EXHIBIT B
Acola Corp.
Settlement Agreement
ACOLA CORP.
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT (the "Agreement") is made and entered into
as of October 1, 2002, by and among ACOLA CORP., a Delaware corporation (the
"Company") and Xxxxx X. Xxxxxxxxx ("Xxxxxxxxx"), Xxxxxx X. Xxxxxx ("Xxxxxx"),
Xxxxxxx X. Xxxxxxxx ("Xxxxxxxx"), Xxxxx Xxxxxxxxx ("Xxxxxxxxx"), Xxxxxx X.
Xxxxxxx ("Xxxxxxx") and Xxxxxxx X. Xxxxx ("Xxxxx") (Crosswell, Dillon,
Manteris, Seligmann, Skipper and Xxxxx sometimes referred to as the "DMS
Group"), Xxxxxx X. Xxxxxx ("Xxxxxx") and Global Investment Alliance Inc., a
New York corporation ("Global").
RECITALS
WHEREAS, various disputes have arisen among the parties to this
Agreement concerning their respective dealings with, and participation in the
affairs of, the Company; and
WHEREAS, the parties to this Agreement desire to settle any and all
disputes among them by mutual agreement in accordance with this Agreement and
without resorting to litigation.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises, representations, warranties, and covenants hereinafter set
forth and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1 Transfer and Delivery
1.1 Transfer and Delivery of Shares. The DMS Group agrees to transfer
to Global at the Closing at least 28,523,400 shares of the
Company's Class A Common Stock, par value of $0.001 per share
("Common Stock") (the shares to be delivered pursuant to this
Section 1.1 being referred to as the "DMS Shares") and 2,000,000
shares, constituting 100%, of the Company's Class B Common Stock,
par value of $0.001 per share (the "Supervoting Stock"). The DMS
Shares and the Supervoting Stock are referred to as the
"Settlement Shares". The Settlement Shares shall be validly
issued, fully paid and non-assessable.
2 Closing and Delivery
2.1 Closing. The closing under this Agreement (the "Closing") shall
take place at 10:00 AM on October 16, 2002, at the offices of
Jamail & Kolius, 000 Xxxxxx Xx # 0000, Xxxxxxx, Xxxxx 00000, or at
such other time or place as the parties may mutually agree (such
date is hereinafter referred to as the "Closing Date").
2.2 Delivery. At the Closing, subject to the terms and conditions
hereof, (i) the DMS Group shall deliver to Global stock
certificates representing the Settlement Shares, as specified in
Section 1.1, fully executed for transfer to Global; (ii)
Crosswell, Dillon, Manteris, Seligmann, Skipper and Xxxxx shall
execute and deliver to the Company signed counterparts of the
Release and Indemnity Agreement in the form set forth as Exhibit I
hereto (the "Acola Release"); (iii) Crosswell, Dillon, Manteris,
Seligmann, Skipper, Xxxxx and the Company shall execute and
deliver to Xxxxxx signed counterparts of the Release and Indemnity
Agreement in the form set forth as Exhibit II hereto (the "DMS
Release"); and (iv) Xxxxxx shall execute and deliver to Crosswell,
Dillon, Manteris, Seligmann, Skipper, Xxxxx and the Company signed
counterparts of the Release and Indemnity Agreement in the form
set forth as Exhibit III hereto (the "Xxxxxx Release").
2.3 Election of Directors. Currently, Xxxxxx and Xxxxx are the only
directors and officers of the Company. They have unanimously
adopted a Board Resolution authorizing this Agreement. Effective
as of the conclusion of the Closing, the shareholders of the
Company shall have elected Xxxxxx and such others as may be
selected by him as the sole Directors of the Company and the
Company shall have complied with all Delaware laws and the
Securities Exchange Act of 1934 (the "Exchange Act") and the rules
and regulations promulgated thereunder in electing such Directors.
2.4 Cooperation With Global's Review. The Company and the DMS Group
agree to cooperate fully with Global's review of the Company's
operations and records. The Company hereby authorizes Xxxxxx and
Xxxxxxx to disclose all of its work papers and the Company's
financial statements to Global and its representatives and to
discuss these matters fully with Global and Xxxxxx, and agrees to
provide any necessary documentation to Xxxxxx and Xxxxxxx
confirming such authorization.
3. Representations And Warranties. The Company, Xxxxxx and Skipper each
jointly and severally hereby represents and warrants to Xxxxxx and
Global the following, both as of the date hereof and as of the Closing
Date:
3.1 Organization, Good Standing and Qualification. The Company is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware. The Company has all
requisite corporate power and authority to own and operate its
properties and assets, to execute and deliver this Agreement and
to carry out the provisions of this Agreement and to carry on its
business as presently conducted and as presently proposed to be
conducted. The Company is duly qualified and is authorized to do
business and is in good standing as a foreign corporation in all
jurisdictions in which the nature of its activities or its
properties (both owned and leased) makes such qualification
necessary, except for those jurisdictions in which failure to do
so would not have a material adverse effect on the Company or its
business.
3.2 Subsidiaries. At the date of the Closing, the Company will not own
or control any equity security or other interest of any other
corporation, limited partnership or other business entity other
than the 23,529 shares of Xxxxxx Pharmaceuticals, Ltd. owned by
the Company. In addition, the Company is not a participant in any
joint venture, partnership or similar arrangement.
3.3 Capitalization; Voting Rights.
(a) The authorized capital stock of the Company, immediately
prior to the Closing, consists of (i) One Hundred Million
(100,000,000) shares of Class A Common Stock, 34,805,065
shares of which are issued and outstanding, (ii) Two Million
(2,000,000) shares of Class B Common Stock, 2,000,000 of
which are issued and outstanding, and Five Million
(5,000,000) shares of Preferred Stock, none of which are
issued and outstanding. There are no other shares of
capital stock, options or other securities of the Company
outstanding.
(b) The DMS Shares being transferred to Global at the Closing
constitute 82% of the 34,805,065 shares outstanding. The
Settlement Shares are entitled to an aggregate of
228,523,400 votes, constituting 97% of the total shareholder
votes of the Company.
(c) There are no outstanding options, warrants, rights
(including conversion or preemptive rights and rights of
first refusal), preferred or other stock, stock purchase
agreements, subscription agreements, convertible debt
instruments, contracts or any other instruments or
securities of any kind which can be converted into or
exercised to obtain or which otherwise provide for the
grant, sale or issuance of any shares of capital stock of
the Company or other securities of the Company, and there
are no proxy or stockholder agreements.
(d) All issued and outstanding shares of the Company's Common
Stock (i) have been duly authorized and validly issued, and
are fully paid and nonassessable, and (ii) were issued in
compliance with all applicable state and federal laws
concerning the issuance of securities.
(e) No stock plan, stock purchase plan, stock option or other
agreement or understanding between the Company and any
holder of any equity securities or rights to purchase equity
securities provides for acceleration or other changes in the
vesting provisions or other terms of such agreement or
understanding as the result of any merger, consolidated sale
of stock or assets, change in control or any other
transaction(s) by the Company, including the transactions
contemplated in this Agreement.
(f) Attached as Schedule 3.3(f) is a true and complete list of
the names and addresses of all persons (other than Xxxxxx,
Xxxxxxxx and Xxxxxxx) to whom the Company issued shares
following the XxxxXxxxx.xxx, Ltd merger.
3.4 Authorization; Binding Obligations. All corporate action on the
part of the Company, its officers, directors and stockholders
necessary for the authorization of this Agreement and the
performance of all obligations of the Company hereunder at the
Closing has been taken, in accordance with the Company's
Certificate of Incorporation and By-Laws. This Agreement, when
executed and delivered, will be a valid and binding obligation of
the Company enforceable in accordance with its terms, except
(a) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws of general application
affecting enforcement of creditors' rights, and (b) general
principles of equity that restrict the availability of equitable
remedies. The transfer of the DMS Shares is not and will not be
subject to any preemptive rights or rights of first refusal that
have not been properly waived or complied with.
3.5 Financial Statements. The Company has made available to Global
(i) its unaudited consolidated balance sheets as of December 31,
2001 and as of March 31, 2002, its audited consolidated balance
sheet as of June 30, 2001, its unaudited consolidated statements
of operations for the three and six months ended December 31, 2001
and 2000 and for the three months ended March 31, 2002, its
unaudited consolidated statement of changes in stockholders'
equity (deficit) for the six months ended December 31, 2001 and
for the three months ended March 31, 2002, and its unaudited
consolidated statements of cash flows for the six months ended
December 31, 2001 and 2000 and for the three months ended March
31, 2002; and its audited consolidated balance sheet as of June
30, 2002, its audited consolidated statements of operations for
the twelve months ended June 30, 2002 and for the three months
ended June 30, 2002, its audited consolidated statement of changes
in stockholders' equity (deficit) for the twelve months ended June
30, 2002 and for the three months ended June 30, 2002, and its
audited consolidated statements of cash flows for the twelve
months ended June 30, 2002 and for the three months ended June 30,
2002 (collectively, the "Financial Statements"), copies of which
are attached as Schedule 3.5 hereto., and (ii) its Form 10-QSB
Reports (the "10-Q") for the three months ended December 31, 2001
and March 31, 2002, and its Form 10-KSB Report (the "10-K") for
the twelve months ended June 30, 2002, all of which were filed in
a timely manner with the Securities and Exchange Commission. The
Financial Statements, together with the notes thereto, have been
prepared in accordance with generally accepted accounting
principles applied on a consistent basis throughout the periods
indicated, except as disclosed therein, and present fairly the
financial condition and results of operations of the Company as of
and for the period ended June 30, 2002.
3.6 Xxxxxx Stock. The Company owns Twenty-three Thousand Five Hundred
Twenty-nine (23,529) shares of Common Stock of Xxxxxx
Pharmaceuticals. Ltd. (the "Xxxxxx Stock") and agrees not to
transfer or encumber the Xxxxxx Stock prior to the Closing.
3.7 Liabilities. Other than those disclosed in the Financial
Statements, the Company and its subsidiaries have incurred no
liabilities after June 30, 2001 and the Company, Xxxxxx and
Skipper are not aware of any contingent liabilities of the Company
or any of its subsidiaries other than those so disclosed.
3.8 Agreements; Action.
(a) There are no agreements, understandings or proposed
transactions between the Company and any of its officers,
directors, affiliates or any affiliate thereof.
(b) Except as set forth on Schedule 3.7 hereto, there are no
agreements, understandings, instruments, contracts, proposed
transactions, judgments, orders, writs or decrees to which
the Company is a party or, to the knowledge of the Company
by which it is bound
(c) Except as set forth on Schedule 3.7 hereto and except for
notes and accounts payable being released pursuant to this
Agreement, the Company has not (i) declared or paid any
dividends, or authorized or made any distribution upon or
with respect to any class or series of its capital stock,
(ii) incurred any indebtedness for money borrowed or any
other liabilities, (iii) made any loans or advances to any
person, or (iv) sold, exchanged or otherwise disposed of any
of its assets or rights.
3.9 Changes. Since March 31, 2002, there has not been, other than as
set forth in this Agreement:
(a) Any change in the assets, liabilities, financial condition,
prospects or operations of the Company from that reflected
in the Financial Statements;
(b) Any resignation or termination of any officer, key employee
or group of employees of the Company (other than Xxx
Xxxxxxx who resigned as Chairman and was replaced by Xxxxxxx
X. Xxxxx on or about April 10, 2002); and the Company has no
knowledge of the impending resignation or termination of
employment of any such officer, key employee or group of
employees;
(c) Any change in the contingent obligations of the Company by
way of guaranty, endorsement, indemnity, warranty or
otherwise;
(d) Any damage, destruction or loss, whether or not covered by
insurance, adversely affecting the properties, business or
prospects or financial condition of the Company;
(e) Any sale, assignment or transfer of any patents, trademarks,
copyrights, trade secrets or other intangible assets of the
Company; or
(g) Any change in any agreement to which the Company is a party
or by which it is bound which adversely affects the
business, assets, liabilities, financial condition,
operations or prospects of the Company.
3.10 Intellectual Property.
(a) The Company has not received any communications alleging
that the Company has violated or, by conducting its business
as presently proposed to be conducted, would violate, any of
the patents, trademarks, service marks, trade names,
copyrights or trade secrets or other proprietary rights of
any other person or entity, nor is the Company aware of any
basis therefor.
3.11 Compliance with Other Instruments. The Company is not in violation
or default of any term of its Certificate of Incorporation or
Bylaws, or, except as may ultimately be determined in connection
with litigation listed in Schedule 3.11 hereto, of any provision
of any mortgage, indenture, contract, agreement, instrument or
contract to which it is party or by which it is bound or of any
judgment, decree, order, or writ. The execution, delivery, and
performance of and compliance with this Agreement and the transfer
and sale of the Settlement Shares pursuant hereto will not, with
or without the passage of time or giving of notice, result in any
such material violation, or be in conflict with or constitute a
default under any such term, or result in the creation of any
mortgage, pledge, lien, encumbrance or charge upon any of the
properties or assets of the Company or the suspension, revocation,
impairment, forfeiture or nonrenewal of any permit, license,
authorization or approval applicable to the Company, its business
or operations or any of its assets or properties.
3.12 Litigation. Except as set forth on Schedule 3.11 hereto, there is
no action, suit, proceeding or investigation pending or, to the
knowledge of the Company, currently threatened against the
Company. The foregoing includes, without limitation, actions
pending or, to the knowledge of the Company, threatened or any
basis therefor known by the Company involving the prior employment
of any of the Company's employees, their use in connection with
the Company's business of any information or techniques allegedly
proprietary to any of their former employers, or their obligations
under any agreements with prior employers, and includes actions
and claims to which the Company believes it has valid defenses.
3.13 Tax Returns and Payments. Except as set forth on Schedule 3.12
hereto, the Company has filed all tax returns (federal, state and
local) required to be filed by it, and all taxes shown to be due
and payable on such returns, any assessments imposed, and to the
knowledge of the Company, all other taxes due and payable by the
Company on or before the Closing, have been paid or will be paid
prior to the time they become delinquent, and a copy of such tax
returns and evidence of all payments are available for Global's
review and will delivered with the corporate records at the
Closing. The Company has not been advised (a) that any of its
returns, federal, state or other, have been or are being audited
as of the date hereof, or (b) of any deficiency in assessment or
proposed judgment to its federal, state or other taxes. The
Company has no knowledge of any liability of any tax to be imposed
upon its properties or assets as of the date of this Agreement
that is not adequately provided for.
