Exhibit 10.31
SETTLEMENT AGREEMENT AND RELEASE
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This Settlement Agreement and Release ("Agreement") is made on this 22nd
day of September 1999, by and between THE VECHERY FAMILY TRUST, U/D/T 10/9/84,
individually, and derivatively on behalf of the Sevcor International, Inc.,
Xxxxxx Xxxxxxx and Xxxxx Xxxxxxx as Trustees and individually collectively
referred to as ("Vechery") and XXXXXXX X. SEVEN, individually and as Corporate
Officer and Director of SKYWAY HOME, INC. a corporation and SKYWAY HOME, INC. a
corporation, collectively referred to as ("Seven").
RECITALS
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WHEREAS, On December 12, 1997, the Vechery Trust, filed in the Los Angeles
Xxxxxxxx Xxxxx, Xxxx Xx XXx00000, titled THE VECHERY FAMILY TRUST U/D/T 10/9/
84, individually, and derivatively on behalf of the Sevcor International, Inc.,
Plaintiffs vs. XXXXXXX X. SEVEN, XXXX XXXX, SKYWAY HOME, INC. a corporation;
Does 1-50, inclusive, (hereinafter the "action".)
WHEREAS , it is the intention of the parties hereto to settle all
differences among themselves arising out of or in any way concerning, connected,
with, or pertaining to the facts, circumstances, events and purported causes of
action alleged or which could be alleged arising out of the Action.
NOW, THEREFORE, in consideration of the above recitals and the covenants
and agreements herein contained, and other good and valuable consideration, the
parties hereto do hereby agree as follows:
TERMS AND CONDITIONS
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1. PAYMENT TO VECHERY. In the event Seven participates in or continues
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or establishes a new repatriation, business (Repatriation Business) then Seven
or the Repatriation Business will pay to Vechery a royalty in the amount of one
percent (1%) of all future gross sales of repatriation products and services
(Repatriation Sales) for a period of seven (7) years commencing with the date of
first Repatriation Sale (Royalty Period). The royalty will become due and
payable as follows:
a) Payment of $5,000 on the earlier of May 22, 2000 or fifteen (15) days
after starting a Repatriation
Business or entering a financing agreement to start a Repatriation Business.
b) Payment of $45,000 fifteen (15) days after receipt of investment funds
for the starting a Repatriation Business or entering a financing agreement to
start a Repatriation Business.
c) Beginning when cumulative Repatriation Sales reach $5 million and
continuing for the remainder of the Royalty Period, payment of 1% of
Repatriation Sales on a monthly basis by the 30th day of the following month.
[deleted text]
2. WRITTEN NOTE TO VECHERY:
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a) COMMENCEMENT OF REPATRIATION BUSINESS: Seven or the Repatriation
Business will give Vechery written notice (within five days via certified mail)
upon starting a Repatriation Business or entering a financing agreement to start
a Repatriation Business.
b) COMMENCEMENT OF REPATRIATION SALES: Seven or the Repatriation Business
will give Vachery written notice (within five days via certified mail) upon the
first day of Repatriation Sales.
3. PAYMENT OF PAYROLL TAXES: Seven will pay all outstanding payroll taxes
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and all trust fund liabilities that are due and owing as of March 1, 1997, plus
any penalties and interest accruing thereon by Sevcor corporation.
4. FILING OF TAX RETURNS: Seven will prepare and file all Sevcor payroll
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tax returns that are due through the close of its operations including a final
return. Vechery has already released all Sevcor's business records to Seven.
Vechery agrees to cooperate with Seven concerning the interpretation of business
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records upon Seven's request.
5. TRANSFER OF SEVCOR'S BUSINESS RECORDS: Vechery will transfer all
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business records and proprietary information to Seven immediately upon execution
of this agreement with delivery to take place on or before October 22, 1999.
