EXHIBIT 10.7
SETTLEMENT AGREEMENT AND MUTUAL RELEASE OF CLAIMS
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This Settlement Agreement and Mutual Release of Claims ("Agreement") is
entered into by and between SSP SOLUTIONS, INC., a Delaware corporation, XXXXXX
XXXXXXX, XXXX XXXX, XXXXXXX X. XXXXX and XXXXXX XXXXXX, individuals, on the one
hand (referred to collectively herein as "SSP"), and CONTROL BREAK
INTERNATIONAL, INC., a Florida corporation ("CONTROL BREAK"), on the other hand.
SSP and CONTROL BREAK shall be referred to herein collectively as the "Parties."
RECITALS
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A. On or about July 25, 2003, CONTROL BREAK filed an action entitled
Control Break International Inc. v. SSP Solutions, Inc., et al. in the Circuit
Court of the Twentieth Judicial Circuit in and for Xxxxxxx County, Florida, case
no. 03-3048 CA, alleging enforcement of certain promissory notes (the "Action").
B. CONTROL BREAK's Complaint in the Action alleges that SSP entered into
two promissory notes with CONTROL BREAK on April 18, 2002, identified as
Promissory Note 1 and Promissory Note 2 and attached as Exhibits A and B to the
Complaint (the "Promissory Notes"). This Complaint alleges that SSP defaulted on
the Promissory Notes, and that CONTROL BREAK suffered damages as result.
C. By entering into this Agreement, the Parties wish to avoid further
litigation and settle all existing disputes between them arising out of or
related to the Action and all other disputes between them on the terms and
conditions specified herein.
NOW, THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, the parties agree as follows:
1. PAYMENT OF SETTLEMENT AMOUNT.
The Parties agree that SSP shall make payment to CONTROL BREAK the sum of
Four Hundred Thousand Dollars ($400,000.00) (the "Settlement Amount") on or
before September 17, 2003.
2. CONDITION PRECEDENT.
Payment of the Settlement Amount listed in Paragraph 1 by September 17,
2003, shall be a condition precedent to the enforceability of this Agreement.
Should SSP fail to pay the Settlement Amount to CONTROL BREAK by this date, this
Agreement shall be void and unenforceable.
3. DISMISSAL OF THE PRIOR ACTION AND THE PENDING ACTION.
Within ten (10) days of receipt of Settlement Amount listed in Paragraph
1, counsel for CONTROL BREAK shall file and serve a Request for Dismissal of the
Action with the court dismissing the Action in its entirety with prejudice.
4. RELEASE.
(a) RELEASE BY SSP. Except for the obligations imposed upon
SSP pursuant to the terms of this Agreement, and for the rights reserved by SSP
by this Agreement, SSP, for itself and for its predecessors, successors,
assigns, affiliates, representatives, agents, principals, employees, parent
corporations or entities, subsidiary corporations or entities, attorneys,
accountants, shareholders, directors, officers (including but not limited to
Xxxxxx Xxxxxxx, Xxxx Xxxx, Xxxxxxx X. Xxxxx, and Xxxxxx Xxxxxx), and each of
them (collectively, the "SSP Parties"), do hereby absolutely, fully and forever,
release, relieve, waive, relinquish and discharge CONTROL BREAK, and its
predecessors, successors, assigns, affiliates, representatives, agents,
principals, employees, parent corporations or entities, subsidiary corporations
or entities, attorneys, accountants, shareholders, directors and officers and
each of them (collectively, the "CONTROL BREAK Parties"), of and from such
manner of actions, causes of action, suits, debts, deficiencies, liabilities,
demands, claims, obligations, costs, expenses, sums of money, controversies,
damages, accounts, reckonings, security interests and liens of every kind or
nature whatsoever, whether known or unknown, suspected or unsuspected, which
relate to, or arise out of any matter, fact or transaction which arose prior to
the date of this Agreement, including, without limitation, any claims arising
out of or related to the Action. Notwithstanding the above, this release does
not extend to any claim for indemnity, contribution, breach of warranty, or
otherwise the SSP Parties might assert against the CONTROL BREAK Parties based
on any claim by the Federal Aviation Administration or its agents,
representatives, or assignees (collectively, the "FAA") against the SSP Parties
related to any product or service the CONTROL BREAK Parties sold to the FAA
through the SSP Parties.
