SETTLEMENT AGREEMENT AND GENERAL RELEASE
The
following is a Settlement Agreement and General Release (the "Agreement") by
and
among THE SMALL BUSINESS COMPANY, INC. (hereafter referred to as "SBCO") and,
XXXXX XXXXXXXXX (hereafter referred to as “OSTROWIAK ”, regarding any and all
past and present known and unknown claims and disputes (and their future
effects) that have arisen or could arise out of the events described in the
recitals below. SBCO and OSTROWIAK may be collectively referred to herein as
the
"PARTIES".
For
the
purposes of this Agreement, the PARTIES addresses of record are 000 Xxx xx
xx
Xxxxx, Xxx. 000, Xxxxxx Xxxxx, XX 00000.
Definitions
“Effective
date”
shall
mean “effective date” shall mean that all of the transactions contemplated
herein, including but not limited to those related to the issuance of stock
pursuant to the terms of this Agreement will have occurred on or before June
30,
2008.
Recitals
A.
SBCO
is a corporation duly formed, existing, and operating in good standing under
the
laws of the State of Delaware.
B.
On or
about January 1, 2008, OSTROWIAK and SBCO entered into a written consulting
agreement whereby OSTROWIAK agreed to provide consulting services to
SBCO.
The
consulting agreement is attached to this settlement agreement and incorporated
herein by reference. The terms of the consulting agreement provided that SBCO
would pay OSTROWIAK cash money upon presentation of his invoice for payment.
OSTROWIAK presented his invoice for a total of sixteen thousand, six hundred
and
sixty seven dollars [$16,667.00] to SBCO for payment. SBCO offered to pay
OSTROWIAK in shares of restricted stock rather than cash money, and the PARTIES
thereafter entered into good faith negotiations in this regard. This culminated
in SBCO offering, and OSTROWIAK agreeing to accepting an issuance of restricted
common shares instead of cash money to retire the debt, and that the cost basis
evaluation for such issuance shall be set at two cents [$0.02] per share,
equaling a total issuance of eight hundred and thirty three thousand, three
hundred and fifty [833,350] restricted shares.
C.
The
PARTIES, having negotiated in good faith, with a view to resolve the claims
of
OSTROWIAK without formal mediation, arbitration or litigation, agree to the
following.
Incorporation
of Recitals
1. The
contents of the Recitals above are incorporated herein by reference as though
fully set out. The PARTIES waive any rules of construction making the Recitals
inapplicable in construing or enforcing this Agreement.
Terms
and Conditions
2. Settlement
Amount.
After
this Agreement is signed by all the PARTIES, SBCO agrees to take action by
resolution of its board of directors to [1] formally accept the terms of this
Agreement; and, [2] direct its transfer agent to issue eight hundred and thirty
three thousand, three hundred and fifty [833,350] restricted shares in SBCO
as
full and final payment to OSTROWIAK for all sums due and payable to him under
the consulting agreement.
4.
Release
of Claims.
In
further consideration of the mutual covenants hereto, and except as otherwise
provided herein, the PARTIES agree on behalf of themselves their heirs,
executors, administrators, successors, agents, employees, officers, and board
members as the case may be, to irrevocably and unconditionally release and
forever discharge each and the other, their agents, directors, officers,
employees, representatives, insurance carriers, attorneys, divisions,
subsidiaries, affiliates (and agents, directors, officers, employees,
representatives, insurance carriers, and attorneys of such divisions,
subsidiaries, and affiliates), and their predecessors, successors, heirs,
executors, administrators, and assigns, and all persons acting by, through,
under, or in concert with any of them (collectively "Releasees"), of and from
any and all claims, actions, causes of action, suits, debts, charges,
complaints, claims, liabilities, obligations, promises, agreements,
controversies, damages, and expenses (including attorney fees and costs actually
incurred), of any nature whatsoever, known or unknown, in law or equity, arising
out of the facts contained in the Recitals [incorporated by reference herein
as
though fully set out], as well as any other claims based on constitutional,
statutory, common law, or regulatory grounds.
5.
Limitation
of Waiver,
Future
Suits and Proceedings. Except as provided for herein, the PARTIES promise not
to
institute any future suits or proceedings at law or in equity or any
administrative proceedings against each and the other for or on account of
any
claim or cause of action arising out of the facts in the Recitals herein
[incorporated by reference as though fully set out].
6.
Disclaimer
of Liability and Future References.
This
General Release and Settlement Agreement does not constitute and shall not
be
construed as an admission of liability or wrongdoing by any party, its agents,
employees, or successors, with respect to any claims asserted by
OSTROWIAK.
7.
Full
Knowledge and Volition; Civil Code §1542 Waiver.
