EXHIBIT 10.12A
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MUTUAL RELEASE AND TERMINATION AGREEMENT
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This MUTUAL RELEASE AND TERMINATION AGREEMENT (this
"Agreement") is entered into this 19th day of December 2003, by
and between Xxxxxx Capital LLC ("Xxxxxx Capital"), Strategic
Growth International, Inc., its subsidiaries and/or affiliates
(hereinafter "SRG") and Pacific CMA, Inc., its subsidiaries
and/or affiliates (hereinafter "Pacific").
W I T N E S S E T H:
WHEREAS, Xxxxxx Capital and SRG entered into a consulting
agreement, dated October 21, 2003 (the "SRG Consulting
Agreement"), pursuant to which SRG agreed to serve as Investor
Relations Consultant to Xxxxxx Capital for services rendered to
Xxxxxx Capital's client, Pacific;
WHEREAS, Xxxxxx Capital and SRG wish to mutually terminate
the SRG Consulting Agreement;
WHEREAS, Pacific also wishes, among other things, to
acknowledge the termination of the SRG Consulting Agreement; and
WHEREAS, all of the parties desire to provide a mutual and
reciprocal full release of any rights or claims, except for
indemnification rights and/or claims, in respect of the SRG
Consulting Agreement.
NOW, THEREFORE, for and in consideration of the mutual
agreements set forth herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Termination of the SRG Consulting Agreement. Except with
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respect to any indemnification rights and/or obligations by,
between or among the parties thereunder (which shall continue to
survive), the SRG Consulting Agreement is hereby terminated in
its entirety and shall be of no further force and effect and all
rights and obligations of any party thereto shall be of no
further force or effect and no party thereto shall have any
rights, obligations or liabilities of any nature thereunder. SRG
hereby confirms other than the $10,523.92 billed for December
2003, that it is not owed any Service Fees, out-of-pocket
expenses, warrants or any other compensation by Xxxxxx Capital or
Pacific pursuant to the SRG Consulting Agreement or any other
agreement currently in effect. SRG further confirms that it is
entitled to receive only 50,000 five-year common stock purchase
warrants of Pacific at a strike price of $1.20 per share, those
being the warrants that have vested as of the date hereof under
the SRG Consulting Agreement.
2. Xxxxxx Capital Warrants; Additional Warrants. In connection
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with certain past services rendered to Pacific, Xxxxxx Capital is
entitled to receive (i) 50,000 five-year common stock purchase
warrants from Pacific at a strike price of $1.20, and (ii) 50,000
five-year common stock purchase warrants from Pacific at a strike
price of $0.80 (collectively, the "Xxxxxx Capital Warrants").
Pacific hereby confirms that it will deliver the Xxxxxx Capital
Warrants in proper form and executed by Pacific within ten (20)
business days of the date hereof. Pacific further acknowledges
that, in addition to the Xxxxxx Capital Warrants, Xxxxxx is
entitled to receive 186,335 additional five-year common stock
purchase warrants at a strike price of $1.93 ("Additional
Financing Warrants") in connection with its involvement in a
recent private placement transaction conducted on behalf of
Pacific; nothing in this Agreement should act as, be deemed to
be, or otherwise be construed as, a waiver of Xxxxxx Capital's
rights to receive any and all such compensation due and owing
with respect to the private placement and Pacific hereby also
agrees to deliver such Additional Financing Warrants to Xxxxxx
Capital within twenty (20) business days of the date hereof.
3. Xxxxxx Capital Cash Amount. In addition to the warrants set
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forth in Section 2 above, Pacific also owes Xxxxxx fees and
expenses in the amount of $14,456.25 (the "Cash Amount"). These
fees and expenses have been previously invoiced by Xxxxxx
Capital, and Pacific hereby confirms that, as soon as
commercially practicable, it will wire the Cash Amount to the
following account:
Xxxxxx Capital LLC
A/C #94799 80098
ABA # 000000000
Fleet Bank
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
4. SRG Release.
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(a) As of the date hereof for good and valuable consideration,
the receipt and adequacy of which is hereby acknowledged, and
other than with respect to any indemnification rights which it
may hold (whether pursuant to the indemnification provisions
contained in the SRG Consulting Agreement or any other
agreement), SRG hereby unconditionally and irrevocably
compromises, settles, remises, acquits and fully releases and
forever discharges Xxxxxx Capital, Pacific, their respective
parents, subsidiaries, related corporations, limited liability
companies, partnerships and other affiliates, and each of their
respective partners, owners, stockholders, members, predecessors,
successors, assigns, directors, officers, managers, agents,
employees, attorneys, insurers and representatives and all
persons acting by, through, under or in concert with any of them
(hereinafter collectively referred to as the "SRG Releasees"),
from all claims, including without limitation lawsuits, causes of
action, counterclaims, setoffs, choses in action, debts, liens,
contracts, obligations, promises, liabilities, rights, demands,
judgments, damages, losses, costs, expenses and attorneys' fees
of any nature whatsoever, whether known or unknown, which SRG may
now have, own or hold, against such persons and/or entities,
relating to, based upon or arising from any act, omission,
condition or proceedings prior to the date of this Agreement in
connection with, or arising out of, directly or indirectly, the
SRG Consulting Agreement ("Claims"). This release includes, but
is not limited to, any and all Claims for or in connection with
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fraud, discrimination, wrongful termination in violation of
public policy, breach of contract, interference with economic
advantage, breach of fiduciary duty, emotional distress, personal
injury, invasion of privacy, defamation, quantum meruit,
negligence, strict liability and any and all claims arising under
any foreign, federal, state or other governmental statute, law,
regulation or ordinance. This release includes, but is not
limited to, the Claims for prior acts, omissions, conditions or
proceedings alleged in prior communications between the parties,
if any.
(b) SRG agrees not to advocate or incite the institution of,
or assist or participate in, without compulsion of legal process,
any suit or complaint by any Person against SRG Releasees
relating to the foregoing. For purposes of this Agreement,
"Person" will be broadly defined to include any individual,
corporation, limited liability company, partnership, limited
liability partnership, joint venture, association, joint-stock
company, trust, unincorporated organization or government, or any
agency or political subdivision thereof.
5. Xxxxxx Capital Release.
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(a) As of the date hereof for good and valuable consideration,
the receipt and adequacy of which is hereby acknowledged, and
other than with respect to any indemnification rights which it
may hold (whether pursuant to the indemnification provisions
contained in the SRG Consulting Agreement or any other
agreement), Xxxxxx Capital hereby unconditionally and irrevocably
compromises, settles, remises, acquits and fully releases and
forever discharges SRG, Pacific, their respective parents,
subsidiaries, related corporations, limited liability companies,
partnerships and other affiliates, and each of their respective
partners, owners, stockholders, members, predecessors,
successors, assigns, directors, officers, managers, agents,
employees, attorneys, insurers and representatives and all
persons acting by, through, under or in concert with any of them
(hereinafter collectively referred to as the "Xxxxxx Releasees"),
from all Claims. This release includes, but is not limited to,
any and all Claims for or in connection with fraud,
discrimination, wrongful termination in violation of public
policy, breach of contract, interference with economic advantage,
breach of fiduciary duty, emotional distress, personal injury,
invasion of privacy, defamation, quantum meruit, negligence,
strict liability and any and all claims arising under any
foreign, federal, state or other governmental statute, law,
regulation or ordinance. This release includes, but is not
limited to, the Claims for prior acts, omissions, conditions or
proceedings alleged in prior communications between the parties.
(b) Xxxxxx Capital agrees not to advocate or incite the
institution of, or assist or participate in, without compulsion
of legal process, any suit or complaint by any Person against
Xxxxxx Releasees relating to the foregoing.
6. Pacific Release.
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(a) As of the date hereof for good and valuable consideration,
the receipt and adequacy of which is hereby acknowledged, and
other than with respect to any indemnification rights which it
may hold (whether pursuant to the indemnification provisions
contained in the SRG Consulting Agreement or any other
agreement), Pacific hereby unconditionally and irrevocably
compromises, settles, remises, acquits and fully releases and
forever discharges SRG, Xxxxxx Capital, their respective parents,
subsidiaries, related corporations, limited liability companies,
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partnerships and other affiliates, and each of their respective
partners, owners, stockholders, members, predecessors,
successors, assigns, directors, officers, managers, agents,
employees, attorneys, insurers and representatives and all
persons acting by, through, under or in concert with any of them
(hereinafter collectively referred to as the "Pacific
Releasees"), from all Claims. This release includes, but is not
limited to, any and all Claims for or in connection with fraud,
discrimination, wrongful termination in violation of public
policy, breach of contract, interference with economic advantage,
breach of fiduciary duty, emotional distress, personal injury,
invasion of privacy, defamation, quantum meruit, negligence,
strict liability and any and all claims arising under any
foreign, federal, state or other governmental statute, law,
regulation or ordinance. This release includes, but is not
limited to, the Claims for prior acts, omissions, conditions or
proceedings alleged in prior communications between the parties.
(b) Pacific agrees not to advocate or incite the institution
of, or assist or participate in, without compulsion of legal
process, any suit or complaint by any Person against Pacific
Releasees relating to the foregoing.
7. Full and Independent Knowledge; Authority. The parties
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acknowledge and represent that (i) they each have consulted with
and have had the advice and counsel of attorneys, in connection
with the preparation, review, and execution of this Agreement;
(ii) that they each have executed the Agreement without fraud,
duress or undue influence; and (iii) that each party does not
rely and has not relied upon any representation or statement made
by any other party or any of their representatives, with regard
to the subject matter, basis or effect of this Agreement, other
than statements contained in this Agreement. Each of the parties
represent to the other parties that they have the full power and
authority to enter into this Agreement and that this Agreement,
when executed and delivered by such party, will constitute valid
and legally binding obligations of such party, enforceable in
accordance with its terms.
8. Ownership of Claims. The parties represent and warrant
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they have not heretofore assigned or transferred, or purported to
assign or transfer, to any person or entity, any Claims or
portion thereof or interest therein, and each agrees to
indemnify, defend, and hold such other parties harmless from and
against any and all Claims, based on or arising out of any such
assignment or transfer, or purported assignment or transfer, of
any Claims, or any portion thereof or interest therein.
9. Confidentiality. Other than to their respective releasees,
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the parties represent and warrant that the have not disclosed and
will not disclose, other than as mandated by legal process, the
terms of this Agreement; the amounts, if any, referred to in this
Agreement; the fact of the payment of said amounts; or the
content of any discussions between the parties leading to this
Agreement, except that the parties may disclose information
regarding the amounts referred to in this Agreement to their
accountants and tax attorneys in order for such individuals to
render service to him.
10. Successors. This Agreement shall be binding upon the
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successors and assigns of the parties.
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11. Further Assurances. The parties agree, without additional
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consideration, to execute and deliver such other documents and to
take such other action as may be necessary or appropriate to give
full force and effect to the basic terms and intent of this
Agreement.
12. Miscellaneous.
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(a) This Agreement shall be construed and interpreted in
accordance with the laws of the State of New York, and all
disputes hereunder shall be governed thereby. The parties hereto
understand and agree that any controversy or claim arising out of
or related to this Agreement, or any breach thereof, shall be
settled by final and binding arbitration in New York pursuant to
the Commercial Dispute Resolution Procedures and Rules of the
American Arbitration Association ("AAA Rules") and that
disinterested arbitrator shall be selected pursuant to the AAA
Rules.
(b) Should any provision of this Agreement be declared or
determined by any court to be illegal or invalid, the validity of
the remaining parts, terms and provisions shall not be affected
thereby and said illegal or invalid term or provision shall be
deemed not to be a part of this Agreement.
(c) This Agreement sets forth the entire agreement
between the parties hereto, and fully supersedes and replaces any
all prior agreements, negotiations or understandings between the
parties hereto pertaining to the subject matter hereof. Each of
the parties hereto acknowledges that no other party, nor any
agent or attorney of any party, has made any promise,
representation or warranty whatsoever, express or implied, not
contained herein concerning the subject matter hereof, to induce
it to execute this Agreement and acknowledges that it has not
executed this document in reliance on any such promise,
representation or warranty not contained herein.
(d) This Agreement may be executed in one or more
counterparts, and by different parties hereto on separate
counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
(e) The terms and provisions of this Agreement may be
modified or amended only by written agreement executed by both
parties hereto.
IN WITNESS WHEREOF, each of Xxxxxx Capital, SRG and Pacific
have caused this Agreement to be executed by a duly authorized
person on its behalf as of the day and year first above written.
XXXXXX CAPITAL LLC
By: /s/Xxxxxxx Xxxx
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Name: Xxxxxxx Xxxx
Title: Chief Executive Officer
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STRATEGIC GROWTH INTERNATIONAL, INC.
By: /s/Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Chairman
PACIFIC CMA, INC.
By: /s/Xxxxxx Xxx
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Name: Xxxxxx Xxx
Title: Chairman and Chief
Executive Officer
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