6. AUDIT: If Vechery desires an audit, once per year, Vechery will pay for
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the audit. If the audit results are ten percent (10%) or more of under reported
gross sales, then Seven or the Repatriation Business will pay for the audit.
The audit will be conducted by a mutually selected CPA. In connection with any
such audit, Seven and the Repatriation Business will disclose the names and
addresses of all investors and lenders and Vechery will be entitled to contact
any of the investors and lenders in regard to their involvement with the
Repatriation Business.
7. Representations and Warranties:
7.1 BY SEVEN: Seven warrants and represents the following which are
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material representations that Vechery is relying on in entering into this
settlement agreement.
a) That as of September 22, 1999, Seven has no [deleted text][handwritten:]
verbal or written agreement with principal investors [deleted text]for the
Repatriation Business. Vechery and Seven acknowledge that Seven was in contact
with potential investors prior to September 22, 1999. [deleted text] [initials]
b) That. Seven will become officer, director and sole shareholder of the
Sevcor Corporation beginning on the date of execution of this agreement and will
oversee the maintenance or winding down of that corporation;
c) That Seven will cause Sevcor corporation to indemnify and hold harmless
Vechery against any lawsuits filed after September 22, 1999 regardless of when
the alleged harm occurred.
7.2 BY VECHERY: Vechery represents and warrants that Vacery owns 51% of
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Sevcor's stock and has the right to cause the remaining 49% of Sevcor stock to
be retired. Vechery transfers its 51% share of Sevcor stock and its right to
cause the remaining 49% to be retired to Seven for the purchase price of $50.00
which is acknowledged as paid.
8. TIME TO CURE. In the event Seven or the Repatriation Business should
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fail to pay any of the payments due pursuant to this agreement, Vechery shall
notify Seven in writing of said default, and Seven shall have the period of
fifteen (15) days from the date of receipt of said notice (the "Cure Period")
within which to make all such payments validly claimed by Vechery to be past
due. In the event Seven or the Repatriation Business should fail to make
payment within the Cure Period of any monies validly claimed by Vechery to then
be past due, Vechery shall have the right at his option, to declare this
agreement in breach.
9. RELEASES AND DISMISSALS
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9.1 RELEASES BY VECHERY. Vechery and any predecessor in
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interest, successor in interest present or past, hereby releases, acquits, and
forever discharges Seven, its predecessors in interest, successors in interest,
and his present and past partners, employees, representatives, agents and
attorneys from any and all manner of action, claims, demands, costs, damages,
liabilities, losses, obligations, expenses, and compensation of any nature,
whatsoever, in law or in equity, including any claims for punitive or exemplary
damages, which arise out of, concern, or relate, amount other claims or
potential claims, to (a) any of the claims asserted in the Action by Vechery
against Seven, including, all causes of action plead in the complaint, without
limitation, claims for attorneys fess, prejudgement interest and (b) any other
claims whatsoever, from the beginning of time up to and including the time of
last execution hereof, whether or nor known, suspected or claimed.
9.2. RELEASE BY SEVEN. Seven and any predecessor in interest, successor in:
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interest, present or past, hereby release, acquits, and forever discharges
Vechery, his predecessors in interest, sucessors interest and his present and
past partners, employees, representatives, agents, Xxxx Xxxxx, Xxxxx Xxxxx, and
attorneys from any and all manner of actions, causes of action, claims, demands,
costs, damages, liabilities, losses, obligations, expenses, and compensation of
any nature whatsoever, in law or in equity, including any claims for punitive or
exemplary damages, which arise out of concern, or relate, among other claims or
potential claims, to any other claims whatsoever, from the beginning of time up
to and including the time of last execution hereof, whether or not known,
suspected, or claimed.
9.3 WAIVER OF UNKNOWN CLAIMS. It is further agreed,
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covenanted, represented, and warranted that the parties hereto intend that their
releases herein shall, to the extent referenced in paragraphs 9.1 and 9.2
hereof, include any and all such claims which Vechery and Seven may have against
one another, and that all rights and benefits conferred upon them by the
provisions of section 1542 of the Civil Code of California, or any other statues
or decisional authorities to the same effect, ar e to said extend hereby
expressly waived.
Section 1542 of the Civil Code reads as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
In waiving the provision of section 1542 of the Civil Code, Vechery (with
respect to paragraph 9.2 hereof) acknowledge that they may hereafter discover
facts in addition to or different from those which they now believe to be true
with respect to the subject matter of disputes and other matters herein
released, but agree that they have taken that possibility into account in
determining the amount of consideration to be given under this Agreement and
that the release herein given shall be and remain in effect as full and complete
general release notwithstanding the discovery or existence of any such
additional or different facts, of which Vechery and Seven expressly assume the
risk.
9.4 INDEMNIFICATION. Vechery (with respect to paragraphs 9.1 and 9.3
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hereof) and Seven (with respect to paragraphs 9.2 and 9.3 hereof) agree,
covenant, represent, and warrant that they shall indemnify, defend, and hold
harmless one another from any and all claims, demands, losses, costs, expenses,
obligations, liabilities, damages, recoveries, and deficiencies (including,
without limitation, reasonable attorneys' fees), asserted in violation of or
contrary to the provisions of the release herein granted.
9.5 BEAR OWN COSTS. The parties hereto bear all their own costs, expenses,
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and attorneys' fees incurred in connection with the Action, or preliminary to
the filing of the Compliant, and in the negotiation and drafting of this
Agreement.
9.6 DISMISSAL OF CLAIMS. Vechery shall, within 30 days of execution of this
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agreement by all the parties and their attorneys of record, promptly file with
the court, and serve a conformed copy upon counsel for Seven, a request for
dismissal with prejudice of the entirety of the Action.
10. NONADMISSION OF LIABILITY. It is understood and agreed that this
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Agreement constitutes the compromise of disputed claims, and is made solely for
the purpose of allowing the continuing and anticipate relationships between the
parties to proceed without the interferences resulting from the pendency of the
Action, and to prevent further involvement in protracted litigation based upon
the disputed claims, and that neither this Agreement nor any consideration given
hereunder, concurrently herewith, or pursuant hereto is to be advocated or
construed as an admission of any liability on the part of any of the parties
hereto.
11. NONASSIGNMENT OF CLAIMS; OTHER ACTIONS. The parties hereto agree,
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covenant, represent, and warrant that they (a) are the sole and lawful owners of
all rights, title, and interest in and to every claim or matter hereby released,
(b) have not heretofore or transfer, to any person or entity, any claim or other
matter herein released, and are unaware of any other pending legal actions or
proceedings against one another, other than as asserted in the Action. Any
party in breach of this paragraph 11 shall indemnify, defend, and, hold harmless
the other party from any and all claims arising out of or relating to any
assignment or transfer any purported or attempted assignment or transfer
contrary to the terms of this paragraph 11.
12. PLACE OF PAYMENT; NOTICES. ALL payments due Vechery hereunder shall be
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made payable to THE VECHERY FAMILY TRUST, U/D/T 10/9/84 and all notices,
demands, and other communications between the parties hereunder shall be in
writing and shall be effected either by personal delivery, certified mail, or
registered mail (return receipt requested), addressed as follows, or to such
other address or addressee as of the other party has given notice in accordance
herewith:
If to Vechery:
Xxxxxx Xxxxxxx
Trustee
for The Vechery Family Trust
c/o Key Distributors, Inc.
00000 Xxxx Xxxxx Xxxxxxx
Xxxxxxxxx, XX 00000-0000
with a copy to:
Xxxxx Xxxxxxx
Attorney at law
0000 Xxxxxxx Xxxx Xxxx,
Xxxxx 000
Xxx Xxxxxxx, XX 00000
If to Seven:
Xxxxxxx X. Sevne
0000 Xxxxxxx
#000
Xxxxx Xxxx, XX 00000
with a copy to:
Xxxxxxx Xxxxxxx
Xxxxxxx and Libo
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxx Xxxxx, XX 00000-0000
Via facsimile 000-000-0000
Notices personally delivered shall be deemed communicated as of the data of
actual receipt, and mailed notices shall be deemed communicated as of two (2)
business days after mailing.
13. ENTIRE AGREEMENT. The parties hereto declare, warrant, and represent
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that no promise, statement, representation, inducement, or agreement not herein
expressed is relied upon or made the basis for entering into this Agreement or
agreeing to any of the terms hereof, that this document hereto, embodies and
sets forth the entire agreement and understanding between them relating to the
subject matter hereof, and that this document merges and supersedes all prior
discussions, agreements, understandings, representations, conditions,
warranties, covenants, and all other communications between them on or relating
said subject matter .
14. CONFIDENTIALITY: This agreement is strictly confidential. The terms
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and conditions of this agreement may not be disclosed by Seven to any third
parties without the written consent of Vechery, except Seven will be permitted
to disclose the terms of this agreement to potential bonafide investors in the
Repatriaiton Business that Seven may participate with in the future. Once Seven
has reasonably determined that a party is a bonafide potential investor
[handwritten:] bankers, employees and agents in the Repatriation Business and
wishes to disclose the terms and conditions of this agreement, Seven shall
[deleted text] provide written notice to Vechery (via certified mail within five
days) of the name, address and telephone number of such party. [initials]
Vechery agrees not to contact any of these persons unless there is a breach of
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this agreement by Seven.
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15. GENERAL PROVISIONS.
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15.1 PARTIES IN INTEREST. Except as set forth herein, nothing,
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nothing in this Agreement confers or is intended to confer, expressly or
impliedly, on any person other than the parties hereto and their successors and
assigns any right or remedy under or pursuant to this Agreement, nor is anything
in this Agreement intended to relieve or discharge the obligation or liability
of any third party to any party to this Agreement, nor shall any provision
hereof provide any third party any right of subrogation or action over or
against any party hereto.
15.2. AMENDMENTS. Any amendment, modification, addendum, or
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revision of this Agreement shall be valid only if in writing and signed by the
party(s) to be bound, in which event there need be no legal consideration
therefor.
15.3 RECITALS; Each recital hereof are material parts of this
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Agreement, are incorporated herein, and are material inducements to the parties
entering into this Agreement.
15.4 SURVIVABILITY. Except as otherwise provided herein, the
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warranties provided herein shall survive the execution thereof, the Closing, and
performance hereunder.
15.5 CAPTIONS. The paragraph titles or captions used in this
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Agreement are inserted only as and intended solely for the convenience of
reference, and shall in no manner modify, expand, limit, construe, describe the
scope of
or intent, or in any other way affect the terms or conditions of this Agreement.
15.6 REFERENCE TO PARTIES AS SINGULAR. Where any party hereto is
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referred to in the singular, whether by noun or pronoun, the singular form shall
be construed to include the plural, so as to apply to any or all such parties.
15.7 NO STRICT CONSTRUCTION. The language of this Agreement shall
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be construed as a whole, according to its fair meaning and intendment, and not
strictly for or against any party hereto, regardless of who drafted or was
principally responsible for drafting the Agreement or any specific term or
condition hereof. This Agreement shall be deemed to have been drafted by all
parties hereto, and no party hereto shall urge otherwise.
15.8 SUCCESSORS AND ASSIGNS. This Agreement and the rights and
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obligations hereunder, shall be binding upon and inure, jointly and severally,
to the benefit of the parties hereto and their respective successors and
assigns.
15.9 AUTHORITY. The persons executing this Agreement on behalf of
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the parties hereto represent and warrant that they have the full authority to do
so, and that they have been expressly authorized to bind their respective
companies, principals, or employers to all of the terms hereof.