This is
intended, as a full and complete release and discharge of any or all claims
that
OSTROWIAK may or might have or had against SBCO, and in accepting said sum
and
stated terms and conditions OSTROWIAK does so in full settlement, release and
discharge of any and all such claims, and intends to and does hereby release
and
discharge SBCO of and from any and all liability of any nature whatsoever for
all claims arising out of the Recitals herein, specifically including, but
not
limited to, all contract and consequential damages to OSTROWIAK on account
of
said events alleged in the Recitals, as well as for all consequences, effects
and results thereto and resulting damages to OSTROWIAK, whether the same or
any
circumstances pertaining thereto are now known or unknown to OSTROWIAK or anyone
else, expected or unexpected by OSTROWIAK or anyone else, or have already
appeared or developed or may now be latent or may in the future appear or
develop or become known to OSTROWIAK or anyone else, and all rights under
Section 1542 of the Civil Code of the State of California are hereby expressly
waived by OSTROWIAK, who understands, and has had the opportunity to meet and
confer with counsel of his choice as to the effects of waiving Section 1542,
that said Section provides 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."
8.
Resolution
of All Claims.
OSTROWIAK acknowledges and understands that this Agreement specifically includes
and resolves any and all claims that he may individually have against SBCO
regarding the subject matter hereof.
2
9.
Materiality
of All Conditions and Obligations.
Except
as otherwise expressly provided in this agreement the PARTIES understand and
acknowledge that all of the conditions and obligations in this Agreement are
material and that the non-occurrence or breach of any such condition or
obligation by a party is not allowed and shall result in the other party being
entitled to assert any and all rights it may have in law or equity.
10.
Complete
Agreement.
This
General Release and Settlement Agreement contains the entire Agreement between
OSTROWIAK and SBCO and there is no agreement on the part of either PARTY to
do
any act or thing other than as expressly stated in this Agreement. There will
also be no modifications or amendments to this Agreement unless they are in
writing, signed by all of the PARTIES.
11.
Counterpart
Originals.
This
Agreement may be signed in counterparts and facsimile signatures are agreed
to
be as effective as the original for purposes of this Agreement. It is also
agreed by the PARTIES that counterpart signatures, once collected and exchanged
unilaterally, shall all be collectively construed to be a complete document
when
combined with other counterpart signatures.
12.
Governing
Law; Jurisdiction.
This
Agreement shall be construed and enforced under California law. The PARTIES
agree that the Superior Court for the State of California, County of San Diego,
shall have jurisdiction over any dispute arising over the terms, conditions,
application or interpretation of this Agreement. Should any legal dispute
between the PARTIES arise, and legal action is commenced, then the prevailing
party to any such litigation shall recover, as an element of costs, their
reasonable attorney fees.
13.
Corporate
Authority.
All
necessary corporate action has been taken to enter into this Agreement and
comply with its terms. The corporate and other business entities who execute
this Agreement on behalf of the PARTIES have complete and sole authority to
enter into this Agreement on behalf of their respective entities.
14.
Notices;
Delivery.
Any
covenants herein requiring SBCO to deliver stock certificates to OSTROWIAK
shall
be made to 000 Xxx xx xx Xxxxx, Xxx. 000, Xxxxxx Xxxxx, XX 00000, or such other
address as OSTROWIAK may direct.
15.
ACKNOWLEDGMENT.
THE
PARTIES ACKNOWLEDGE THAT THEY HAVE CAREFULLY READ THIS GENERAL RELEASE AND
SETTLEMENT AGREEMENT AND UNDERSTAND ITS CONTENTS AND CONSEQUENCES; THAT EACH
HAS
BEEN GIVEN THE OPPORTUNITY TO CONSULT WITH AN ATTORNEY OF CHOICE; THATOSTROWIAK
UNDERSTANDS THE EFFECT OF HIS WAIVER OF CALIFORNIA CIVIL CODE SECTION 1542;
THAT
THE ONLY PROMISES MADE TOOSTROWIAK TO SIGN THIS AGREEMENT ARE THOSE STATED
IN
THE AGREEMENT; THATOSTROWIAK HAS HAD SUFFICIENT TIME TO REVIEW THIS AGREEMENT;
AND, THATOSTROWIAK IS SIGNING THIS AGREEMENT KNOWINGLY AND VOLUNTARILY, WITHOUT
ANY COERCION, OR DURESS.OSTROWIAK ALSO ACKNOWLEDGES THAT HE HAS NOT RELIED
ON
ANY REPRESENTATIONS, PROMISES, OR AGREEMENT OF ANY KIND MADE TO HIM IN
CONNECTION WITH HIS DECISION TO ACCEPT THE SETTLEMENT EXCEPT THOSE SET FORTH
IN
THIS DOCUMENT.
3
"OSTROWIAK”
“XXXXX
XXXXXXXXX"
|
By:
|
|
Dated:
JUNE 1, 2008
|
|
XXXXX
XXXXXXXXX
|
"SBCO”
“THE
SMALL BUSINESS COMPANY, INC."
|
By:
|
|
Dated:
June 1, 2008
|
|
THE
SMALL BUSINESS COMPANY, INC.
|
||
|
By:
[Printed Name]: XXXXX XXXXXX
|
||
|
Position:
PRESIDENT, CHIEF EXECUTIVE OFFICER
|
||
4
