EXHIBIT 10.1
SETTLEMENT AND RELEASE AGREEMENT
This Settlement and Release Agreement (the "Agreement") is made and
entered into as of August 16, 1999, by and between Numex Corporation, a Delaware
corporation (the "Company"), and Xxxxxxx X. Xxxxx, an individual ("Xxxxx"), on
the one hand; and Xxxx X. Xxxxxxxx, an individual ("Xxxx Xxxxxxxx"), and Xxxxx
X. Xxxxxxxx, an individual ("Xxxxx. Xxxxxxxx"), on the other hand; with
reference to the following:
A. Xxxx Xxxxxxxx is currently a director of the Company and the
Company's Chairman pursuant to that certain Employment Agreement, dated as of
April 12, 1999, between the Company and Xxxx Xxxxxxxx (the "Employment
Agreement").
B. Xxxxx Xxxxxxxx currently holds the positions of Secretary and a
director with the Company.
X. Xxxxx, Xxxx Xxxxxxxx and Xxxxx Xxxxxxxx are stockholders of the
Company and have entered entered into that certain Stockholders Agreement, dated
as of April 12, 1999, by and among the Company, Xxxxx, Xxxx Xxxxxxxx and Xxxxx
Xxxxxxxx, to provide for the orderly management of the Company.
D. Xxxx Xxxxxxxx and Xxxxx Xxxxxxxx and the Company have agreed that
Xxxx Xxxxxxxx and Xxxxx Xxxxxxxx shall resign all positions they each
respectively hold with the Company and the Employment Agreement shall be
terminated, effective as of the date hereof.
E. The Company, Xxxxx, Xxxx Xxxxxxxx and Xxxxx Xxxxxxxx have agreed
that the Stockholders Agreement shall be terminated, effective as of the date
hereof.
F. Xxxx Xxxxxxxx and Xxxxx Xxxxxxxx and the Company desire to resolve
(i) any claims or potential claims Xxxx Xxxxxxxx and Xxxxx Xxxxxxxx may have
against the Company, and (ii) any claims or potential claims the Company may
have against Xxxx Xxxxxxxx and Xxxxx Xxxxxxxx.
NOW, THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereby agree as follows:
1. TERMINATION OF EMPLOYMENT. The Employment Agreement and the
employment of Xxxx Xxxxxxxx under the Employment Agreement is hereby terminated
in all respects and shall be of no further force or effect.
2. RESIGNATION. Upon execution hereof, Xxxx Xxxxxxxx and Xxxxx Xxxxxxxx
shall each sign and submit to the Company the form of resignation attached
hereto as Exhibit A.
3. TERMINATION OF STOCKHOLDERS AGREEMENT. The Stockholders Agreement is
hereby terminated in all respects and shall be of no further force or effect.
4. PAYMENTS. The Company shall make the following payments (which
payments aggregate $114,400) to Xxxx Xxxxxxxx:
(a) $58,150 upon the execution hereof;
(b) $6,250 on or before August 16, 1999; and
(c) $50,000 on the earlier of: (i) November 30, 1999, or (ii) the
closing of a financing for the Company with gross proceeds of an amount in
excess of $2,500,000.
5. REGISTRATION RIGHTS. The Company shall use its best efforts to
ensure that the resale of (i) the common stock, par value $.10 per share, of the
Company (the "Common Stock") held by Xxxx Xxxxxxxx individually or in his
capacity as trustee, as of the date hereof, and (ii) and the Common Stock
issuable upon the exercise of the stock options (the "Options") of the Company
granted to Xxxx Xxxxxxxx on December 18, 1997, shall be included in the
registration statement covering the resale of the shares of Common Stock
issuable upon conversion of the Company's Series B Preferred Stock issued in
April 1999, which registration statement shall be filed as soon as reasonably
practicable after the date hereof.
6. TRANSFER OF OPTIONS. Upon satisfactory assurances to the Company
(which may include an opinion of counsel acceptable to the Company) that
registration under the Act and applicable state laws is not required for the
transfer of the Options covered by this Section 6, the Company shall cause the
transfer of the Options of the Company currently registered in the name of Xxxx
Xxxxxxxx to Xxxxx Xxxxxxxx on the books and records of the Company.
7. INDEMNIFICATION. The Company shall indemnify, defend and hold
harmless and in all respects make whole Xxxx Xxxxxxxx and Xxxxx Xxxxxxxx from
and against any and all claims, demands, liabilities, damages, judgments and
payments, including reasonable attorney fees ("Losses"), which may be incurred
or suffered by Xxxx Xxxxxxxx or Xxxxx Xxxxxxxx or to which either one of them
may be subject, which may arise out of or result from their acting in the
capacities of officers and/or directors of the Company, for the period
commencing April 12, 1999 and ending as of the date hereof. Such indemnification
shall include, but is not limited to, any Losses suffered as a result of the
Company's Form 10-KSB as filed with the Securities and Exchange Commission on
July 13, 1999.
