SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE
This Settlement Agreement and Mutual General Release (this "Settlement and
Release") is made and entered into this ___ day of January, 2001 by and between
Xxxxx X. Xxx ("Xxxxx"), Xxxxxxx X. Xxx ("Xxxxxxx" and Kevin's mother); Chicago
Mortgage and Financial Services, Inc. a/k/a Chicago Mortgage Company, Inc. a/k/a
Chicago Mortgage Company or such similar name ("CMFSI"); Chicago Mortgage and
Financial Services, Inc. Profit Sharing Plan & Trust "CMFSI Profit Sharing
Plan"); Cambridge Financial Services, Inc. a/k/a Cambridge Financial or such
similar name "Cambridge Financial"); CorCapital Financial Partners L.L.C. a/k/a
CorCapital Financial Corp or such similar name ("CorCapital"); or any other
entity, pseudonym, nominee or other name used by any of the foregoing, and each
of their respective officers, directors, shareholders, partners, members,
employees, agents, attorneys, representatives, beneficiaries, predecessors,
successors and assigns (collectively, the Koy Group") and SHC Corp. (f/k/a
VictorMaxx Technologies, Inc.) an Illinois corporation ("VMTI"); Sonoma Holding
Corp., an Illinois corporation ("Sonoma"); and any Sonoma related, affiliated or
subsidiary companies; Xxxxxxxx X. Xxxxxx ("Xxxxx"); Xxxxx Xxxxxxxx ("Xxxxx");
and their respective officers, directors, shareholders, partners, members,
employees, agents, attorneys, representatives, predecessors, successors and
assigns (collectively, the "VMTI Group").
WHEREAS, on May 15, 1998, the Koy Group and the VMTI Group entered into a
Settlement Agreement (the "Koy Settlement Agreement") for the stated purpose of
compromising and settling all allegations and disputed issues and any other
potential claims, allegations and disputes between them;
WHEREAS, prior to the execution of the Koy Settlement Agreement, litigation
was commenced in the Circuit Court of Xxxx County by Xxxxx against certain of
the VMTI Group to collect an alleged $25,000 promissory note; Case Xx. 00 XX
000000 (the "State Litigation");
WHEREAS, also prior to the execution of the Koy Settlement Agreement, some
members of the VMTI Group filed a lawsuit in the United States District Court
for the Northern District of Illinois, seeking injunctive relief against Xxxxx,
case No. 98 C 1697 (the "Federal Litigation");
WHEREAS, in connection with and as part of the Koy Settlement Agreement,
and concurrently with the execution of the Koy Settlement Agreement, the Koy
Group and the VMTI Group entered into an Escrow Agreement and Voting Trust (the
"Voting Trust");
WHEREAS, disputes have arisen between the Koy Group and the VMTI Group in
connection with the Koy Settlement Agreement and other matters; and
WHEREAS, in order to avoid the cost of continuing litigation and without
admitting any liability, the Koy Group and the VMTI Group have agreed to settle
and compromise, on the terms set forth herein, all claims, disputes and issues
between them (except for Shareholder Claims [as defined hereinafter], if any).
1
NOW THEREFORE, in consideration of the foregoing and of the mutual promises
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. OBLIGATIONS OF THE KOY GROUP. Concurrently with the execution of this
Settlement and Release, the Koy Group agrees to immediately dismiss or cause to
be dismissed with prejudice any and all claims made by any of the Koy Group in
the Federal Litigation and the State Litigation and in any other litigation, if
any, which any of the Koy Group has filed against any of the VMTI Group. The
VMTI Group agrees to cooperate with the Koy Group to take such actions as may be
required of the VMTI Group in order to dismiss any such litigation or claims.
