RELEASE AND SETTLEMENT AGREEMENT.
This Release and Settlement Agreement (this "Settlement Agreement") is
made and entered into as of May 12, 2000, by and between Xxxxxx Xxxxxxx Family
Limited Partnership, a Wisconsin limited partnership ("Xxxxxxx FLP"), Xxxxx X.
Xxxxxxxx ("Contaldo"), Xxxxxxxx X. Xxxxxx ("Xxxxxx"), and SHC Corp (a/k/a Sonoma
Holding Corp; f/k/a Victormaxx Technologies, Inc.), an Illinois corporation (the
"Company") (one or more of Contaldo, Xxxxxx and the Company are sometimes
referred to as the "Defendant Parties").
WHEREAS, the Company executed and delivered that certain promissory
note dated March 2, 1998, in the original principal amount of $100,000, which
note the parties have amended and restated as of April 10, 2000 (originally, the
"Note," and as amended and restated, the "Restated Note");
WHEREAS, Xxxxxxx commenced a lawsuit against the Defendant Parties
alleging the claims set forth within the complaint filed in the Circuit Court of
Xxxx County, Illinois, Case Xx. 00 XX 00000 (the "Lawsuit"); and
WHEREAS, on September 9, 1999, the court entered a judgment in the
Lawsuit in favor of Xxxxxx FLP and against the Defendant Parties (the
"Judgment"); and
WHEREAS, the Company has previously delivered to Xxxxxxx FLP
certificate number VM 3282 for 10,000 shares of the Company's stock, dated May
20, 1999 (the "Certificate").
WHEREAS, to avoid the cost of continuing litigation and without
admitting any liability, Xxxxxxx FLP and the Defendant Parties have agreed to
settle and compromise, on the terms set forth herein, all claims existing
between them on May 12, 2000, including without limitation, the claims of
Xxxxxxx FLP as set forth in the Lawsuit.
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 XXXXXXX FLP.
a. By executing this Settlement Agreement, Xxxxxxx FLP thereby
exercises its right to convert the outstanding balance of the Restated Note into
990,000 shares of the Company's $.001 par value common stock (the "Shares"). In
connection therewith, and in order for the Shares to be issued without a
restrictive legend, Xxxxxxx FLP will execute and deliver to the Company and the
Company's counsel an affidavit and/or a representation letter in a form
satisfactory to the Company's counsel. Xxxxxxx FLP acknowledges and agrees that,
except as otherwise provided by this Settlement Agreement, delivery of the
Shares shall constitute full satisfaction of any amounts owed or alleged to be
owed Xxxxxxx FLP under the Note, the Restated Note, or otherwise.
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3. Upon delivery of the Shares, Xxxxxxx FLP shall deliver to the
Company the original Note and the Restated Note, both marked canceled, along
with the original Certificate endorsed to the Company, together with a stock
duly executed, medallion guaranteed stock power and such other instruments of
transfer as may be reasonably requested by the Company.
2. OBLIGATIONS OF THE DEFENDANT PARTIES. Upon the execution of
this Settlement Agreement by Xxxxxxx FLP, the Company shall execute and deliver
the Restated Note to Xxxxxxx FLP and the Defendant Parties shall deliver to
Xxxxxxx FLP a stock certificate evidencing the Shares, free of any restrictive
legend, and showing that Xxxxxxx FLP is the owner thereof.
3. REPRESENTATIONS AND WARRANTIES OF THE DEFENDANT PARTIES. The
Defendant Parties represent and warrant to Xxxxxxx FLP as follows:
a. ORGANIZATION, GOOD STANDING. Company 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 the Company does business and in the manner in
which such business is presently carried on and conducted.
b. AUTHORITY. Company has full corporate power and authority to
execute, deliver and perform this Settlement Agreement and any other documents
and instruments to be executed by Company pursuant to this Settlement Agreement
without the consent of any other person. This Settlement Agreement, and the
transactions contemplated by it, have been validly approved and authorized by
the Board of Directors of the Company, and its officer or officers executing
this Settlement Agreement have been duly authorized for that purpose.
c. VALID AND BINDING AGREEMENT. This Settlement Agreement
constitutes a valid and binding agreement of the Defendant Parties, enforceable
against them in accordance with its terms. Neither the execution and delivery of
this Settlement Agreement or the performance by the Defendant Parties: (i)
violates or will violate any statute or law or any rule, regulation or order of
any court, governmental authority, or stock exchange rule applicable to the
Defendant Parties, 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, agreement, or stock exchange rule to which the
Defendant Parties are a party or by which the Defendant Parties are bound.
