SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT (this
“Agreement”)
is made and entered into as of the 16th day of October, 2008 by and among Xxxxxx
Laser, Inc. (“Plaintiff”),
a corporation registered in the State of Nevada having its principal place of
business located at 00 Xxxxxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 on the one
hand, and DC International Consulting, a New Jersey limited liability company
having its principal place of business at 0000 Xxxxxx Xxxxx, Xxxxxxxxx, Xxx
Xxxxxx 00000, Xxxxx Xxxxx, an individual who resides at 00 Xxxxxxxxx Xxxx,
Xxxxxxx, Xxx Xxxxxx 00000, and Interwest Transfer Co., Inc., a corporation
registered in the State of Utah having its principal place of business located
at 0000 Xxxx 0000 Xxxxx, Xxxxx 000, Xxxx Xxxx Xxxx, Xxxx 00000
(collectively, “Defendants”),
on the other hand.
WHEREAS, Plaintiff
has filed a complaint against the Defendants captioned Xxxxxx Laser, Inc.
v. Xxxxx Xxxxx, DC International Consulting, LLC,
Xxxxx Xxxxx and Interwest Transfer Co., Inc., Superior Court
of New Jersey, Chancery Division, Bergen County (Civil Action No.
C-212-08) (the “Litigation”);
and
WHEREAS,
Plaintiff and Defendants desire to finally and completely resolve the
Litigation.
NOW,
THEREFORE, for the consideration and mutual promises set forth herein, the legal
adequacy and sufficiency of which is acknowledged by all parties, the
undersigned parties agree as follows:
Section
1. Settlement of Disputed
Claims. The parties expressly acknowledge that this Agreement
is being made as a compromise and settlement of disputed issues; that the
execution and compliance with this Agreement is not and shall not be construed
to be an admission by any party of any liability or obligation to any other
party or any liability or other obligation by any party to any third
party; that each party expressly denies any fault or liability on its
part; that no party shall seek to utilize or assert that this Agreement or any
consideration paid pursuant hereto is an admission against any party in
connection with any proceeding, action or claim; and that the parties enter into
this Agreement solely to resolve the existing disputes among themselves on an
amicable basis and to avoid the time, burden and expense of litigation and
arbitration.
Section
2. Release of Claims by
Plaintiff. Plaintiff, for itself, its successors and assigns,
hereby unconditionally and irrevocably releases and discharges from
any and all claims, actions, causes of action, rights, promises, sums of money
due or liabilities that it asserted, or could have asserted, against Defendants
as of the date of this Agreement, and covenants not to xxx
Defendants with respect to any such released claim. This
Release of Claims, however, shall not prevent Plaintiff from filing any legal
claim to enforce some or all of the terms of this Agreement.
Section
3. Release of Claims by
Defendants. Each of the Defendants, for themselves and on
behalf of their successors and assigns, unconditionally and irrevocably releases
and discharges from any and all claims, actions, causes of action,
rights, promises, sums of money due or liabilities that it asserted, or could
have asserted, against Plaintiff as of the date of this Agreement, and covenants
not to xxx Plaintiff with respect to any such released claim. This
Release of Claims, however, shall not prevent Defendants from filing any legal
claim to enforce some or all of the terms of this Agreement.
Section
4. Dismissal of Claims by
Plaintiff and Counterclaims by Defendants. Within ten (10)
days of the date of this Agreement, Plaintiff shall dismiss with prejudice all
claims asserted or that could have been asserted by Plaintiff against Defendants
in the Litigation. Within ten (10) days of the date of this
Agreement, Defendants shall dismiss with prejudice all counterclaims asserted or
that could have been asserted by Defendants against Plaintiff in the
Litigation.
Section
5. Plaintiff’s Issuance of
Stock to Defendants.
a. Plaintiff
shall re-issue one or more certificates as instructed by Defendant Xxxxx Xxxxx
for 1,250,000 shares (the "Reissired Shares") of its common stock within (3)
days after the date of this Agreement. The Reissued Shares shall be unregistered
and shall bear an appropriate restrictive legend. The Reissued Shares shall be
provided as a replacement for the certificate previously issued pursuant to the
Consulting Agreement dated November 14,2007, and shall be deemed to have been
issued as of that date.
b. Pursuant
to Securities and Exchange commission Rule 144, the holding period for the
Reissued Shares shall expire on or about November 14, 2008. The Defendants
hereby agree that they will not submit any of the Reissued Shares for removal of
the restrictive legend on or after November 14, 2008 except as follows: at any
time on or after January 15, 2009 the Defendants may submit up to 42,000 shares
of the Reissued Shares to the transfer agent for the removal of the restrictive
legend; at any time on or after March 15, 2009 the Defendants may submit up to
an additional 63,000 shares of the Reissued Shares to the transfer agent for the
removal of the restrictive legend; and at any time on or after June 15, 2009 the
Defendants may submit any or all of the balance of 1,145,000 of the Reissued
Shares to the transfer agent for the removal of the restrictive legend, Provided
that the Defendants have supplied the transfer agent with all required
information with respect to the request to remove the restrictive legends
pursuant to the schedule set forth above, the , Plaintiff shall instruct its
transfer agent to comply with the Defendants request and remove the restrictive
legend fiom the submitted shares. It is expressly understood that should the
Defendants submit any of the Reissued Shares to the transfer agent for removal.
of the restrictive legend prior to the dates set forth above that the transfer
agent may reject such request, and the Defendants expressly waive any potential
claim against the transfer agent based on its refusal to remove the restrictive
legend except as provided for in this paragraph.
c. Defendants
shall return within one (1) day afier the date of this Agreement by overnight
courier addressed to Plaintiff at the address set forth above the certificate
previously issued by Plaintiff in the amount of 2,500,000 shares to Plaintiff
that Plaintiff shall cancel and replace with the certificate above for 1,250,000
shares issued in the name as directed by Defendant Xxxxx Xxxxx. Plaintiff makes
no assurance of the price at which the shares of its common stock may be sold by
Defendants and Defendants expressly waive any potential claim against Plaintiff
based on any expectation by the Defendants of the price at which such shares
could or should be sold.
Section
6. Non-Disparagement.
The parties agree that they will not make any disparaging or defamatory remarks
or comments regarding each other (including, but not limited to, any other
party’s employees, practices, products, and services), expressly or by
implication.
Section
7. Termination of Consulting
Agreement. Plaintiff and Defendants agree that the Consulting
Agreement dated November 14, 2007 upon which the Litigation was brought is
hereby terminated and shall be considered null and void and of no further
effect.
Section
8. Severability. Should
any provision in this Agreement be declared or determined to be illegal or
invalid, the validity of the remaining parts, terms, or provisions shall not be
affected thereby, and the illegal or invalid part, term, or provision shall be
deemed not to be part of this Agreement, and all remaining provisions shall
remain valid and enforceable.
Section
9. No
Waiver. The failure of any party to this Agreement to enforce
at any time, or for any period of time, any one or more of the terms of this
Agreement shall not be a waiver of such terms or conditions or of such party’s
right thereafter to enforce each and every term and condition of this
Agreement.
Section
10. Authority. The
corporate party listed below, by its signature, represent and warrant that the
person signing this Agreement on its behalf have full and binding authority to
do so.
Section
11. Choice of
Law. This Agreement shall be interpreted and enforced in
accordance with the laws of New Jersey, notwithstanding any contrary choice of
law principles.
Section
12. Jurisdiction. The
parties understand and agree that the Superior Court of New Jersey, Chancery
Division, Bergen County has continuing jurisdiction of this action for purposes
of enforcing the terms of this Agreement.
Section
13. Entire
Agreement. This Agreement constitutes the entire and exclusive
agreement between and among the parties on the matters set forth herein, and any
and all prior or contemporaneous agreements, understandings, promises,
representations, warranties, and covenants, whether written or oral, and whether
express, implied, or apparent, are hereby deemed to be merged into and made part
of this Agreement.
Section
14. No Presumption Against
Drafter. This Agreement has been drafted through a cooperative
effort of all parties, and none of the parties shall be considered the drafter
of this Agreement so as to give rise to any presumption or convention regarding
construction of this document.
Section
15. Fees and
Costs. Except as set forth above, the parties agree to bear
their own costs and attorneys’ fees related to the Litigation.
Section
16. Confidentiality of this
Settlement Agreement. The terms of this Agreement are to be
kept confidential by the parties except as may be necessary to enforce any terms
of this Agreement or otherwise required by law.
Section
17. Recitals. The
parties acknowledge the accuracy of the Recitals and incorporate the Recitals
into and make them a part of this Agreement.
Section
18. Counterparts. This
Agreement 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. Each such original, electronically-imaged, or facsimile
copy of this Agreement executed in counterpart by any of the parties shall be
deemed to be an original for all purposes.
Section
19. Legal
Advice. The parties understand and agree to the terms of this
Agreement. They represent that they have sought and obtained legal
advice about its scope and effect and have entered into the Agreement freely and
voluntarily.
[Signature Page to Settlement
Agreement follows]
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XXXXXX
LASER, INC.
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DC
INTERNATIONAL CONSULTING, LLC
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/s/
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By: |
/s/
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Its: |
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/s/
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Xxxxx
Xxxxx
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INTERWEST
TRANSFER CO., INC.
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/s/
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[Signature Page to Settlement
Agreement]