3.14 Compliance with Laws; Permits. To the best knowledge of the
Company and its officers and directors, the Company is not in
violation of any applicable statute, rule, regulation, order or
restriction of any domestic or foreign government or any
instrumentality or agency thereof in respect of the conduct of its
business or the ownership of its properties. No governmental
orders, permissions, consents, approvals or authorizations are
required to be obtained and no registrations or declarations are
required to be filed in connection with the execution and delivery
of this Agreement and the transfer of the Settlement Shares,
except such as has been duly and validly obtained or filed, or
with respect to any filings that must be made after the Closing,
as will be filed in a timely manner. The Company has all
franchises, permits, licenses and any similar authority necessary
for the conduct of its business as now being conducted by it.
3.15 Brokers' Fees. The Company (i) has not, directly or indirectly,
dealt with any broker or finder in connection with this
transaction and (ii) has not incurred or will not incur any
obligation for any broker's or finder's fee or commission in
connection with the transactions provided for in this Agreement.
3.16 Transfer Valid. The transfer of the Settlement Shares will be
exempt from the registration requirements of the Securities Act of
1933, as amended (the "Securities Act"), and will have been
registered or qualified (or are exempt from registration and
qualification) under the registration, permit or qualification
requirements of all applicable state securities laws. Neither the
Company nor any agent on its behalf has solicited or will solicit
any offers to sell or has offered to sell or will offer to sell
all or any part of the Settlement Shares or any other Common Stock
to any person or persons so as to bring the sale of such Shares by
the Company within the registration provisions of the Securities
Act or any state securities laws.
3.17 SEC Filings. The Company has filed all required reports (including
the Company's Report on Form 10-KSB for the twelve months ended
June 30, 2002), schedules, forms, statements and other documents
required to be filed by it with the Securities and Exchange
Commission ("SEC") pursuant to the Exchange Act and the Securities
Act (collectively, including all exhibits thereto, the "SEC
Filings"). The SEC Filings, as of their respective dates (and, if
amended or superseded by a filing prior to the date of this
Agreement or the Closing Date, then on the date of such filing),
(i) did not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and
(ii) complied in all material respects with the Exchange Act and
the Securities Act, as the case may be, and the rules and
regulations thereunder. The Company will continue to file all
required SEC Filings until the Closing.
4 Closing Conditions and Deliveries. The obligations of Global to accept
the Settlement Shares and of Xxxxxx to execute and deliver the Xxxxxx
Release shall be subject to the following:
4.1 Representations And Warranties True; Performance of Obligations.
The representations and warranties made by the Company, Xxxxxx,
Xxxxx and Xxxxxxx in Section 3 hereof shall be true and correct as
of the Closing Date, and the Company shall have performed all
obligations and conditions herein required to be performed or
observed by it on or prior to the Closing.
4.2 Secretary's Certificate. Global shall have received from the
Company's Secretary, a certificate having attached thereto (i) the
Company's Certificate of Incorporation as in effect at the time of
the Closing, (ii) the Company's Bylaws as in effect at the time of
the Closing, (iii) resolutions approved by the Board of Directors
of the Company authorizing the transactions contemplated hereby,
and (iv) letters of resignation, effective at the conclusion of
the closing, as consultants, officers and directors, signed by
Dillon, Manteris, Skipper and Xxxxx.
4.3 Stock Certificates. The stock certificates representing the
Settlement Shares shall have been delivered to Global.
4.4 No Litigation. The President shall certify that, other than is set
forth in Schedule 3.11, there is no pending litigation against the
Company or, to the best of his knowledge, no litigation threatened
against the Company.
4.5 Liabilities. The President and Skipper shall certify that the
Company has no liabilities other than those set forth on the
Company's June 30, 2002, balance sheet as filed with the 10-K and
contingent liabilities set forth in notes thereto.
4.6 Registration Rights. At the Closing, the Company shall certify
that none of its security holders has any right to require the
Company to register any shares of Common Stock or any other
securities.
4.7 Records. The Company (with full cooperation of Dillon, Wirtz,
Manteris and Skipper) shall deliver to Global all records and
documents pertaining to the Company, including a complete list of
the Company's shareholders, all outstanding contracts, bank
account records, accounting records and work papers, tax returns,
SEC reports, accounts payable and pending claims against the
Company.
4.8 Form 10-KSB. On or prior to the Closing Date the Company shall
have filed its Form 10-KSB, including audited financial
statements, for the year ended June 30, 2002.
4.9 Xxxxx Release. The Company shall deliver a release, fully
executed by Xxxxxxx X. Xxxxx, of any and all claims against the
Company, including any and all claims under the Company's $14,500
Ninety-Day Promissory Note dated December 3, 2001 payable to
Xxxxxxx X. Xxxxx.
5 Indemnity. Xxxxxx and Skipper shall each, jointly and severally,
indemnify, save and hold harmless Xxxxxx, Global and the Company from
and against any and all damages incurred in connection with, arising out
of, resulting from or relating or incident to (1) any failure of Xxxxxx
or Skipper to comply with, or perform their obligations pursuant to, the
provisions of the Agreement and (2) without duplication, any breach or
inaccuracy of any representation or warranty of or by the Company,
Xxxxxx or Xxxxxxx.
6 Miscellaneous.
7.1 Governing Law. This Agreement shall be governed by, construed in
accordance with, and enforced under, the laws of the state of
Texas, without regard to the principles of conflicts of law of
such state.
7.2 Survival. The representations, warranties, covenants and
agreements made herein shall survive any investigation made by
Global and the Closing. All statements as to factual matters
contained in any certificate or other instrument delivered by or
on behalf of the Company pursuant hereto in connection with the
transactions contemplated hereby shall be deemed to be
representations and warranties by the Company hereunder solely as
of the date of such certificate or instrument.
7.3 Successors and Assigns. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and
be binding upon, the successors, assigns, heirs, executors and
administrators of the parties hereto and also shall inure to the
benefit of and be enforceable by each person who shall be a holder
of the Settlement Shares from time to time.
7.4 Entire Agreement. This Agreement, the exhibits and schedules
hereto, and the other documents delivered pursuant hereto
constitute the full and entire understanding and agreement between
the parties with regard to the subjects hereof and no party shall
be liable or bound to any other in any manner by any
representations, warranties, covenants and agreements except as
specifically set forth herein and therein.
7.5 Severability. In case any provision of the Agreement shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
7.6 Amendment and Waiver. This Agreement may be amended or modified
only upon the written consent of all parties.
The obligations of the Company and the rights of the holders of
the Settlement Shares under the Agreement may be waived only with
the written consent of Global.
7.7 Publicity. All press releases, announcements or other publicity
pertaining to the transactions contemplated hereby must be
approved by Global and the Company prior to release, provided that
such approvals may not be unreasonably withheld. Global and the
Company understand and agree that the Company will be required to
file copies of this Agreement with the SEC in connection with
filing a Form 8-K immediately after the execution of this
Agreement.
