EXHIBIT 10.61
SETTLEMENT AGREEMENT, MUTUAL RELEASE AND WAIVER OF CLAIMS
THIS SETTLEMENT AGREEMENT, MUTUAL RELEASE AND WAIVER OF CLAIMS
(hereinafter "Agreement") is made and entered into by and between Aquis
Communications Group, Inc. ("Aquis"), Xxxx X. Xxxxxxxx, Xxxxx Xxxxxxxx, Xxxxxxx
Xxxx, Xxxxxxx Xxxxxxx and Xxxxxx Xxxxxxxx, on the one hand (Aquis and the
foregoing individuals are hereinafter collectively referred to at times as the
"Aquis Parties"), and Xxxx X. Xxxxxxxx ("Xxxxxxxx") and Teleservices Group,
Inc., on the other hand (Xxxxxxxx and Teleservices Group, Inc. are hereinafter
collectively referred to at times as the "Xxxxxxxx Parties"). The foregoing
parties may also be referred to collectively as the "Parties."
WITNESSETH
WHEREAS, Aquis and Xxxxxxxx are parties to that certain Settlement
Agreement and Release and Waiver of Claims dated as of April 4, 2000 (the "Prior
Settlement Agreement"), a true and correct copy of which is attached hereto as
Exhibit A;
WHEREAS, in connection with the Prior Settlement Agreement, the Parties
executed certain other agreements and instruments, including (1) that certain
Promissory Note executed by Xxxxxxxx on April 5, 2000 (the "Promissory Note"), a
true and correct copy of which is attached hereto as Exhibit B; (2) that certain
"Aquis Communications Group, Inc. Amended and Restated Nonqualified Stock Option
Agreement" made and entered into as of April 4, 2000 between Aquis and Xxxxxxxx
(the "Option Agreement"), a true and correct copy of which is attached hereto as
Exhibit C; and (3) that certain Side Agreement made as of April 5, 2000 between
Aquis and Xxxxxxxx (the "Side Agreement"), a true and correct copy of which is
attached hereto as Exhibit D;
WHEREAS, Aquis fied an action against Xxxxxxxx in the Superior Court of
New Jersey, Law Division, Xxxxxx County, Docket No. MRS-L-395-01 (the "Xxxxxx
County Action") seeking to enforce the Promissory Note;
WHEREAS, Xxxxxxxx fied a responsive pleading in the Xxxxxx County
action which included an Answer, and a Counterclaim and Third Party Complaint
asserting claims against the Aquis Parties, including claims arising under the
Prior Settlement Agreement;
WHEREAS, Teleservices Group, Inc. filed an action against Frieling in
the Superior Court of New Jersey, Law Division, Essex County, Docket No.
L-10367-00 (the "Essex County Action");
WHEREAS, the Aquis Parties and the Xxxxxxxx Parties desire to enter
into a full and complete settlement of all differences and outstanding claims
between them, not only of claims that are the subject of the Xxxxxx County
Action or the Essex County Action, subject to the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the mutual promises herein
contained, and intending to be legally bound hereby, it is agreed as follows:
1. This Agreement shall be effective as of the last date on which it is
executed by any of the Parties hereto (the "Effective Date").
2. As consideration for this Agreement, the Aquis parties agree to the
following terms:
a. Aquis agrees to and shall pay the Xxxxxxxx Parties
the sum of One Hundred and Seventeen Thousand Five
Hundred Dollars ($117,000.00) (hereinafter the
"Settlement Amount"). The parties intend and agree
that Fifty Thousand Dollars ($50,000.00) of the
Settlement Amount is to be allocated as reimbursement
for expenses. The Settlement Amount shall be paid as
follows: A wire transfer from Aquis for the full
Settlement Amount to "Xxxxxxxxx & Xxxxxxxxx as
attorneys for Xxxx X. Xxxxxxxx and Teleservices
Group, Inc.," which shall be wired on the Effective
Date of this Agreement, subject to the conditions set
forth in this Agreement. The entire Settlement Amount
is a sum of money the Xxxxxxxx Parties are entitled
to receive only by virtue of this settlement of
pending litigation.
b. Aquis agrees to and shall release the indebtedness
reflected in the Promissory Note, as well as any
interest or other charges accrued under the Note.
Aquis shall surrender the Note by delivering it to
Xxxxxxxx'x aforesaid counsel by overnight mail so as
to be received no later than the third (3rd) day
after the Effective Date of this Agreement, subject
to the conditions set forth in this Agreement. If the
Note can not be located, Aquis will provide an
affidavit to that effect. Aquis represents and
warrants that the Promissory Note has not been
pledged, hypothecated, assigned or otherwise
transferred to an unrelated third party. Aquis shall
not report as income taxable to Xxxxxxxx attributable
to the transactions contemplated by this Agreement an
amount in excess of the sum of (a) the Settlement
Amount minus the Fifty Thousand Dollars ($50,000.00)
allocated as reimbursement for expenses, and (b) the
Fifty Thousand Dollars (50,000.00) principal amount
of the Promissory Note (as defined below), which is
all that remained due on said Promissory Note prior
to the execution of this Agreement.
3. As consideration for this Agreement, the Xxxxxxxx Parties agree to the
following terms:
a. Each of the Xxxxxxxx Parties hereby covenants,
represents, warrants, acknowledges and agrees that
neither Xxxxxxxx nor Teleservices Group, nor any
person acting in concert with either of them, nor any
family member (defined for this purpose to include
Xxxxxxxx'x spouse and children) or company,
partnership or trust in which either of them (or such
family member or person) owns five (5%) percent or
more of its equity or voting interests or for which
Xxxxxxxx serves as an employee, agent, officer,
director, or partner owns, directly or indirectly,
any equity or voting interests or direct or indirect
rights or options to acquire any voting securities or
other equity interests of Aquis or any of its
divisions, groups, affiliates, immediate or remote
parent or subsidiary entities, or successors or
predecessors in interest ("Aquis Securities"), as of
the date of the Xxxxxxxx Parties' execution of this
Agreement (the "Execution Date"), with the exception
of Xxxxxxxx'x Settlement Options, as defined below,
which options Xxxxxxxx is giving up and forfeiting to
Aquis as of the Execution Date of this Agreement.
Notwithstanding the foregoing, this Agreement does
not in any way prohibit any of the Xxxxxxxx Parties
or the family members from owning an interest in a
mutual fund which may or may not own an Aquis
Security.
b. Each of the Xxxxxxxx Parties hereby covenants,
represents, warrants, acknowledges and agrees to give
up and forfeit any and all options to purchase Aquis
Securities which either of them currently owns,
including but not limited to the Settlement Options
which were the subject of the Prior Settlement
Agreement and related Option Agreement. Xxxxxxxx will
give up the Settlement Options by surrendering the
Option Agreement and by agreeing that the Option
Agreement and the Option referenced therein shall be
and hereby is terminated, null and void, and of no
further force and effect. Xxxxxxxx hereby
acknowledges, represents, covenants and agrees that
all remaining options in Aquis Stock previously
granted to or otherwise acquired by him have been
terminated and are null and void.