8. RELEASE BY XXXX XXXXXXXX AND XXXXX XXXXXXXX.
(a) Excepting obligations of the Company under this Agreement, Xxxx
Xxxxxxxx and Xxxxx Xxxxxxxx, for themselves and their respective successors and
assigns, do hereby unconditionally release and forever discharge the Company and
each of its subsidiaries, parents, affiliates and related entities and each of
their respective directors, officers, shareholders, partners, limited partners,
members, managers, supervisors, employees, administrators, attorneys and agents
(collectively, "Company Releasees") from all rights, claims, actions and suits
of all kinds and
2
descriptions whatsoever (collectively, "Claims"), whether known or unknown,
that Xxxx Xxxxxxxx or Xxxxx Xxxxxxxx may have against Company Releasees
arising prior to the date hereof.
(b) Xxxx Xxxxxxxx and Xxxxx Xxxxxxxx agree that the releases contained
in Section 8(a) include all Claims of every kind and nature, past or present,
known or unknown, suspected or unsuspected, which Xxxx Xxxxxxxx or Xxxxx
Xxxxxxxx now has against any Company Releasee and that Xxxx Xxxxxxxx and Xxxxx
Xxxxxxxx further expressly waive any and all rights, to the fullest possible
extent, that he may have under Section 1542 of the California Civil Code, which
provides:
"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 naturally affected his settlement with the
debtor."
(c) The filing or bringing by Xxxx Xxxxxxxx or Xxxxx Xxxxxxxx of any
claim, demand, obligation or cause of action against any Company Releasee
hereunder in connection with any matter released hereunder shall constitute a
breach of this Agreement.
9. RELEASE BY THE COMPANY.
(a) Excepting obligations of Xxxx Xxxxxxxx and Xxxxx Xxxxxxxx under
this Agreement, the Company on its own behalf and on behalf of its successors
and assigns, parents, affiliates and related entities and each of their
respective directors, officers, shareholders, partners, limited partners,
members, managers, supervisors, employees, administrators, attorneys and agents,
hereby releases Xxxx Xxxxxxxx and Xxxxx Xxxxxxxx and their dependents, heirs,
executors, successors and assigns ("Xxxxxxxx Releasees"), from all Claims
whether known or unknown, that the Company may have against Xxxx Xxxxxxxx and
Xxxxx Xxxxxxxx arising prior to the date hereof.
(b) The Company agrees that the releases contained in Section 9(a)
include all Claims of every kind and nature, past or present, known or unknown,
suspected or unsuspected, which the Company now has against any Xxxxxxxx
Releasee and that the Company further expressly waives any and all rights, to
the fullest possible extent, that it may have under Section 1542 of the
California Civil Code, which provides:
"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 naturally affected his settlement with the
debtor."
(c) The filing or bringing by the Company of any claim, demand,
obligation or cause of action against any Xxxxxxxx Releasee hereunder in
3
connection with any matter released hereunder shall constitute a breach of this
Agreement.
10. ABSENCE OF ASSIGNMENT. Each of Xxxx Xxxxxxxx, Xxxxx Xxxxxxxx and
the Company represents and warrants that he or it has not in any way heretofore
transferred by agreement, operation of law or otherwise any Claim against any
Company Releasee or Xxxxxxxx Releasee, as the case may be, which is to be
released hereunder.
11. ACKNOWLEDGEMENT. Xxxx Xxxxxxxx and Xxxxx Xxxxxxxx and the Company
acknowledge that neither this Agreement nor anything contained herein shall be
admissible in any proceeding as evidence of or an admission by the Company, Xxxx
Xxxxxxxx, Xxxxx Xxxxxxxx any other Company Releasee or any other Xxxxxxxx
Releasee of any wrongdoing or violation of its respective policies and
procedures, or of any law or regulation. Notwithstanding the foregoing, this
Agreement may be introduced into a proceeding solely for the purpose of
enforcing this Agreement.
12. CONFIDENTIALITY. Xxxx Xxxxxxxx, Xxxxx Xxxxxxxx, Xxxxx and the
Company each hereby covenant and agree to keep all of the terms and conditions
of this Agreement confidential except as required by any federal, state or local
law, and to cause their respective dependents, heirs, executors, successors,
assigns, agents, representatives and attorneys, as applicable, to maintain the
confidentiality thereof.
13. NO ADMISSION. Xxxx Xxxxxxxx and Xxxxx Xxxxxxxx acknowledge and
agree that this Agreement is not to be construed as an admission by the Company
of any liability whatsoever. The Company acknowledges and agrees that this
Agreement is not to be construed as an admission by Xxxx Xxxxxxxx or Xxxxx
Xxxxxxxx of any liability whatsoever.