4. REPRESENTATIONS AND WARRANTIES OF XXXXXXX FLP. Xxxxxxx FLP
represents and warrants to the Defendant Parties as follows:
4. ORGANIZATION, GOOD STANDING. Xxxxxxx FLP is a limited partnership
duly established, validly existing and in good standing under the laws of the
State of Wisconsin and has all requisite partnership 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
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properties at the locations where Xxxxxxx FLP does business and in the manner in
which such business is presently carried on and conducted.
5. AUTHORITY. Xxxxxxx FLP has full power and authority to execute,
deliver and perform this Settlement Agreement and all other documents and
instruments to be executed by Xxxxxxx FLP pursuant to this Settlement Agreement
without the consent of any other person. The person signing below represents and
warrants to the Defendant Parties that such person has been duly authorized to
enter into this Settlement Agreement on behalf of Xxxxxxx FLP.
6. VALID AND BINDING AGREEMENT. This Settlement Agreement constitutes a
valid and binding agreement of Xxxxxxx FLP, enforceable against it in accordance
with its terms. Neither the execution and delivery of this Settlement Agreement
or the performance by Xxxxxxx FLP hereunder (i) violates or will violate any
statute or law or any rule, regulation or order of any court or governmental
authority applicable to Xxxxxxx FLP, 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
Xxxxxxx FLP is a party or by which Xxxxxxx FLP is bound.
5. CONDITIONS TO THE PARTIES' OBLIGATIONS. The parties' duties to
perform their respective obligations under this Settlement Agreement are subject
to and conditioned on the full and complete performance by the other parties of
their respective obligations under this Settlement Agreement.
6. RELEASE OF DEFENDANT PARTIES.
a. In consideration of the full performance by the Defendant
Parties of all their obligations under this Settlement Agreement, Xxxxxxx FLP,
on behalf of itself, its owners, beneficiaries, partners, successors and assigns
hereby unconditionally releases and forever discharges Contaldo, Xxxxxx and the
Company, and the Company's subsidiaries, affiliates, successors, and assigns,
and their respective officers, directors, shareholders, employees, agents, and
attorneys, past and present, from each and every action, charge, claim, right,
liability or demand of any kind or nature, known or unknown, that the Xxxxxxx
FLP had, now has, or could ever have against Contaldo, Xxxxxx or the Company by
reason of any thing existing or occurring on or before the date of this
Settlement Agreement. 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, the Xxxxxxx FLP had, now has, or may have against the Defendant Parties
through the effective date of this Settlement Agreement, arising under any law,
constitution, rule, regulation, statute, or common law theory, whether in tort,
contract, equity, or otherwise. Any action, charge, claim, right, liability,
demand or other legal proceeding released and discharged under this Section is
hereinafter referred to as a "Claim". Notwithstanding anything to the contrary,
the foregoing release specifically excludes: (i) all claims arising from any
breach of this Settlement Agreement by any of the Defendant Parties, and (ii)
all claims arising from the Lawsuit and the Judgment in the event that, pursuant
to this Agreement, Xxxxxxx FLP is entitled to reinstate the
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Lawsuit and vacate the dismissal of the Judgment or file a new lawsuit and
obtain a judgment, and therefore such excluded claims shall not constitute a
Claim.
x. Xxxxxxx FLP further agrees that, with respect to any Claim, it
will not instigate, advise or encourage any other person, group of persons, or
any entity to file suit against the Contaldo, Donati, or the Company and that,
with respect to any Claim, it will not assist in any action against Contaldo,
Donati, the Company except in response to any court issued subpoena, notice of
deposition or inquiry from a governmental agency, and it further represents and
warrants that, excluding the Lawsuit, it has not filed any legal or
administrative action of any kind against Contaldo, Donati, or the Company.
7. RELEASE OF XXXXXXX FLP.
a. In consideration of the full performance by the Xxxxxxx FLP of
its obligations under this Settlement Agreement, the Defendant Parties, on
behalf of themselves, their respective officers, directors, shareholders,
employees, agents, and attorneys, past and present, and their successors and
assigns, hereby unconditionally releases and forever discharges the Xxxxxxx FLP,
its owners, beneficiaries, partners, employees, agents, past and present
attorneys, and its the their respective successors and assigns, from each and
every action, charge, claim, right, liability or demand of any kind or nature,
known or unknown, that the Defendant Parties had, now have, or could ever have
against the Xxxxxxx FLP by reason of any thing existing or occurring on or
before the date of this Settlement Agreement. 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, that the Defendant Parties had, now has, or may have against
the Xxxxxxx FLP through the date of this Settlement Agreement, arising under any
law, constitution, rule, regulation, statute, or common law theory, whether in
tort, contract, equity, or otherwise. Any action, charge, claim, right,
liability, demand or other legal proceeding released and discharged under this
Section is hereinafter referred to as a "Claim". Notwithstanding anything to the
contrary, the foregoing release specifically excludes all claims arising from
any breach of this Settlement Agreement by any the Xxxxxxx FLP, and therefore
such claims shall not constitute a Claim.
b. The Defendant Parties further agree that, with respect to any
Claim, they will not instigate, advise or encourage any other person, group of
persons, or any entity to file suit against the Xxxxxxx FLP and that, with
respect to any Claim, they will not assist in any action against the Xxxxxxx FLP
except in response to any court issued subpoena, notice of deposition or inquiry
from a governmental agency, and they further represent and warrant to the
Xxxxxxx FLP that they have not filed any legal or administrative action of any
kind against the Xxxxxxx FLP.
