Exhibit 10.7
MUTUAL RELEASE
This Mutual Release is entered into by and between XXXX AGRICULTURAL
PRODUCTS CO., an Ohio corporation, with its principal place of business at 0000
Xxxxxx Xxxx 00, Xx. Xxxxxx, Xxxx 00000 ("Xxxx"), FERTILIZER CORPORATION OF
AMERICA, a Florida corporation with its principal place of business at Miami,
Florida ("FCA") and XXXXX XXXXXXXXXXXXXX, an individual residing at Miami,
Florida ("Xxxxxxxxxxxxxx").
Background
A. On or about September 1, 1997, Xxxx purchased substantially all of the
assets of the Specialty Products Division of FCA. Pursuant to that the
Asset Purchase Agreement, a copy of which is attached hereto as Exhibit A,
FCA agreed not to compete with Xxxx.
B. In connection with the asset purchase, Xxxx and Xxxxxxxxxxxxxx entered
into a Confidentiality and Noncompetition Agreement dated September 1,
1997, pursuant to which, among other things, Xxxxxxxxxxxxxx agreed not to
compete with the business of Xxxx and Xxxx agreed to pay Xxxxxxxxxxxxxx,
as partial consideration for the noncompetition obligations imposed upon
him, common shares of Xxxx pursuant to a gross margin formula set forth in
the agreement, a copy of which is attached hereto as Exhibit B.
C. This Mutual Release is executed by the parties voluntarily and is intended
to effect the extinguishment of FCA's obligations under Section 5.16 of
the Asset Purchase Agreement, the extinguishment of Chistopherson's
obligations under Section 1 of the Confidentiality and Noncompetition
Agreement. Xxxx' obligation under Section 7.7 of the Asset Purchase
Agreement regarding Xxxx' Board of Directors, and Xxxx' obligation under
Section 3(b) of the Confidentiality and Noncompetition Agreement to pay
additional consideration for the noncompetition obligation imposed on
Xxxxxxxxxxxxxx.
Agreement
For good and valuable consideration, the receipt and sufficiency is hereby
acknowledged by all parties, the parties agree as follows:
1. Xxxx hereby releases and forever discharges FCA and Xxxxxxxxxxxxxx from
any and all claims, demands, actions, causes of action, judgments and
executions, which Xxxx ever had, or now has, or may have against FCA or
Xxxxxxxxxxxxxx for violation of the noncompetition obligations imposed
upon them in, respectively, Section 5.16 of the Asset Purchase Agreement
and Section 1 of the Confidentiality and Noncompetition Agreement.
Xxxxxxxxxxxxxx is not released from the confidentiality obligation
provided Xxxxxxxxxxxxxx may solicit customers of the Specialty Products
Division (that were former customers of FCA).
2. Xxxxxxxxxxxxxx hereby releases and forever discharges Xxxx and its
officers, directors, shareholders, employees, affiliates, subsidiaries,
legal representatives, administrators, successors and assigns, from any
and all claims, demands, actions, causes of action, judgments and
executions, which he ever had or now has, or may have, against them, for
payment or nonpayment of the additional consideration for the
Noncompetition obligations imposed upon Xxxxxxxxxxxxxx in Section 3(b) of
the Confidentiality and Noncompetition Agreement between Xxxx and
Xxxxxxxxxxxxxx dated September 1, 1997. It is understood that all payments
made through the date of this agreement are to be retained by
Xxxxxxxxxxxxxx or FCA as the case may be.
3. FCA hereby releases and forever discharges Xxxx and its officers,
directors, shareholders, employees, affiliates, subsidiaries, legal
representatives, administrators, successors and assigns, from any and all
claims, demands, actions, causes of action, judgments and executions,
which he ever had or now has, or may have, against them, for the
obligations regarding the Board of Directors imposed on Xxxx in Section
7.7 of the Asset Purchase Agreement. Xxxx agrees that it will no longer
use the FCA name and that all intellectual rights or intangible rights
revert or will be assigned to FCA including all EPA registrations, or if
lapsed, Xxxx will cooperate with FCA in reinstating those registrations.
4. The parties agree that their covenants and promises in this Mutual Release
are made only in consideration of the covenants and promises explicitly
made hereunder by the parties, and not in consideration of any other
matter. The parties agree that the foregoing constitutes the entire
agreement between them and that there exist no other agreements, oral or
written, between them relating to any matters covered by this agreement.
The parties agree that the invalidity of any provision or provisions of
this Mutual Release shall not effect the other provisions, and this Mutual
Release shall be construed in all respects as if any invalid provisions
were omitted. The parties agree that the laws of the State of Ohio will
govern the resolution of any dispute arising under this Mutual Release,
and agree to submit themselves to the jurisdiction of the courts of the
State of Ohio, with venue in Xxxxxx County, for the resolution of any such
dispute.
IN WITNESS WHEREOF, the parties have executed this Mutual Release on the
date set forth below their respective signature lines.
XXXX AGRICULTURAL PRODUCTS CO. FERTILIZER CORPORATION OF AMERICA
By: /s/ Xxxxxx X. Xxxx By: /s/ Xxxxx X. Xxxxxxxxxxxxxx
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Xxxxxx X. Xxxx Xxxxx X. Xxxxxxxxxxxxxx, President
Date: October 18, 1999 Date: October 13, 1999
By: /s/ Xxxxx X. Xxxxxxxxxxxxxx
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Xxxxx X. Xxxxxxxxxxxxxx, Individually
Date: October 13, 1999