c. Neither Xxxxxxxx, nor any person acting in concert
with him, nor any family member (defined for this
purpose to include his spouse and children) or
company, partnership or trust in which Xxxxxxxx (or
such family member or person) owns five (5%) percent
or more of its equity or voting interests or for
which Xxxxxxxx serves as an employee, agent, officer,
director, or partner, will at any time on or after
the Execution Date: (i) acquire, offer to acquire, or
agree to acquire, directly or indirectly, by purchase
or otherwise, any voting securities or direct or
indirect rights or options to acquire any Aquis
Securities; (ii) make, or in any way participate,
directly or indirectly, in any "solicitation" of
"proxies" to vote (as such terms are interpreted in
the proxy rules of the Securities and Exchange
Commission), or seek to advise or influence any
person or entity with respect to the voting of any
Aquis Securities, or (iii) form, join or in any way
participate in a "group" within the meaning of
Section 13(d)(3) of the Securities Exchange Act of
1934 with respect to any Aquis Securities for the
purpose of seeking to control the management, Board
of Directors or policies of Aquis, or for any other
purpose. Further, the parties acknowledge that Aquis
would not have an adequate remedy at law for money
damages in the event that this covenant were not
performed in accordance with its terms and therefore
Xxxxxxxx agrees that Aquis shall be entitled to
specific enforcement of the terms hereof in addition
to any other remedy to which it may be entitled, at
law or in equity.
4. The Xxxxxxxx Parties will receive appropriate tax documentation for the
consideration received hereunder from Aquis, which shall be an IRS Form
1099.
5. The Parties acknowledge and agree that the foregoing consideration
represents a full and complete settlement of the claims and allegations
raised or which could have been raised in the Xxxxxx County Action, the
Essex County Action, or otherwise. The parties further agree that the
Xxxxxx County Action and the Essex County Action each shall be
dismissed with prejudice no later than ten (10) calendar days after the
Effective Date, which shall be accomplished through the Parties' joint
filing of stipulations of dismissal in form substantially the same as
Exhibit E hereto.
6. As a material inducement for the Aquis Parties to enter into this
Agreement, the Xxxxxxxx Parties, on behalf of themselves, the Xxxxxxxx
Releasees, their collective predecessors, successors and assigns,
hereby unconditionally release, discharge and acquit the Aquis Parties,
their owners, stockholders, predecessors, successors, assigns, agents,
directors, officers, current and former employees, representatives,
attorneys, divisions, groups, subsidiaries, affiliates and parent
companies, as well as any parent companies' owners, stockholders,
predecessors, successors, heirs, executors, administrators, assigns,
agents, directors, officers, current and former employees,
representatives, divisions, groups, subsidiaries and affiliates, and
all persons acting by, through, under, or in concert with any of them,
or any of them (collectively, the "Aquis Releasees") from all actions,
claims, causes of action, charges, suits, debts, dues, sums of money,
accounts, reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses, damages,
judgments, extents, demands, or any other type of relief of any nature
whatsoever, whether known or unknown, whether statutory or common law,
whether federal, state, or local, which the Xxxxxxxx Parties, the
Xxxxxxxx Releasees (as defined below), or any of them, has asserted or
could have asserted, now has, or ever had, against the Aquis Parties or
the Aquis Releasees from the beginning of time to the Effective Date of
this Agreement. The Xxxxxxxx Parties represent they know of no claim
they have against the Aquis Parties other than those raised in the
Xxxxxx County Action and the Essex County Action.
7. As a material inducement for the Xxxxxxxx Parties to enter into this
Agreement, the Aquis Parties, on behalf of themselves, the Aquis
Releasees, their collective predecessors, successors and assigns,
hereby unconditionally release, discharge and acquit the Xxxxxxxx
Parties, their owners, stockholders, predecessors, successors, assigns,
agents, directors, officers, current and former employees,
representatives, attorneys, divisions, groups, subsidiaries, affiliates
and parent companies, as well as any parent companies' owners,
stockholders, predecessors, successors, heirs, executors,
administrators, assigns, agents, directors, officers, current and
former employees, representatives, divisions, groups, subsidiaries and
affiliates, and all persons acting by, through, under, or in concert
with any of them, or any of them (collectively, the "Xxxxxxxx
Releasees") from all actions, claims, causes of action, charges, suits,
debts, dues, sums of money, accounts, reckonings, bonds, bills,
specialties, covenants, contracts, controversies, agreements, promises,
variances, trespasses, damages, judgments, extents, demands, or any
other type of relief of any nature whatsoever, whether known or
unknown, whether statutory or common law, whether federal, state, or
local, which the Aquis Parties, the Aquis Releasees, or any of them,
has asserted or could have asserted, now has, or ever had, against the
Xxxxxxxx Parties or the Xxxxxxxx Releasees from the beginning of time
to the Effective Date of this Agreement. The Aquis Parties represent
that they know of no claim they have against the Xxxxxxxx Parties other
than those raised in the Xxxxxx County Action and the Essex County
Action.
8. It is the purpose of the mutual waiver and release paragraphs of this
Agreement for the parties to effect a full general release of each
other, except with respect to specifcally stated exceptions or
obligations stated hereunder. The Parties acknowledge and agree that
the foregoing releases specifically include and resolve any and all
claims (in addition to those above) for related costs and/or attorneys'
fees. This Agreement and the releases hereunder are without prejudice
to the Parties' right to enforce the terms and conditions of this
Agreement.
9. The Xxxxxxxx Parties agree that they will be responsible for any income
tax liability which may be imposed on the receipt of consideration
provided hereunder, including but not limited to the Xxxxxxxxxx Xxxxxx.
x0. The Xxxxxxxx Parties agree that they will not voluntarily assist others
in bringing any type of claim against any of the Aquis Parties or any
of the Aquis Releasees, involving any matter allegedly occurring and/or
occurring in the past up to the date of this Agreement, or involving
and based upon any claims which are the subject of this Agreement.
Xxxxxxxx acknowledges and agrees that his employment with Aquis has
ended, that he will never knowingly apply for employment with Aquis or
any group, division, subsidiary or affiliate of Aquis, and that he will
not be so employed or have any business relationship with Aquis, unless
requested to do so by Aquis in writing. Xxxxxxxx further agrees that he
is waiving any claim which he may have to reinstatement with Aquis
under any contractual, statutory or common law cause of action. The
Xxxxxxxx Parties and the Aquis Parties agree that each shall not
defame, slander, or libel one another. The Aquis Parties agree that
they will not voluntarily assist others in bringing any type of claim
against any of the Xxxxxxxx Parties or any of the Xxxxxxxx Releasees,
involving any matter allegedly occurring and/or occurring in the past
up to the date of this Agreement, or involving and based upon any
claims which are the subject of this Agreement.
11. This Agreement shall not in any way be construed as an admission of any
acts of wrongdoing whatsoever by any Party, with all Parties
specifically disclaiming any wrongdoing or liability of any kind.
12. Each Party represents that it has not heretofore assigned or
transferred, or purported to assign or transfer, to any person or
entity, any claim or any portion of a claim covered by this Agreement.
13. Each Party represents and acknowledges that in executing this
Agreement, he does not rely, and has not relied, upon any
representation or statement made by any other Party, or any of the
Releasees or their agents, representatives or attorneys with regard to
the subject matter, basis, content or effect of this Agreement or
otherwise. The Xxxxxxxx Parties specifically represent and acknowledge
that they are not relying upon any representation or statement made by
any other Party, or any of the Releasees or their agents,
representatives or attorneys with regard to the financial condition or
any other aspect of the Company, and that the Xxxxxxxx Parties have
requested disclosure of and received all material information
necessary for them to make an informed decision regarding this
Agreement.
14. Each Party acknowledges that prior to the execution of this Agreement,
the Party sought the advice and counsel of that Party's attorney
regarding the contents of this Agreement. Each and every Party hereto
acknowledges that the Party has entered into this Agreement knowingly,
voluntarily and of his own free will.
15. This Agreement shall be binding upon the Aquis Parties and the Xxxxxxxx
Parties, and upon their respective heirs, administrators,
representatives, executors, successors and assigns, if any, and shall
inure to the benefit of the Aquis Parties, the Aquis Releasees, the
Xxxxxxxx Parties, the Xxxxxxxx Releasees, and each of them, and to
their respective heirs, administrators, representatives, executors,
successors and assigns, if any.