15.10 GOVERNING LAW. This Agreement and all rights and
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obligations hereunder, including matters of construction, validity, and
performance, shall be governed by and construed in accordance with the laws of
the State of California, with venue in Los Angeles County.
15.11 COUNTERPARTS. This Agreement may be executed by fax in one
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or more counterparts, each of which shall constitute one and the same instrument
and be binding and enforceable as if all parties had executed the same hereof.
15.15 EXECUTION KNOWING AND VOLUNTARY. Each party hereto
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acknowledges and represents that he (a) has fully and carefully read this
Agreement prior to execution, (b) has been, or has had the opportunity to be,
fully apprized by his attorneys of the legal effect and meaning of this document
and all terms and conditions hereof, (C) has had the opportunity to make
whatever investigation or inquiry he deemed necessary or appropriate in
connection with the subject matter of this Agreement (d) has been afforded the
opportunity to negotiate as to any and all terms hereof, and (e) is executing
this agreement as a free and voluntary act.
IN WITNESS WHEREOF, this Agreement is made in, the County of Los Angeles,
State of California, and is effective as of the date first written above.
THE VECHERY FAMILY TRUST,
U/D/T 10/9/84, individually,
and derivatively on behalf
of the Sevcor International, Inc.,
Xxxxxx Xxxxxxx as Trustee and
individually.
By: /s/ Xxxxxx Xxxxxxx
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XXXXXX XXXXXXX
THE XXXXXXX FAMILY TRUST,
U/D/T 10/9/84. individually,
and derivatively on behalf
of the Sevcor International, Inc.,
Xxxxx Xxxxxxx as Trustee and
individually.
By: /s/ Xxxxx X. Xxxxxxx
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XXXXX XXXXXXX
Continued on next page
EXECUTION KNOWING AND VOLUNTARY. Each party hereto acknowledges and represents
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that he (a) has fully and carefully read this Agreement prior to execution, (b)
has been, or has had the opportunity to be, fully apprized be his attorneys of
the legal effect and meaning of this document and all terms and conditions
hereof, (C) has had the opportunity to make whatever investigation or inquiry he
deemed necessary or appropriate in connection with the subject matter of this
Agreement (d) has been afforded the opportunity to negotiate as to any and all
terms hereof, and (e) is executing this Agreement as a free and voluntary act.
IN WITNESS WHEREOF, this Agreement is made in, the County of Los Angeles,
State of California, and is effective as of the date first written above
XXXXXXX X. SEVEN, individually
and as Corporate Officer and Director
of SKYWAY HOME, INC. a corporation
By: /s/ Xxxxxxx X. Seven
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XXXXXXX X. SEVEN
APPROVED AS TO FORM AND CONTENT:
Xxxxx Xxxxxxx, Esq.
By: /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx, Esq.
Attorney for Plaintiffs
THE VECHERY FAMILY TRUST,
U/D/T 10/9/84, individually,
and derivatively on behalf
of the Sevcor International, Inc.,
Xxxxxx Xxxxxxx and Xxxxx Xxxxxxx
as Trustees and individually
By: /s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx, Esq.
Attorney for Defendants
XXXXXXX X. SEVEN, individually
and as Corporate Officer and
Director of SKYWAY HOME, INC. a corporation
[Addendum] [Handwritten:]
1D In the event repatriation business is sold, transferred, assigned to
a third person, Seven will pay in cash or stock (if Seven is paid stock in
exchange for the sale).
If in the first year from 9/22/99, the basis Seven will pay 25% of the
total amount paid to Seven.
If in the second and third year after 9/22/99 then Seven will pay Vechery
15%.
If Seven transferred any interest of ownership to his heirs, relatives of
third parties it will be included in Seven's stake upon sale.
If Seven make this payment then, he purchases outright Vechery's 1%
Royalty.
[Signatures]