2. OBLIGATIONS OF THE VMTI GROUP. Concurrently with the execution of this
Settlement and Release, the VMTI Group
agrees:
a. to issue and deliver to CMFSI, 1,300,000 restricted shares of VMTI's
$.001 par value common stock (the "Settlement Shares"), which will be stamped
with the Company's standard restrictive legend placed on its restricted
securities (a copy of which has been previously delivered to the Koy Group); and
b. to release to the Koy Group the shares currently held in the Voting
Trust and which are more fully described on EXHIBIT A attached hereto and made a
part hereof (the "Escrow Shares") and the 245,799 shares identified in Paragraph
6(b)(iv). Xxxxx agrees that he will accept the Escrow Shares on behalf of the
persons whose names appear on each of the certificates representing the Escrow
Shares. Each of the Koy Group hereby agrees to indemnify and hold each of the
VMTI Group and any current or former trustee or escrowee under the Voting Trust
(each such person is hereinafter referred to as an "escrow Trustee") harmless
from any action, damage, loss, claim, or liability of any kind whatsoever
arising from or in connection with the distribution of the Escrow Shares to the
Koy Group pursuant to this paragraph.
3. TERMINATION OF VOTING TRUST. The parties agree that upon execution of
this Settlement and Release, the Voting Trust shall be terminated and be of no
further force and effect. To the extent reasonably requested by the other party,
each party agrees to execute such documentation as may be requested in order to
effectuate or confirm termination of the Voting Trust.
4. REPRESENTATIONS AND WARRANTIES OF THE VMTI GROUP. Each of the members of
the VMTI Group represents and warrants to the Koy Group as follows:
a. ORGANIZATION, GOOD STANDING. VMTI is a corporation duly organized,
validly existing and in good standing under the laws of the State of Illinois
and has all requisite corporate and other power and all necessary permits,
certificates, licenses, approvals and other authorizations required to carry on
and conduct its business and to own, lease, use and operate its properties at
the locations where VMTI does business and in the manner in which such business
is presently carried on and conducted or where the lack thereof would have a
material adverse
2
effect on VMTI. As of December 29, 2000, the Company, to its knowledge, has
filed all requisite annual and quarterly reports with the Securities and
Exchange Commission.
b. AUTHORITY. Each of the VMTI Group has full power and authority to
execute, deliver and perform this Settlement and Release and any other documents
and instruments to be executed by the any of VMTI Group pursuant to this
Settlement and Release without the consent of any other person. This Settlement
and Release, and the transactions contemplated by it, have been validly approved
and authorized by the Board of Directors of VMTI and its officer or officers
executing this Settlement and Release have been duly authorized for that
purpose.
c. VALID AND BINDING AGREEMENT. This Settlement and Release constitutes a
valid and binding agreement of each of the VMTI Group, enforceable against them
in accordance with its terms. Neither the execution and delivery of this
Settlement and Release or the performance by the VMTI Group hereunder (i)
violates or will violate any statute or law or any rule, regulation or order of
any court or governmental authority applicable to the VMTI Group , or (ii)
violates or will violate, or conflicts with or will conflict with, or
constitutes a default under or will constitute a default under, any contract,
commitment or agreement to which any of the VMTI Group is a party or by which
any of the VMTI Group is bound.
5. REPRESENTATIONS AND WARRANTIES OF THE KOY GROUP. Each of the Koy Group
represents to the VMTI Group as follows:
a. ORGANIZATION, GOOD STANDING. Each of the Koy Group, if applicable, is
duly organized, validly existing and in good standing under the laws of the
State of Illinois and has all requisite power and all necessary permits,
certificates, licenses, approvals and other authorizations required to carry on
and conduct its respective business and to own, lease, use and operate its
respective properties at the locations where it does business and in the manner
in which such business is presently carried on and conducted.
b. AUTHORITY. Each of the Koy Group has full power and authority to
execute, deliver and perform this Settlement and Release and all other documents
and instruments to be executed by any of the Koy Group pursuant to this
Settlement and Release without the consent of any other person. This Settlement
and Release, and the transactions contemplated by it, have been validly approved
and authorized by each of the Koy Group and each its officer or officers
executing this Settlement and Release have been duly authorized for that
purpose.
c. VALID AND BINDING AGREEMENT. This Settlement and Release constitutes a
valid and binding agreement of each of the Koy Group, enforceable against them
in accordance with its terms. Neither the execution and delivery of this
Settlement and Release or the performance by any of the Koy Group hereunder (i)
violates or will violate any statute or law or any rule, regulation or order of
any court or governmental authority applicable to any of the Koy Group, or (ii)
violates or will violate, or conflicts with or will conflict with, or
constitutes a default under or will constitute a default under, any contract,
commitment or agreement to which any of the Koy Group is a party or by which any
of the Koy Group is bound.
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d. AWARENESS OF OTHER CLAIMS. Each of the Koy Group represents and warrants
to each of the VMTI Group that it is not aware of any additional claims it may
have against any of the VMTI Group as of the date of this Agreement.
6. RELEASE OF CLAIMS.
a. In consideration of the promises of the VMTI Group under this Settlement
and Release, each of the Koy Group hereby unconditionally releases and forever
discharges each of the VMTI Group, their successors and assigns, and their
respective officers, directors, shareholders, partners, members, employees,
agents, and attorneys, past and present, ("Released VMTI Parties," individually
each is a "Released VMTI Party"), from each and every action, charge, claim,
right, liability or demand of any kind or nature, known or unknown, that any of
the Koy Group had, now has or may through the effective date of this Settlement
and Release have against Contaldo, Xxxxxx or VMTI or any other Released VMTI
Party based on actions or events prior to the effective date of this Settlement
and Release, except for claims brought solely in the capacity of a shareholder
("Shareholder Claims"). Without limiting the generality of the foregoing,
specifically included in this release and discharge are each and every action,
charge, claim, right, liability or demand of any kind or nature, known or
unknown, any of the Koy Group had, now has, or may have through the effective
date of this Settlement and Release, arising under any law, constitution, rule,
regulation, statute, or common law theory, whether in tort, contract, equity, or
otherwise, including without limitation any claims that any of the Koy Group is
entitled to any shares or additional shares of VMTI stock arising under the
Settlement Agreement. Any action, charge, claim, right, liability, demand or
other legal proceeding released and discharged under this Section is hereinafter
referred to as a "Koy Claim".
b. Without limiting the generality of the foregoing, each of the Koy Group
hereby waives and otherwise relinquishes all right, title and interest in and to
any shares of stock, warrants, options and other securities of any kind of VMTI
including without limitation any shares described in the Koy Settlement
Agreement, except for the following shares: (i) the 1,882,567 shares issued in
the name of CMFSI, or portion thereof which remains in the possession and
ownership of any of the Koy Group and which are identified in Paragraph 2(A)(i)
of the Koy Settlement Agreement, (ii) the Settlement Shares, (iii) the shares
identified on EXHIBIT A attached hereto including the 245,799 shares reflected
as being owned by the records of the Company's stock transfer agent and further
referenced in (iv) below and (iv) the 245799 shares identified in (iii) above
which are reflected as owned by Xxxxx on the records of VMTI stock transfer
agent, the certificate which the parties agree has been lost and which VMTI
agrees to have reissued to the CMFSI Profit Sharing Plan upon delivery by Xxxxx
to VMTI of a form of Lost Certificate Affidavit acceptable to VMTI and its
counsel, together with any other reasonable documentation required by VMTI stock
transfer agent to issue a replacement certificate, and any amounts required
pursuant to such stock transfer agent's bonding requirements in connection with
the issuance of such certificate. Without limiting the foregoing, each of the
Koy Group expressly waives and disclaims any right, title or interest in or to
VMTI stock certificate number 501 issued in the name of Xxxxx for 2,627 shares,
or any successor shares which such certificate would purportedly have generated
following any stock split or similar action which may have occurred following
the date of issuance of certificate number 501 and hereby consents to its
cancellation.
4
c. Each of the Koy Group further agrees that it will not instigate, advise
or encourage any other person, group of persons, or any entity to file suit
against any of the VMTI Group or any other Released VMTI Party, and that it will
not assist in any action against any of the VMTI Group or any other Released
VMTI Party, except in response to any court issued subpoena, notice of
deposition or inquiry from a governmental agency, and it further represents and
warrants that it has not filed any legal or administrative action of any kind
against any of the VMTI Group or any other Released VMTI Party and except for
Shareholder Claims.
d. In consideration of the promises of the Koy Group under this Settlement
and Release, each of the VMTI Group hereby unconditionally releases and forever
discharges each of the Koy Group, their successors and assigns, and their
respective officers, directors, shareholders, partners, members, employees,
agents, and attorneys, past and present, ("Released Koy Parties," individually
each is a "Released Koy Party"), from each and every action, charge, claim,
right, liability or demand of any kind or nature, known or unknown (other than
Shareholder Claims), that any of the VMTI Group had, now has or may through the
effective date of this Settlement and Release have against any of the Koy Group
or any other Released Koy Party based on actions or events prior to the
effective date of this Settlement and Release. Without limiting the generality
of the foregoing, specifically included in this release and discharge are each
and every action, charge, claim, right, liability or demand of any kind or
nature, known or unknown, any of the VMTI Group had, now has, or may have
through the effective date of this Settlement and Release, arising under any
law, constitution, rule, regulation, statute, or common law theory, whether in
tort, contract, equity, or otherwise, including without limitation any shares of
stock of VMTI previously delivered to Koy. Any action, charge, claim, right,
liability, demand or other legal proceeding released and discharged under this
Section is hereinafter referred to as a "VMTI Claim".
e. Each of the VMTI Group further agrees that it will not instigate, advise
or encourage any other person, group of persons, or any entity to file suit
against any of the Koy Group or any other Released Koy Party, and that it will
not assist in any action against any of the Koy Group or any other Released Koy
Party, except in response to any court issued subpoena, notice of deposition or
inquiry from a governmental agency, and it further represents and warrants that
it has not filed any legal or administrative action of any kind against any of
the Koy Group or any other Released Koy Party and except for Shareholder Claims.
7. AGREEMENT NOT TO XXX.
a. In consideration of the promises of the parties under this Settlement
and Release, each of the VMTI Group agrees never to institute, directly or
indirectly, any action or proceeding of any kind against any of the Koy Group or
any other Released Koy Party to enforce a Claim, except for an action to enforce
this Settlement and Release.
b. In consideration of the promises of the parties under this Settlement
and Release, each of the Koy Group agrees never to institute, directly or
indirectly, any action or proceeding of any kind against any of the VMTI Group
or any other Released VMTI Party to enforce a
5
Claim, except for an action or proceeding to enforce this Settlement and Release
or to enforce a Shareholder Claim.
8. AGREEMENT AS COMPLETE DEFENSE. In consideration of the promises of the
parties under this Settlement and Release, the parties hereby agree that if any
party files a VMTI Claim or Koy Claim or a VMTI Claim or Koy Claim is filed on a
party's behalf, except for an action or proceeding specifically and expressly
not released by this Settlement and Release, this Settlement and Release shall
constitute a complete defense to such VMTI Claim or Koy Claim.
9. COSTS AND ATTORNEYS' FEES. The Koy Group and the VMTI Group agree that
each shall bear its own costs and attorneys' fees in connection with entering
into this Settlement and Release and the circumstances underlying this
Settlement and Release. In the event of litigation to enforce the terms of this
Settlement and Release, the prevailing party shall be entitled to recover from
the non-prevailing party reasonable attorneys' fees and court costs incurred.
10. NO ADDITIONAL CLAIMS. Each of the Koy Group understands and agrees that
it has no additional claims against Contaldo, Donati, any of the VMTI Group or
any other Released VMTI Party other than those specified herein and any
Shareholder Claims. Each of the VMTI Group understands and agrees that they have
no additional claims against Xxxxx or any of the Koy Group other than those
specified herein.
11. DISCLAIMER OF LIABILITY. The parties understand and agree that this
Settlement and Release does not constitute and shall not be construed as an
admission of liability or wrongdoing by any party or any other Released Party
with respect to any claims asserted by any party, and that each party and the
other Released Parties expressly denies that they collectively have, that more
than one of them have, or that any one of them has done anything wrong or
unlawful regarding the other parties.
12. SPECIAL COVENANT OF THE KOY GROUP. Each of the Koy Group covenants and
agrees that following the execution of this Settlement and Release, he will
provide reasonable cooperation to the VMTI Group (at no cost to the VMTI Group)
in connection with any actions required to terminate the Voting Trust Agreement,
if any, and agrees to execute such documents as may be reasonably requested by
the VMTI Group in order to carry out the purposes of this Settlement and
Release, and any other matters requiring any of the Koy Group's cooperation, if
any. In addition, each of the Koy Group hereby agrees, that he, she or it will
not, before May 15, 2003: (i) acquire, by purchase or otherwise, or offer or
agree to acquire or obtain the right to acquire or propose to acquire or
announce any intention or plan to acquire or announce any request for permission
to acquire, directly or indirectly, any additional shares of the stock of VMTI
or any of its successor entities ("VMTI Stock") and/or any rights, warrants or
obligations convertible into VMTI Stock, except, in any case, such number of
shares as would be required to be acquired by the Koy Group in order to maintain
its ownership percentage of the Company as of the date of this Agreement and
after giving effect to the issuance of the 1,300,000 shares issuable to the Koy
Group hereunder; (ii) acquire from any person any claim, whether monetary or
otherwise, that such person may have against VMTI or any of its subsidiaries or
affiliates.
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13. APPLICABLE LAW. This Settlement and Release shall be governed and
construed in accordance with the internal laws of the State of Illinois to the
extent state law is applicable.
14. BINDING EFFECT. This Settlement and Release shall be binding upon the
heirs, administrators, executors, successors and assigns of the VMTI Group and
the Koy Group.
15. NO RELIANCE ON OUTSIDE PROMISES. The parties acknowledge that they have
not relied upon any promises made by any party or by any other Released Party,
other than those specifically contained herein, as an inducement to execute this
Settlement and Release.
16. ENFORCEABILITY. If any term or provision, or any part of any term or
provision of this Settlement and Release is held unenforceable, it shall be
severed as narrowly as possible and the remaining terms and provisions shall be
enforced in accordance with the tenor of this Settlement and Release.
17. COMPLETE AGREEMENT. This Settlement and Release contains the entire
understanding between the VMTI Group and the Koy Group and supersedes all prior
agreements and understandings relating to the subject matter hereof. Without
limiting the foregoing, each of the Koy Group expressly acknowledges that the
Koy Settlement Agreement is superceded hereby and the purported anti-dilution
provisions contained in Paragraph 2(H) of the Koy Settlement Agreement are no
longer of any force and effect.
18. COUNTERPARTS. This Settlement and Release may be executed in
counterparts, each of which shall be deemed an original and shall, when taken
together, be deemed to be one and the same Settlement Agreement and Release.
IN WITNESS WHEREOF, the parties have executed this Settlement and Release
this 1st day of January, 2001.
XXXXX X. XXX:
/s/ Xxxxx X. Xxx [NOTARY /s/ Xxxxxxx Xxxxxxxxx 1-1-01
--------------------------------------- SEAL] ----------------------
Notary Public
XXXXXXX X. XXX:
/s/ Xxxxxxx X. Xxx [NOTORY /s/ Xxxxxxx Xxxxxxxxx 1-1-01
--------------------------------------- SEAL] ----------------------
Notary Public
CHICAGO MORTGAGE AND FINANCIAL SERVICES, INC.
a/k/a CHICAGO MORTGAGE COMPANY, INC.
a/k/a CHICAGO MORTGAGE COMPANY:
By: /s/ Xxxxxxx X. Xxx [NOTARY /s/ Xxxxxxx Xxxxxxxxx 1-1-01
---------------------------------- SEAL] ----------------------
Its: ________________________________ Notary Public
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CHICAGO MORTGAGE AND FINANCIAL SERVICES, INC.
PROFIT SHARING PLAN AND TRUST
By: /s/ Xxxxxxx X. Xxx [NOTARY /s/ Xxxxxxx Xxxxxxxxx 1-1-01
---------------------------------- SEAL] ----------------------
Its: ________________________________ Notary Public
CAMBRIDGE FINANCIAL SERVICES, INC.
a/k/a CAMBRIDGE FINANCIAL
By: [Illegible] [NOTARY /s/ Xxxxxxx Xxxxxxxxx 1-1-01
---------------------------------- SEAL] -----------------------
Its: ________________________________ Notary Public
CORCAPITAL FINANCIAL PARTNERS L.L.C.
a/k/a CORCAPITAL FINANCIAL CORP.
By: [Illegible] [NOTARY /s/ Xxxxxxx Xxxxxxxxx 1-1-01
---------------------------------- SEAL] -----------------------
Its: ________________________________ Notary Public
SONOMA HOLDING CORP.
By: [Illegible] [NOTARY /s/ Xxxxxxx Xxxxxxxxx 1-1-01
---------------------------------- SEAL] -----------------------
Its: _________________________________ Notary Public
SHC CORP. (a/k/a Sonoma Holding Corp.)
(f/k/a Victormaxx Technologies, Inc.)
By: __________________________________
Its: _________________________________ -------------------
Notary Public
XXXXX X. XXXXXXXX, individually:
-------------------------------------- -------------------
Notary Public
XXXXXXXX X. XXXXXX, individually:
---------------------------------------- -------------------
Notary Public
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EXHIBIT A
NAME OF SHAREHOLDER STOCK CERTIFICATE NO. NUMBER OF SHARES
------------------- --------------------- ----------------
CMFSI* 1,300,000
XXXXX X. XXX** 82,447
XXXXX X. XXX*** 126,648
XXXXXXXX XXXXX**** VM2478 30,000
XXXXXXXXX XXXXXXXXX**** VM2479 10,000
XXXX AND XXXXX XXXXXXXX**** VM2480 16,500
XXXX XXXX**** VM2481 10,000
XXXXXX XXXXX**** VM2482 11,000
XXXXX XXXX**** VM2483 5,500
XXXX XXXXXXX**** VM2484 10,000
XXXXX XXXXX**** VM2485 5,500
XXXXX XXXXX**** VM2486 20,000
XXXX XXXXXX**** VM2487 30,000
ALARON TRADING CORP.**** VM2503 45,000
XXXXX XXXXXX**** VM2489 25,000
XXXXX XXXXXX**** VM2490 20,000
XX. XXXXXX X. XXXXXX**** VM2491 3,000
SHI YUNG**** VM2492 45,000
XX XXXXXX**** VM2493 25,000
XXXXXXX XXXXXX**** VM2494 25,000
XXXXX XXXXXXXXX**** VM2495 5,000
XXXXXXX XXXXX**** VM2496 5,000
XXXX XXX XXXXXXX**** VM2497 5,000
XXXXXX X. XXXXX**** VM2498 1,000
XXXXX XXXXXX XXXXX**** VM2499 1,000
XXXXXXX XXXXX**** VM2500 2,000
XXXXX XXXXX**** VM2501 2,000
XXXXXXX X. XXX VM2502 392,500
CMFSI*** 245,799
* TO BE ISSUED PURSUANT TO DECEMBER 29, 2000 SETTLEMENT AGREEMENT
** SHARES BEING HELD BY XXXXXX XXXXXX
*** CERTIFICATE MAY BE LOST-WILL BE REISSUED SUBJECT TO NORMAL STOCK TRANSFER
AGENT PROCEDURES AND INDEMNIFICATION AGREEMENTS.
****TO BE REISSUED IN NAME OF CMFSI UPON ENDORSEMENT OF CERTIFICATES BY
REGISTERED OWNER AND XXXXX XXX AND SUBJECT TO OPINION LETTER FROM KOY'S
COUNSEL AND INDEMNIFICATION PROCEDURES AND AGREEMENT OF TRANSFER AGENT.