(b) RELEASE BY CONTROL BREAK. Except for the obligations
imposed upon CONTROL BREAK pursuant to the terms of this Agreement, and for the
rights reserved by CONTROL BREAK by this Agreement, the CONTROL BREAK Parties,
for themselves and for their predecessors, successors, assigns, affiliates,
representatives, agents, principals, employees, parent corporations or entities,
subsidiary corporations or entities, attorneys, accountants, shareholders,
directors, officers and each of them, do hereby absolutely, fully and forever,
release, relieve, waive, relinquish and discharge the SSP Parties, and their
predecessors, successors, assigns, affiliates, representatives, agents,
principals, employees, parent corporations or entities, subsidiary corporations
or entities (including but not limited to Pulsar Data Systems, Inc. ),
attorneys, accountants, shareholders, directors and officers (including but not
limited to Xxxxxx Xxxxxxx, Xxxx Xxxx, Xxxxxxx X. Xxxxx, and Xxxxxx Xxxxxx), and
each of them, of and from such manner of actions, causes of action, suits,
debts, deficiencies, liabilities, demands, claims, obligations, costs, expenses,
sums of money, controversies, damages, accounts, reckonings, security interests
and liens of every kind or nature whatsoever, whether known or unknown,
suspected or unsuspected, which relate to, or arise out of any matter, fact or
transaction which arose prior to the date of this Agreement, including, without
limitation, any claims arising out of or related to the Action.
5. SCOPE OF RELEASES; ACCORD AND SATISFACTION. The Parties acknowledge
the fact that it is the intention of each Party hereto that, upon the execution
of this Agreement, this Agreement shall be effective as a full and final accord
and satisfaction and settlement of and as a bar to each such manner of action,
cause of action, suit, debt, deficiency, liability, demand, claim, obligation,
cost, expense, sum of money, controversy, damage, account, reckoning,
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security interest and lien of every kind or nature whatsoever, heretofore
referred to and released, which any of the SSP Parties, on one hand, and any of
the CONTROL BREAK Parties, on the other hand, has had, has, or may have against
each other within the scope of the released matters, including but not limited
to the Promissory Notes. In connection with such waiver and relinquishment, each
Party acknowledges that it is aware that it or its attorneys may hereafter
discover facts different from or in addition to the facts which it or its
attorneys now know or believe to be true with respect to the subject matters of
this Agreement, but that it is its intention hereby to fully, finally,
absolutely and forever settle any and all claims which do now exist, may exist
or heretofore have existed among the SSP Parties, on one hand, and the CONTROL
BREAK Parties, on the other hand, in accordance with the terms of this Agreement
and that, in furtherance of such intention, the releases herein given shall be
and shall remain in effect for all time as full and complete general releases
notwithstanding the discovery of any such different or additional facts.
6. NO RESCISSION OF RELEASES. As a part of the foregoing releases, each
Party acknowledges that it understands and accepts the risk that the facts with
respect to which this Agreement is entered into may be different from the facts
now known or believed by it to be true. The releases provided by this Agreement
shall remain in all respects effective and shall not be subject to termination
or rescission by virtue of any such differences in fact.
7. COVENANTS NOT TO XXX.
(a) The Parties hereby covenant and agree not to commence
against each other any action or proceeding of any nature whatsoever with
respect to any of the claims hereby released. The Parties hereby further
covenant and agree not to join in or to participate in any action or proceeding
based upon, arising out of or relating to the claims hereby released, unless
such participation is compelled by order of a court of competent jurisdiction.
(b) The Parties hereby covenant and agree not to take any
acts inconsistent with the intent and purposes of the releases provided by this
Agreement.
8. NO ASSIGNMENT OF RELEASED CLAIMS. Each Party represents and warrants
to the other Party that it has not assigned or transferred, and will not assign
or transfer, to any person or entity any of the claims hereby released.
9. NO ADMISSION OF WRONGDOING. Each Party acknowledges and agrees that
this Agreement contemplates and provides for the resolution of disputed claims,
and that no Party makes any admission of fact or of any wrongdoing. By this
Agreement, no Party admits any liability to the other Party, except as set forth
expressly to the contrary herein.
10. MISCELLANEOUS.
(a) Independent Advice. Each Party acknowledges that it has
consulted with and has relied upon its own legal counsel as it deemed necessary
in connection with the negotiation, execution and delivery of this Agreement.
(b) Successors and Assigns. This Agreement shall obligate, be
binding upon, extend to, and inure to the benefit of each of the successors,
assigns, grantees, and transferees of
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each of the Parties, who may assume any and all of the above-described
capacities subsequent to the execution of this Agreement.
(c) Severability. Should one or more provisions of this
Agreement be determined to be illegal or unenforceable, those provisions shall
be interpreted as severable and severed from this Agreement and all other
provisions contained in this Agreement shall remain in full force and effect,
provided that the agreement which remains carries out the intent of the original
Agreement.
(d) Attorneys' Fees. In the event that a Party files an
action or proceeding to enforce or interpret or for breach of this Agreement,
the prevailing Party in that action or proceeding shall be entitled to recover
its costs and reasonable attorneys' fees.
(e) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement. This Agreement may be
executed and delivered by facsimile and, when so executed and delivered, shall
be binding and enforceable.
(f) Further Assurances. Each Party agrees to and shall
cooperate fully with the other Party in the performance of this Agreement, and
shall execute such additional agreements, documents or instruments as may
reasonably be required to carry out the intent of the Parties with respect to
this Agreement.
(g) Entire Agreement; Terms Read and Understood. This
Agreement constitutes the complete, final and exclusive embodiment of the
Parties' agreement with respect to the subject matters hereof, and supersedes
all prior and contemporaneous oral and written agreements, correspondence and
discussions between the Parties with respect to the subject matter hereof. The
terms of this Agreement are contractual and not mere recitals. Each Party
certifies that it has read all of the foregoing Agreement, and fully understands
all of the terms hereof. Each Party acknowledges and represents that it enters
into this Agreement of its own will and not due to any pressure or duress from
the other Party. This Agreement is executed without reliance upon any promise,
commitment or representation by a Party other than those expressly contained in
this Agreement. Except as expressly provided in paragraph 10(c), each Party
agrees that each provision of this Agreement is interdependent with, and made in
consideration of, each other provision hereof. This Agreement shall not be
amended or modified except by an instrument in writing signed by all Parties.
(h) Captions. Any captions to the paragraphs of this
Agreement are solely for the convenience of the Parties, are not a part of this
Agreement, and shall not be used for the interpretation or determination of the
validity of this Agreement or any provisions thereof.
(i) Interpretation. Wherever in this Agreement the context so
requires, reference to the neuter, masculine or feminine shall be deemed to
include each of the other, and reference to either the singular or the plural
shall be deemed to include the other.
(j) Representative Capacity. Each person whose signature is
affixed to this Agreement in a representative capacity represents and warrants
that he/she is fully authorized to
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execute this Agreement on behalf of, and to bind, the Party on whose behalf
his/her signature is affixed.
(k) No Known Claims by the FAA. The SSP Parties represent and
warrant, without any duty to investigate, that as of the date of this Agreement,
they are not aware of any claim that the FAA asserts against the SSP Parties
related to any product or service the CONTROL BREAK parties sold to the FAA
through the SSP Parties.
11. Expenses. Except as otherwise provided expressly to the contrary in
this Agreement, each Party shall bear all of the fees and expenses (including,
without limitation, legal fees and litigation costs) incurred by it arising out
of or relating to the Action and the negotiation and execution of this Agreement
IN WITNESS WHEREOF, the undersigned have executed this Agreement on the
dates set forth below.
Dated: September 17, 2003 SSP SOLUTIONS, INC., a Delaware
Corporation
By: /s/ XXXXXX X. XXXXXX
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Its: CFO
Dated: September 17, 2003 CONTROL BREAK INTERNATIONAL. INC.,
a Florida corporation
By: /s/ XXX XXXXX
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Its: President
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APPROVED AS TO FORM:
Dated: September 17, 2003 XXXXX & XXXXXX, LLP
Xxxxxxx X. Xxxxxx
By: /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
Attorneys for SSP SOLUTIONS, INC., a
Delaware Corporation
Dated: September 17, 2003 XXXXXX X. XXXXXXX, P.A.
By: /s/ XXXXXX X. XXXXXXX, P.A.
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Xxxxxx X. Xxxxxxx, P.A.
Attorney for CONTROL BREAK
INTERNATIONAL, INC., a Florida
corporation
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