7.8 Delays or Omissions. It is agreed that no delay or omission to
exercise any right, power or remedy accruing to any party upon any
breach, default or noncompliance by another party under this
Agreement shall impair any such right, power or remedy, nor shall
it be construed to be a waiver of any such breach, default or
noncompliance, or any acquiescence therein, or of or in any
similar breach, default or noncompliance thereafter occurring. It
is further agreed that any waiver, permit, consent or approval of
any kind or character by any party of any breach, default or
noncompliance under this Agreement or any waiver on such party's
part of any provisions or conditions of the Agreement must be in
writing and shall be effective only to the extent specifically set
forth in such writing. All remedies, either under this Agreement,
by law, or otherwise afforded to any party, shall be cumulative
and not alternative.
7.9 Notices. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (a) upon personal
delivery to the party to be notified, (b) when sent by confirmed
telex or facsimile if sent during normal business hours of the
recipient, if not, then on the next business day, or two (2)
business days after deposit with a nationally recognized overnight
courier, specifying next day delivery, with written verification
of receipt. All communications shall be sent to the Company,
Baxter, Crosswell, Dillon, Manteris, Seligmann, Skipper, Xxxxx or
Global at the address as set forth on the signature page hereof,
or at such other address as any party may designate by ten (10)
days' advance written notice to the other parties hereto.
7.10 Expenses. Global and Xxxxxx shall pay all costs and expenses
incurred by them with respect to the negotiation, execution,
delivery and performance of the Agreement. The DMS Group shall
pay all other costs with respect to the negotiation, execution,
delivery and performance of the Agreement, including for costs
associated with the preparation and filing of the Company's
Form 10-KSB and the preparation of the financial statements
included in such Form for the period ended June 30, 2002.
7.11 Attorneys' Fees. In the event that any suit or action is
instituted to enforce any provision in this Agreement, the
prevailing party in such dispute shall be entitled to recover from
the losing party all fees, costs and expenses of enforcing any
right of such prevailing party under or with respect to this
Agreement, including without limitation, such reasonable fees and
expenses of attorneys and accountants, which shall include,
without limitation, all fees, costs and expenses of appeals.
7.12 Titles and Subtitles. The titles of the sections and subsections
of the Agreement are for convenience of reference only and are not
to be considered in construing this Agreement.
7.13 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
7.14 Confidentiality. Each party hereto agrees that, except with the
prior written consent of the other party, it shall at all times
keep confidential and not divulge, furnish or make accessible to
anyone any confidential information, knowledge or data concerning
or relating to the business or financial affairs of the other
parties to which such party has been or shall become privy by
reason of this Agreement, discussions or negotiations relating to
this Agreement, the performance of its obligations hereunder or
the ownership of the Settlement Shares purchased hereunder.
7.15 Pronouns. All pronouns contained herein, and any variations
thereof, shall be deemed to refer to the masculine, feminine or
neutral, singular or plural, as to the identity of the parties
hereto may require.
7.16 Further Assurances. At any time and from time to time after the
Closing Date, each party will execute such additional instruments
and take such actions as may be reasonably requested by the other
party to carry out the intent and purposes of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this SETTLEMENT
AGREEMENT as of the date set forth in the first paragraph hereof.
"COMPANY"
ACOLA CORP.,
a Delaware corporation
By:
__________________________
______
Xxxxxx X. Xxxxxx
President
And
________________________________
Xxxxxxx X. Xxxxx
Chairman
Address:
0000 Xxxxxxxxx Xxxxxxx,
Xxxxx 000
Xxxxxxx, Xxxxx 00000
"XXXXXXXXX"
"DILLON"
_______________________________
Xxxxx X. Xxxxxxxxx
Address:
6219 Xxxxxxxx
Xxxxxxx, Xxxxx 00000
________________________________
Xxxxxx X. Xxxxxx,
Address:
0000 Xxxxxxx #0
Xxxxxxx, Xxxxx 00000
"MANTERIS"
________________________________
Xxxxxxx X. Xxxxxxxx
Address:
0000 Xxxxx Xxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
"SELIGMANN"
"SKIPPER"
_____________________________
Xxxxx Xxxxxxxxx
Address:
0000 Xxxxx #000
Xxxxxxx, Xxxxx 00000
"XXXXX"
____________________________
Xxxxxx X. Xxxxxxx
Address:
c/o Vector Energy Corp.
0000 Xxxxxxxxx Xxxxxxx,
Xxxxx 000
Xxxxxxx, Xxxxx 00000
___________________________________
Xxxxxxx X. Xxxxx
Address:
0000 Xxxxxxxxx Xxxxxxx,
Xxxxx 000
Xxxxxxx, Xxxxx 00000
"GLOBAL"
GLOBAL INVESTMENT ALLIANCE INC.
A New York corporation
By:
__________________________
______
Xxxxx X. Xxxxxx
Title: President
Address:
00 Xxxx Xxxx
Xxxxxxx, XX 00000
"XXXXXX"
_____________________________
Xxxxxx X. Xxxxxx
Address:
0000 Xxxxxxx
Xxxxxxx, Xxxxx 00000
SCHEDULE 3.3(F)
The following are the names and addresses of all persons (other than Messrs.
Xxxxxx, Xxxxxxxx and Xxxxxxx) to whom Acola Corp. issued shares of its Common
Stock following the XxxxXxxxx.xxx, Ltd. merger, together with the number of
shares so issued to each person:
Name Address
Number of Shares
Chateau & Domaine Corp. X/X Xxxxx XX, Xxx xxx Xxxxx 00
750,000
Xxxx xxxxxxx 0000
Xxxxxx 0, Xxxxxxxxxxx CH-1211
Xxxxx Xxxxxxxxx 0000 Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000
500,000
Xxxxx Xxxxxxx 0000 Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx,
XX 00000 100,000
Xxxxxxx Xxxxx 0000 Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx,
XX 00000 100,000
Xxxxxxx X. Xxxxx 0000 Xxxxxxx #000, Xxxxxxx, Xxxxx 00000
5,000
Xxxxxxxx X. Xxxxxxxx 000 Xxxx Xx., #0000, Xxxxxxx, Xxxxx 00000
100,000
Xxxxxxxx X. Xxxxxxxx 0000 Xxxxxxx Xx., Xxxxxxxxx, XX 00000
100,000
Xxxxxxx X. Xxxxxx 0000 Xxxxxxx #0, Xxxxxxx, XX 00000
100,000
Xxxxxx X. Xxxxxx 0000 Xxxx Xxxxxx, Xxxxxxx, Xxxxx 00000
100,000
C. Xxxxx Xxxxxx 0000 Xxxx Xxxxxx, Xxxxxxx, Xxxxx 00000
100,000
Xxxxxxx X. Xxxxxx 00000 Xxxx Xxxxxx, Xxxxxxx, Xxxxx 00000
100,000
X. Xxxxxx Xxxxxx 0000 Xxxx Xxxxxx, Xxxxxxx, Xxxxx 00000
100,000
Xxxxxxx X. Xxxxx 0000 Xxxxxx Xxxxx #000, Xxxxxxx, Xxxxx 00000
100,000
Fordham Ltd. X.X. Xxx 000, Xxxxx Xxxxx & Caicos, BWI
100,000
Xxxxx Xxxxxxxxx 0000 Xxxx Xx. Xxxxx 000, Xxxxxxx, Xxxxx 00000
50,000
Xxxxxx X. Xxxxxx 0000 Xxxxxxx, Xxxxx 000, Xxxxxxx, XX 00000
125,000
SCHEDULE 3.7
AGREEMENTS; ACTIONS
None, other what is disclosed in the June 30, 2002 Schedule 10-KSB.
SCHEDULE 3.11
LITIGATION
On or about August 4, 2000, Management received a letter from an attorney
advising that there is an Order for Entry of Default Judgment in favor of two
alleged former employees of Northern Lights Software, Ltd. (a subsidiary of
the Company) dated March 10, 1998 in the total amount of $74,887. The judgment
was obtained in the State of Colorado and was apparently for unpaid wages.
Until such time, present management was unaware of this claim and judgment. A
former director of the Company advised management that he was also unaware of
this claim and judgment and believed that claimants were actually employees of
Northern Lights Software (New York) Ltd., a subsidiary of Northern Lights
Software, Ltd. Pursuant to an Agreement and Plan of Reorganization dated
February 15, 1999, that former director personally warranted that there were
no undisclosed liabilities in the Company. The Company intends to dispute the
judgment. Management is not able to determine its chance of success in
attempting to set aside the judgment but has obtained compensation in the
amount of $10,300 from the former director in exchange for an indemnity
agreement with the Company.
On or about March 19, 2002, the Company received notice of a lawsuit from two
individuals claiming they are due $26,000 pursuant to their respective
consulting agreements. These consultants assisted in providing content and
advice on the Company's website that was being built in late 2001. Management
asserts that only 4,000 shares of the Company's common stock is due to each.
The Company accrued a total amount of $10,000 for the consultants. Management
believes the probability of any judgment against the Company is remote and has
not accrued any additional expense toward a settlement resulting from
resolution of future negotiations or litigation.
On or about January 4, 2002, the Company received written demand from its
website developer for payment of its billing under the Company's agreement.
The Company has held several discussions with said website developer and
expects to resolve the differences in a mutually beneficial manner. Though not
formally resolved as of the date of this 10-KSB, management has estimated that
a contingent liability exists and accrued $76,294 as a potential liability for
this demand.
On March 29, 2002 the company received written demand from the Attorney
representing Xxxxxx X. Xxxxxx, a consultant and stockholder of the Company.
Xxxxxx claims that he has been defrauded by investing in the Company and that
the Company has had numerous violations of federal and state law, filed
materially misleading filings with the Securities and Exchange Commission,
filed false financial statements and has conspired to manipulate the market.
Xxxxxx also claims he is due $375,000 but is willing to settle for 28,523,400
of the Company's Class A shares as part of a comprehensive settlement
agreement. Such Company share amounts, if transferred to Xxxxxx, would give
Xxxxxx control of the Company. Management is attempting to negotiate a
resolution of this dispute and believes they are close to a settlement that
would give Xxxxxx, including Company shares currently held by him, control of
approximately 86% of the Company.
At the time of the disposition of Northern Lights Software Ltd. (New York),
there were unpaid payroll taxes including interest and penalties amounting to
approximately $445,000 which were assumed by an entity controlled by a
principal stockholder of the Company and the Company was indemnified against
this obligation. Although the Company does not believe it is liable for this
obligation, there can be no assurance that a claim could not be brought
against the Company. If a claim is asserted, the Company intends to defend
itself vigorously.
Other than that stated above, to the best knowledge of the Officers and
Directors of the Company, neither the Company nor any of its Officers or
Directors is a party to any material legal proceeding or litigation and such
persons know of no other material legal proceeding or litigation contemplated
or threatened. Other than that stated above, there are no judgments against
the Company or its Officers or Directors except for Xx. Xxxxxx who has a
personal judgment against him unrelated to the Company.
SCHEDULE 3.12
TAX RETURNS AND PAYMENTS
None.
EXHIBIT I
"ACOLA RELEASE"
RELEASE & INDEMNITY AGREEMENT
THE STATE OF TEXAS '
'
COUNTY OF XXXXXX '
KNOW ALL MEN BY THESE PRESENTS:
THAT We, XXXXX X. XXXXXXXXX, XXXXXX X. XXXXXX, XXXXXXX X. XXXXXXXX, XXXXX
XXXXXXXXX, XXXXXX X. XXXXXXX and XXXXXXX X. XXXXX (collectively, the
"Releasing Parties"), for $10.00 and other good and valuable consideration,
the receipt and sufficiency of which are hereby expressly acknowledged and
agreed to, have RELEASED, ACQUITTED and FOREVER DISCHARGED and by these
presents do, for ourselves, our heirs, executors, administrators, legal
representatives, successors and assigns, RELEASE, ACQUIT and FOREVER
DISCHARGE: ACOLA CORP. ("ACOLA")., its officers, directors and employees,
successors and assigns ("Released Parties") for any and all claims, demands
and causes of action of whatsoever nature, whether in contract or in tort,
which have accrued or may ever accrue to any of the Releasing Parties, its
officers and directors, its heirs, executors, administrators, legal
representatives and assigns, for and on account of any and all transactions
and dealings of any and every nature whatsoever between the Releasing Parties
and the Released Parties, or any of them, at any time on or before the
effective date of this Agreement, including, but not limited to, the matters
and agreements referenced below ("Released Matters"):
1) The Releasing Parties' expenditures, loans to and/or investments in or in
connection with Acola Corp, including, but not limited to, any and all
promissory notes executed by Acola in favor of any of the Releasing
Parties;
2) All representations by Releasing Parties, individually or collectively, to
XXXXXX X. XXXXXX ("Xxxxxx") regarding Acola Corp.;
3) All actions and/or inactions by the Releasing Parties, individually or
collectively, regarding or relating to Acola, including but not limited to,
all actions and/or inactions as officers, directors, shareholders,
founders, control persons, insiders, advisors, attorneys and/or consultants
of Acola;
4) the agreement of August 22, 2001 between Xxxxxx and Acola;
5) the August 22, 2001 promissory note from Acola to Xxxxxx;
6) the August 22, 2001 consulting agreement between Xxxxxx and Acola;
7) the one page typed agreement between Xxxxxx and Acola executed by Xxxxxx on
or about October 10, 2001;
8) the one page handwritten agreement among Xxxxxx, Xxxxxxx and Xxxxxx
executed on October 9, 2001;
9) the handwritten supplemental agreement for Xxxxxx executed by Xxxxxx and
Xxxxxxx on October 11, 2001;
10) the $44,311 Promissory Note of Acola Corp. dated December 29, 2001 payable
to Xxxxxx X. Xxxxxxx; and
11) all accounts payable by Acola Corp. to any of the Releasing Parties.
The Consideration mentioned above is accepted by the Releasing Parties in full
compromise and settlement of any and all claims and causes of action being
asserted or which might have been asserted by the Releasing Parties or could
be asserted by the Releasing Parties in connection with the Released Matters,
whether for property damages, financial loss, damage to reputation, lost
profits, personal injury, mental anguish, punitive damages, loss of
consortium, loss of services, medical expenses, pre-judgment interest,
physical pain and mental anguish, damage to familial relationships, loss of
companionship, society and affection, lost wages, loss of inheritance, claims
arising by virtue of the statutes and/or Constitution of the United States or
the State of Texas, and all exemplary damages.
It is UNDERSTOOD and AGREED that the Consideration given is being given by the
Released Parties in compromise and settlement of a disputed claim, and in
order that the Released Parties may buy their peace, and such payment is in no
way to be construed as an admission of liability on the part of the Released
Parties, and in fact the Released Parties deny any liability to the Releasing
Parties in connection with the Released Matters.
We, XXXXX X. XXXXXXXXX, XXXXXX X. XXXXXX, XXXXXXX X. XXXXXXXX, XXXXX
XXXXXXXXX, XXXXXX X. XXXXXXX and XXXXXXX X. XXXXX agree that the Consideration
specified herein is accepted in full settlement of any and all claims that any
or all of us may have against the Released Parties in connection with the
Released Matters, and as a further part of the consideration we are providing
to the Released Parties for their Consideration to us specified herein, we
hereby expressly warrant and represent to the Released Parties that before
executing this instrument, we have fully informed ourselves of its terms,
contents, conditions and effects; that in making this settlement, we have had
the benefit of advice of attorneys and counselors of our own choosing; and
that no promise or representation of any kind has been made to me by the
Released Parties or anyone acting for them, except as is expressly stated in
this instrument.
Each undersigned warrants and represents that he or it has full authority and
capacity to execute and bind himself or itself to this agreement.
In any action brought on any claim of any kind herein released, this agreement
may be plead by the party against whom that claim is filed as a defense and
this agreement may be used by any party in any suit for breach of this
agreement.
The terms of this agreement shall be governed by and construed in accordance
with the laws of the State of Texas.
We, XXXXX X. XXXXXXXXX, XXXXXX X. XXXXXX, XXXXXXX X. XXXXXXXX, XXXXX
XXXXXXXXX, XXXXXX X. XXXXXXX and XXXXXXX X. XXXXX, further state that as part
of the consideration we are giving to the Released Parties for the
Consideration specified above, each of us expressly acknowledges and agrees,
jointly and severally, to indemnify the Released Parties for all damages,
court costs and attorney's fees in connection with any claim by any third
party claiming by through or under any of us against the Released Parties or
any of them with respect to any of the Released Matters.
We, XXXXX X. XXXXXXXXX, XXXXXX X. XXXXXX, XXXXXXX X. XXXXXXXX, XXXXX
XXXXXXXXX, XXXXXX X. XXXXXXX and XXXXXXX X. XXXXX, further state that as part
of the consideration we are giving to the Released Parties for the
Consideration specified above, we agree not to disparage the Released Parties,
individually or collectively, concerning or in connection with Acola or any of
the Released Matters.
Should any term or provision of this agreement be declared invalid by any
Court or other entity of competent jurisdiction, the parties intend that all
other terms and provisions of this agreement should be valid and binding and
have full effect as if the invalid portion had not been included.
EXECUTED IN MULTIPLE ORIGINALS, on this the _____ day of October, 2002.
ACOLA CORP.,
a Delaware corporation
By:
__________________________
______
Xxxxxx X. Xxxxxx
President
And
________________________________
Xxxxxxx X. Xxxxx
Chairman
Address:
0000 Xxxxxxxxx Xxxxxxx,
Xxxxx 000
Xxxxxxx, Xxxxx 00000
____________________________
XXXXX X. XXXXXXXXX
THE STATE OF TEXAS '
COUNTY OF XXXXXX '
BEFORE ME, the undersigned authority, on this day personally appeared XXXXX X.
XXXXXXXXX, known to me to be the person whose name is subscribed to the
foregoing Release, and acknowledged to me that he executed the same for the
purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the ______ day of October, 2002.
______________________________
Notary Public, State of Texas
My Commission Expires:___________
______________________________
XXXXXX X. XXXXXX
THE STATE OF TEXAS ''
COUNTY OF XXXXXX '
BEFORE ME, the undersigned authority, on this day personally appeared XXXXXX
X. XXXXXX, known to me to be the person whose name is subscribed to the
foregoing Release, and acknowledged to me that he executed the same for the
purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the ______ day of October, 2002.
______________________________
Notary Public, State of Texas
My Commission Expires:___________
______________________________
XXXXXXX X. XXXXXXXX
THE STATE OF TEXAS '
COUNTY OF XXXXXX '
BEFORE ME, the undersigned authority, on this day personally appeared XXXXXXX
X. XXXXXXXX, known to me to be the person whose name is subscribed to the
foregoing Release, and acknowledged to me that he executed the same for the
purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the ______ day of October, 2002.
______________________________
Notary Public, State of Texas
My Commission Expires:___________
______________________________
XXXXX XXXXXXXXX
THE STATE OF TEXAS '
COUNTY OF XXXXXX '
BEFORE ME, the undersigned authority, on this day personally appeared XXXXX
XXXXXXXXX, known to me to be the person whose name is subscribed to the
foregoing Release, and acknowledged to me that he executed the same for the
purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the ______ day of October, 2002.
______________________________
Notary Public, State of Texas
My Commission Expires:___________
______________________________
XXXXXX X. XXXXXXX
THE STATE OF TEXAS '
'
COUNTY OF XXXXXX '
BEFORE ME, the undersigned authority, on this day personally appeared XXXXXX
X. XXXXXXX, known to me to be the person whose name is subscribed to the
foregoing Release, and acknowledged to me that he executed the same for the
purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the ______ day of October, 2002.
______________________________
Notary Public, State of Texas
My Commission Expires:___________
_
_____________________________
XXXXXXX X. XXXXX
THE STATE OF TEXAS '
COUNTY OF XXXXXX '
BEFORE ME, the undersigned authority, on this day personally appeared XXXXXXX
X. XXXXX, known to me to be the person whose name is subscribed to the
foregoing Release, and acknowledged to me that he executed the same for the
purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the ______ day of October, 2002.
______________________________
Notary Public, State of Texas
My Commission Expires:___________
EXHIBIT II
"DMS RELEASE"
RELEASE & INDEMNITY AGREEMENT
THE STATE OF TEXAS '
'
COUNTY OF XXXXXX '
KNOW ALL MEN BY THESE PRESENTS:
THAT We, XXXXX X. XXXXXXXXX, XXXXXX X. XXXXXX, XXXXXXX X. XXXXXXXX, XXXXX
XXXXXXXXX, XXXXXX X. XXXXXXX, XXXXXXX X. XXXXX and ACOLA CORP.
("ACOLA")(collectively, the "Releasing Parties"), for $10.00 and other good
and valuable consideration, the receipt of which is hereby expressly
acknowledged and agreed to, have RELEASED, ACQUITTED and FOREVER DISCHARGED
and by these presents do, for ourselves, our heirs, executors, administrators,
legal representatives, successors and assigns, RELEASE, ACQUIT and FOREVER
DISCHARGE: XXXXXX X. XXXXXX ("XXXXXX")., his employees, heirs, executors,
administrators, legal representatives, successors and assigns ("Released
Parties") for any and all claims, demands and causes of action of whatsoever
nature, whether in contract or in tort, which have accrued or may ever accrue
to any of the Releasing Parties, its officers and directors, its heirs,
executors, administrators, legal representatives and assigns, for and on
account of any and all transactions and dealings of any and every nature
whatsoever between the Releasing Parties and the Released Parties, or any of
them, at any time on or before the effective date of this Agreement,
including, but not limited to, the matters and agreements referenced below
("Released Matters"):
1) Xxxxxx'x expenditures and/or investments in or in connection with Acola
Corp, including, but not limited to, the $375,000.00 reflected in the
documents referenced in (iv), (v), (vi), (vii), (viii), and (ix) below;
2) All representations by Releasing Parties, individually or collectively, to
Xxxxxx regarding Acola Corp.;
3) All actions and/or inactions by the Releasing Parties, individually or
collectively, regarding or relating to Acola, including but not limited to,
all actions and/or inactions as officers, directors, shareholders,
founders, control persons, insiders, advisors, attorneys and/or consultants
of Acola;
4) the agreement of August 22, 2001 between Xxxxxx and Acola;
5) the August 22, 2001 promissory note from Acola to Xxxxxx;
6) the August 22, 2001 consulting agreement between Xxxxxx and Acola;
7) the one page typed agreement between Xxxxxx and Acola executed by Xxxxxx on
or about October 10, 2001;
8) the one page handwritten agreement among Xxxxxx, Xxxxxxx and Xxxxxx
executed on October 9, 2001; and
9) the handwritten supplemental agreement for Xxxxxx executed by Xxxxxx and
Xxxxxxx on October 11, 2001.
The Consideration mentioned above is accepted by the Releasing Parties in full
compromise and settlement of any and all claims and causes of action being
asserted or which might have been asserted by the Releasing Parties or could
be asserted by the Releasing Parties in connection with the Released Matters,
whether for property damages, financial loss, damage to reputation, lost
profits, personal injury, mental anguish, punitive damages, loss of
consortium, loss of services, medical expenses, pre-judgment interest,
physical pain and mental anguish, damage to familial relationships, loss of
companionship, society and affection, lost wages, loss of inheritance, claims
arising by virtue of the statutes and/or Constitution of the United States or
the State of Texas, and all exemplary damages.
It is UNDERSTOOD and AGREED that the Consideration given is being given by the
Released Parties in compromise and settlement of a disputed claim, and in
order that the Released Parties may buy their peace, and such payment is in no
way to be construed as an admission of liability on the part of the Released
Parties, and in fact the Released Parties deny any liability to the Releasing
Parties in connection with the Released Matters.
We, XXXXX X. XXXXXXXXX, XXXXXX X. XXXXXX, XXXXXXX X. XXXXXXXX, XXXXX
XXXXXXXXX, XXXXXX X. XXXXXXX, XXXXXXX X. XXXXX and ACOLA CORP., agree that the
Consideration specified herein is accepted in full settlement of any and all
claims that any or all of us may have against the Released Parties in
connection with the Released Matters, and as a further part of the
consideration we are providing to the Released Parties for their Consideration
to us specified herein, we hereby expressly warrant and represent to the
Released Parties that before executing this instrument, we have fully informed
ourselves of its terms, contents, conditions and effects; that in making this
settlement, we have had the benefit of advice of attorneys and counselors of
our own choosing; and that no promise or representation of any kind has been
made to me by the Released Parties or anyone acting for them, except as is
expressly stated in this instrument.
Each undersigned warrants and represents that he or it has full authority and
capacity to execute and bind himself or itself to this agreement.
In any action brought on any claim of any kind herein released, this agreement
may be plead by the party against whom that claim is filed as a defense and
this agreement may be used by any party in any suit for breach of this
agreement.
The terms of this agreement shall be governed by and construed in accordance
with the laws of the State of Texas.
We, XXXXX X. XXXXXXXXX, XXXXXX X. XXXXXX, XXXXXXX X. XXXXXXXX, XXXXX
XXXXXXXXX, XXXXXX X. XXXXXXX, XXXXXXX X. XXXXX and ACOLA CORP., further state
that as part of the consideration we are giving to the Released Parties for
the Consideration specified above, each of us expressly acknowledges and
agrees, jointly and severally, to indemnify the Released Parties for all
damages, court costs and attorney's fees in connection with any claim by any
third party claiming by through or under any of us against the Released
Parties or any of them with respect to any of the Released Matters.
We, XXXXX X. XXXXXXXXX, XXXXXX X. XXXXXX, XXXXXXX X. XXXXXXXX, XXXXX
XXXXXXXXX, XXXXXX X. XXXXXXX, XXXXXXX X. XXXXX and ACOLA CORP., further state
that as part of the consideration we are giving to the Released Parties for
the Consideration specified above, we agree not to disparage the Released
Parties, individually or collectively, concerning or in connection with Acola
or any of the Released Matters.
Should any term or provision of this agreement be declared invalid by any
Court or other entity of competent jurisdiction, the parties intend that all
other terms and provisions of this agreement should be valid and binding and
have full effect as if the invalid portion had not been included.
EXECUTED IN MULTIPLE ORIGINALS, on this the _____ day of October, 2002.
ACOLA CORP.,
a Delaware corporation
By:
__________________________
______
Xxxxxx X. Xxxxxx
President
And
________________________________
Xxxxxxx X. Xxxxx
Chairman
Address:
0000 Xxxxxxxxx Xxxxxxx,
Xxxxx 000
Xxxxxxx, Xxxxx 00000
____________________________
XXXXX X. XXXXXXXXX
THE STATE OF TEXAS '
COUNTY OF XXXXXX '
BEFORE ME, the undersigned authority, on this day personally appeared XXXXX X.
XXXXXXXXX, known to me to be the person whose name is subscribed to the
foregoing Release, and acknowledged to me that he executed the same for the
purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the ______ day of October, 2002.
______________________________
Notary Public, State of Texas
My Commission Expires:___________
_____________________________
XXXXXX X. XXXXXX
THE STATE OF TEXAS ''
COUNTY OF XXXXXX '
BEFORE ME, the undersigned authority, on this day personally appeared XXXXXX
X. XXXXXX, known to me to be the person whose name is subscribed to the
foregoing Release, and acknowledged to me that he executed the same for the
purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the ______ day of October, 2002.
______________________________
Notary Public, State of Texas
My Commission Expires:___________
______________________________
XXXXXXX X. XXXXXXXX
THE STATE OF TEXAS '
COUNTY OF XXXXXX '
BEFORE ME, the undersigned authority, on this day personally appeared XXXXXXX
X. XXXXXXXX, known to me to be the person whose name is subscribed to the
foregoing Release, and acknowledged to me that he executed the same for the
purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the ______ day of October, 2002.