14. NOTICES. Any and all notices or other communications required or
permitted to be given under any of the provisions of this Agreement shall be in
writing and shall be deemed to have been duly given when personally delivered or
mailed by first class registered mail, return receipt requested, or by
commercial courier or delivery service, or by facsimile, addressed to the
parties at the addresses set forth below (or at such other address as any party
may specify by notice to all other parties given as aforesaid):
(a) if to the Company or Xxxxx, to:
Numex Corporation
00000 Xxxxx Xxxxxx Xxxx., Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
4
With a copy to:
Loeb & Loeb LLP
0000 Xxxxxxxx Xxxx., Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
(b) if to Xxxx Xxxxxxxx to:
000 X. Xxxx Xxxxx, #000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
With a copy to:
Xxxxxxx, Xxxxxxxx, Xxxx, Xxxxxxxx & Xxxxxxxx
0000 Xxxxxxxx Xxxx., Xxxxxxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
(c) if to Xxxxx Xxxxxxxx to:
000 X. Xxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
15. FURTHER ASSURANCES. The parties to this Agreement shall, from time
to time, promptly execute and deliver such further instruments, documents and
papers and perform such further acts as may be necessary to carry out and effect
the terms of this Agreement.
16. SUCCESSORS AND ASSIGNS; THIRD PARTY BENEFICIARIES. This Agreement
is binding upon and shall inure to the benefit of the parties hereto and their
respective assignors, predecessors in interest, successors, assigns, heirs and
personal representatives. Nothing in this Agreement, whether express or implied,
is intended to confer any rights or remedies under or by reason of this
Agreement on any persons other than the parties to this Agreement and their
respective successors and assigns, nor is anything in this Agreement intended to
relieve or discharge the obligation or liability of any third persons to any
party to this Agreement.
17. ATTORNEYS' FEES. Should any party to this Agreement institute any
action or proceeding (including, without limitation, any arbitration proceeding)
to enforce any provision hereof, or for damages by reason of any alleged breach
of any provision of this Agreement, or for a declaration of such party's rights
or obligations hereunder, or for any other judicial remedy, the prevailing party
shall recover from the losing party all attorneys' fees, costs and expenses
actually paid by the prevailing party to its attorneys for the services rendered
the party prevailing in any such action or proceeding.
5
18. WAIVER; AMENDMENT. No provision in this Agreement may be waived
unless in writing signed by all parties to this Agreement. Waiver of any one
provision shall not be deemed to be a waiver of any other provision. This
Agreement may be modified or amended only by a written agreement executed by all
of the parties to this Agreement.
19. SEVERABILITY. If any provision of this Agreement is determined by a
court of competent jurisdiction to be invalid or unenforceable, in whole or in
part, the remaining provisions, and any partially invalid or unenforceable
provisions, to the extent valid and enforceable, shall nevertheless be binding
and valid and enforceable. Notwithstanding the foregoing severability provision,
the parties reserve the right to rescind this Agreement in the event that a
court of competent jurisdiction holds that a provision of this Agreement is
unenforceable, in whole or in part, provided that such unenforceability
constitutes a material failure of consideration for the parties to this
Agreement entering into this Agreement.
20. ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding among the parties hereto with respect to the subject matter
hereof, and supersedes any and all prior and contemporaneous oral and written
agreements and understandings with respect to such subject matter. No party may
rely on any representation, warranty, condition, understanding or agreement of
any kind with respect to the subject matter hereof other than those contained
herein.
21. GOVERNING LAW; VENUE. This Agreement shall be construed in
accordance with the internal laws of the State of California, without regard to
the conflicts of laws principles thereof. Any and all legal proceedings to
enforce this Agreement shall be brought in the state or federal courts sitting
in Los Angeles, California, the parties hereto hereby waiving any claim or
defense that such forum is not convenient or proper. Each party hereby agrees
that any such court shall have in personam jurisdiction over it and consents to
service of process in any manner authorized by California law.
22. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which,
together, shall be deemed to constitute a single document.
23. CONSTRUCTION. When necessary herein, all terms used in the singular
shall apply to the plural, and vice versa; the present tense shall include the
past and future tense, and vice versa; and the masculine shall include the
feminine and the neuter, and vice versa. The language in all parts of this
Agreement shall in all cases be construed simply, according to its fair meaning,
and not strictly for or against any of the
6
parties hereto. Without limitation, there shall be no presumption against any
party on the ground that such party was responsible for drafting this Agreement
or any part thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
NUMEX CORPORATION,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxx
--------------------
Its: President
--------------------
/s/ Xxxxxxx X. Xxxxx
--------------------
XXXXXXX X. XXXXX
/s/ Xxxx X. Xxxxxxxx
--------------------
XXXX X. XXXXXXXX
/s/ Xxxxx X. Xxxxxxxx
---------------------
XXXXX X. XXXXXXXX
7
EXHIBIT A
, 1999
To the Board of Directors of
Numex Corporation
I hereby resign all positions with Numex Corporation effective as of
the date hereof.
----------------------------------
Xxxx X. Xxxxxxxx/Xxxxx X. Xxxxxxxx
1