16. This Agreement is made in the State of New Jersey and shall in all
respects be interpreted, enforced and governed under the laws of said
State, without regard to its choice of law provisions, as well as the
laws of the United States of America. The language of all parts of this
Agreement shall in all cases be construed as a whole and according to
its fair meaning.
17. Should any word, phrase, sentence, paragraph, clause or provision of
this Agreement be declared or be determined by any court or other
tribunal to be illegal of invalid, the validity of the remaining parts,
terms or provision shall not be affected thereby and said illegal or
invalid part, term, or provision shall be deemed not to be a part of
this Agreement.
18. As used in this Agreement, the singular or plural shall be deemed to
include the other whenever the context so indicates or requires.
19. The Parties hereto shall take such further action and execute such
further instruments or documents as may be reasonably necessary to
effectuate the purpose and intent of this Agreement.
20. This written Agreement sets forth the entire agreement and
understanding among the parties hereto, and fully supersedes any and
all prior agreements or understandings between the parties hereto
pertaining to the subject matter hereof, including the Option
Agreement, which is nullified as provided above, but excluding the Side
Agreement, which shall remain in full force and effect; provided,
however, that the Prior Settlement Agreement shall be superseded hereby
in some respects, but shall remain in full force and effect in certain
other respects, as follows: (a) Paragraph 1 of the Prior Settlement
Agreement reciting the consideration by Aquis for that Prior Settlement
Agreement shall be and hereby is rescinded, superseded, void, nullified
and of no further force and effect; (b) Paragraph 2 and Paragraph 5 of
the Prior Settlement Agreement shall remain valid, enforceable, and in
full force and effect; (c) Paragraph 3 of the Prior Settlement
Agreement remains valid, enforceable, and in full force and effect,
except that the Parties' right to enforce the Prior Settlement
Agreement shall remain valid only to the extent that provisions and
terms of that Prior Settlement Agreement are hereby preserved; and (d)
all other terms and provisions of the Prior Settlement Agreement shall
remain valid, enforceable, and in full force and effect, except to the
extent expressly modified or superseded by this Agreement.
21. The failure of any Party to require the performance of any term or
obligation of this Agreement or the waiver by any Party of any breach
of this Agreement, shall not prevent any subsequent enforcement of such
term or obligation and shall not be deemed a waiver of any subsequent
breach. No modification or waiver of any provision of this Agreement
shall be effective unless in writing and signed by all Parties.
22. This Agreement may be executed through the use of separate signature
pages in multiple originals and in counterparts, each of which shall be
deemed an original and all of which together shall constitute one and
the same Agreement, binding on all parties, notwithstanding that all
parties are not signatories to the same counterpart. The parties shall
exchange original signed Agreements as soon as practicable following
delivery and execution as aforesaid.
PLEASE READ CAREFULLY. THIS AGREEMENT INCLUDES
A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS
AQUIS COMMUNICATIONS GROUP, INC.
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
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Title: Chief Executive Officer
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XXXX X. XXXXXXXX
Date: 10/16/01 /s/ Xxxx X. Xxxxxxxx
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XXXXX XXXXXXXX
Date: 10/16/01 /s/ Xxxxx Xxxxxxxx
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XXXXXXX XXXX
Date: /s/ Xxxxxxx X. Xxxx
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XXXXXXX XXXXXXX
Date: /s/ Xxxxxxx X. Xxxxxxx
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XXXXXX XXXXXXXX
Date: /s/ Xxxxxx Xxxxxxxx
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XXXX X. XXXXXXXX
Date: /s/ Xxxx X. Xxxxxxxx
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TELESERVICES GROUP, INC.
By: /s/ Xxxx X. Xxxxxxxx
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Name:
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Title:
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