8. AGREEMENT NOT TO XXX. (a) In consideration of the Defendant
Parties' performance under this Settlement Agreement, Xxxxxxx FLP agrees on
behalf of itself and its owners, beneficiaries, partners, successors and assigns
never to institute, directly or indirectly, any action or proceeding of any kind
against the Defendant Parties to enforce a Claim. (b) In consideration of the
Xxxxxxx FLP's performance under this Settlement Agreement, the Defendant Parties
agree on behalf
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of themselves and their shareholders, directors, officers, employees, agents,
successors and assigns never to institute, directly or indirectly, any action or
proceeding of any kind against the Xxxxxxx FLP to enforce a Claim.
9. AGREEMENT AS COMPLETE DEFENSE. Provided that a party fully
performs under this Settlement Agreement (the "Performing Party"), the parties
hereby agree that if any other party files a Claim or if a Claim is filed on a
party's behalf against the Performing Party, this Settlement Agreement shall
constitute a complete defense to such Claim.
10. COSTS AND ATTORNEYS' FEES. The Defendant Parties and Xxxxxxx
FLP agree that each shall bear its own costs and attorneys' fees in connection
with entering into this Settlement Agreement and the circumstances underlying
this Settlement Agreement. In the event of litigation to enforce the terms of
this Settlement Agreement: (a) if Xxxxxxx FLP is the prevailing party, Xxxxxxx
FLP shall be entitled to recover from the Defendant Parties reasonable
attorneys' fees and court costs incurred by Xxxxxxx FLP, and (b) if the
Defendant Parties are the prevailing party and provided that Xxxxxxx FLP acted
in bad faith, Defendant Parties shall be entitled to recover from Xxxxxxx FLP
reasonable attorneys' fees and court costs.
11. NO ADDITIONAL CLAIMS. Xxxxxxx FLP understands and agrees that
it has no additional claims against Contaldo, Xxxxxx or the Company, or any of
them, other than those described by this Settlement Agreement. Contaldo, Xxxxxx
and the Company understand and agree that they have no additional claims against
Xxxxxxx FLP other than those described by this Settlement Agreement.
12. DISCLAIMER OF LIABILITY. The parties understand and agree that
this Settlement Agreement does not constitute and shall not be construed as an
admission of liability or wrongdoing by any party with respect to any Claim, and
that each party 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 as of the date of this Settlement Agreement.
13. APPLICABLE LAW, JURISDICTION, AND VENUE. This Settlement
Agreement shall be governed and construed in accordance with the internal laws
of the State of Illinois to the extent state law is applicable, without regard
to conflict of law principles. The parties hereby submit to the exclusive
jurisdiction and to the exclusive venue of the state and federal courts located
within Xxxx County, Illinois, in all actions to enforce this Settlement
Agreement and in all actions brought under Paragraph 20 of this Settlement
Agreement.
14. BINDING EFFECT. This Settlement Agreement shall be binding
upon the parties' respective heirs, administrators, executors, successors and
assigns.
15. NO RELIANCE ON OUTSIDE PROMISES. The parties acknowledge that
they have not, as an inducement to execute this Settlement Agreement, relied
upon any promises made by any party or by any third party other than those
specifically contained or expressly referred to herein.
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16. ENFORCEABILITY. If any term or provision, or any part of any
term or provision of this Settlement Agreement 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 Agreement.
17. COMPLETE AGREEMENT. This Settlement Agreement contains the
entire understanding between Xxxxxxx FLP and the Defendant Parties and
supersedes all prior agreements and understandings relating to the subject
matter hereof.
18. COUNTERPARTS. This Settlement Agreement 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.
19. MISCELLANEOUS (a) If a party's representation or warranty is
or becomes untrue, that party shall thereupon be deemed to have breached and
failed to perform its obligations under this Settlement Agreement. (b) The
Defendant Parties' obligations and liability under this Settlement Agreement
shall be joint and several. (c) Whenever required by the circumstances, the
singular of any word or term within this Settlement Agreement shall mean the
plural and the plural shall mean the singular.
20. PUBLICLY TRADEABLE. If, at any time during the seven (7) year
period after the date of this Settlement Agreement, