANY
JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT.
Section 1.6 Amendment. This Release may not be amended or modified except
by a written agreement signed by each of the parties hereto.
Section 1.7 Counterparts. This Release may be executed in one or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same agreement.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
officers to execute and deliver this Release as of the date first set forth
above.
SPOTLESS PLASTICS (USA), INC.
By: /s/ Xxxxxxx X. Xxxxx, Xx.
-------------------------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Senior Vice President of Operations
WINDSWEPT ACQUISITION
CORPORATION
By: /s/ Xxxxxxx X. Xxxxx, Xx.
-------------------------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
Title:
WINDSWEPT ENVIRONMENTAL GROUP, INC.
By: /s/ Xxxxxxx X'Xxxxxx
-------------------------------------------
Name: Xxxxxxx X'Xxxxxx
Title: President
/s/ Xxxxx X. Xxxxxx
-----------------------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxx
-----------------------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxx
-----------------------------------------------
Xxxxxx X. Xxxxx
/s/ Xxxx X. Xxxxxxxxx
-----------------------------------------------
Xxxx X. Xxxxxxxxx
/s/ Xxxxxxx X. Xxxxx, Xx.
-----------------------------------------------
Xxxxxxx X. Xxxxx, Xx.
/s/ Xxxxxx Xxxxxx
-----------------------------------------------
Xxxxxx Xxxxxx