______________________________
Notary Public, State of Texas
My Commission Expires:___________
______________________________
XXXXX XXXXXXXXX
THE STATE OF TEXAS '
COUNTY OF XXXXXX '
BEFORE ME, the undersigned authority, on this day personally appeared XXXXX
XXXXXXXXX, known to me to be the person whose name is subscribed to the
foregoing Release, and acknowledged to me that he executed the same for the
purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the ______ day of October, 2002.
______________________________
Notary Public, State of Texas
My Commission Expires:___________
______________________________
XXXXXX X. XXXXXXX
THE STATE OF TEXAS '
'
COUNTY OF XXXXXX '
BEFORE ME, the undersigned authority, on this day personally appeared XXXXXX
X. XXXXXXX, known to me to be the person whose name is subscribed to the
foregoing Release, and acknowledged to me that he executed the same for the
purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the ______ day of October, 2002.
______________________________
Notary Public, State of Texas
My Commission Expires:___________
______________________________
XXXXXXX X. XXXXX
THE STATE OF TEXAS '
COUNTY OF XXXXXX '
BEFORE ME, the undersigned authority, on this day personally appeared XXXXXXX
X. XXXXX, known to me to be the person whose name is subscribed to the
foregoing Release, and acknowledged to me that he executed the same for the
purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the ______ day of October, 2002.
______________________________
Notary Public, State of Texas
My Commission Expires:___________
EXHIBIT III
"XXXXXX RELEASE"
RELEASE & INDEMNITY AGREEMENT
THE STATE OF TEXAS '
COUNTY OF XXXXXX '
KNOW ALL MEN BY THESE PRESENTS:
THAT I, XXXXXX X. XXXXXX ("Xxxxxx"), for $10.00 and other good and valuable
consideration, the receipt of which is hereby expressly acknowledged and
agreed to, have RELEASED, ACQUITTED and FOREVER DISCHARGED and by these
presents do, for myself, my heirs, executors, administrators, legal
representatives, successors and assigns, RELEASE, ACQUIT and FOREVER
DISCHARGE: XXXXX X. XXXXXXXXX, XXXXXX X. XXXXXX, XXXXXXX X. XXXXXXXX, XXXXX
XXXXXXXXX, XXXXXX X. XXXXXXX, XXXXXXX X. XXXXX and ACOLA CORP., their officers
and directors, employees, heirs, executors, administrators, legal
representatives, successors and assigns ("Released Parties") for any and all
claims, demands and causes of action of whatsoever nature, whether in contract
or in tort, which have accrued or may ever accrue to Xxxxxx, his heirs,
executors, administrators, legal representatives and assigns, for and on
account of any and all transactions and dealings of any and every nature
whatsoever between Xxxxxx and the Released Parties, or any of them, at any
time on or before the effective date of this Agreement, including, but not
limited to, the matters and agreements referenced below ("Released Matters"):
1) Xxxxxx'x expenditures and/or investments in or in connection with Acola
Corp, including, but not limited to, the $375,000.00 reflected in the
documents referenced in (iv), (v), (vi), (vii), (viii), and (ix) below;
2) All representations by Released Parties, individually or collectively, to
Xxxxxx regarding Acola Corp.;
3) All actions and/or inactions by the Released Parties, individually or
collectively, regarding or relating to Acola, including but not limited to,
all actions and/or inactions as officers, directors, shareholders,
founders, control persons, insiders, advisors, attorneys and/or consultants
of Acola;
4) the agreement of August 22, 2001 between Xxxxxx and Acola;
5) the August 22, 2001 promissory note from Acola to Xxxxxx;
6) the August 22, 2001 consulting agreement between Xxxxxx and Acola;
7) the one page typed agreement between Xxxxxx and Acola executed by Xxxxxx on
or about October 10, 2001;
8) the one page handwritten agreement among Xxxxxx, Xxxxxxx and Xxxxxx
executed on October 9, 2001; and
9) the handwritten supplemental agreement for Xxxxxx executed by Xxxxxx and
Xxxxxxx on October 11, 2001.
The Consideration mentioned above is accepted by Xxxxxx in full compromise and
settlement of any and all claims and causes of action being asserted or which
might have been asserted by Xxxxxx or could be asserted by Xxxxxx in
connection with the Released Matters, whether for property damages, financial
loss, damage to reputation, lost profits, personal injury, mental anguish,
punitive damages, loss of consortium, loss of services, medical expenses, pre-
judgment interest, physical pain and mental anguish, damage to familial
relationships, loss of companionship, society and affection, lost wages, loss
of inheritance, claims arising by virtue of the statutes and/or Constitution
of the United States or the State of Texas, and all exemplary damages.
It is UNDERSTOOD and AGREED that the Consideration given is being given by the
Released Parties in compromise and settlement of a disputed claim, and in
order that the Released Parties may buy their peace, and such payment is in no
way to be construed as an admission of liability on the part of the Released
Parties, and in fact the Released Parties deny any liability to Xxxxxx in
connection with the Released Matters.
I, XXXXXX X. XXXXXX, M.D., agree that the Consideration specified herein is
accepted in full settlement of any and all claims that I may have against the
Released Parties in connection with the Released Matters, and as a further
part of the consideration I am providing to the Released Parties for their
Consideration to me specified herein, I hereby expressly warrant and represent
to the Released Parties that before executing this instrument, I have fully
informed myself of its terms, contents, conditions and effects; that in making
this settlement, I have had the benefit of advice of attorneys and counselors
of my own choosing; and that no promise or representation of any kind has been
made to me by the Released Parties or anyone acting for them, except as is
expressly stated in this instrument.
The undersigned warrants and represents that he has full authority and
capacity to execute and bind himself to this agreement.
In any action brought on any claim of any kind herein released, this agreement
may be plead by the party against whom that claim is filed as a defense and
this agreement may be used by any party in any suit for breach of this
agreement.
The terms of this agreement shall be governed by and construed in accordance
with the laws of the State of Texas.
I, XXXXXX X. XXXXXX, MD., further state that as part of the consideration I am
giving to the Released Parties for the Consideration specified above, I
expressly acknowledge and agree to indemnify the Released Parties for all
damages, court costs and attorney's fees in connection with any claim by any
third party claiming by through or under me against the Released Parties or
any of them with respect to any of the Released Matters.
I, XXXXXX X. XXXXXX, MD., further state that as part of the consideration I am
giving to the Released Parties for the Consideration specified above, I agree
not to disparage the Released Parties, individually or collectively,
concerning or in connection with Acola or any of the Released Matters.
Should any term or provision of this agreement be declared invalid by any
Court or other entity
of competent jurisdiction, the parties intend that all other terms and
provisions of this agreement should be valid and binding and have full effect
as if the invalid portion had not been included.
EXECUTED IN MULTIPLE ORIGINALS, on this the _____ day of October, 2002.
______________________________
XXXXXX X. XXXXXX, M.D.
THE STATE OF TEXAS '
'
COUNTY OF XXXXXX '
BEFORE ME, the undersigned authority, on this day personally appeared XXXXXX
X. XXXXXX, M.D., known to me to be the person whose name is subscribed to the
foregoing Release, and acknowledged to me that he executed the same for the
purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the ______ day of October, 2002.
______________________________
Notary Public, State of Texas
My Commission Expires:___________
22
35
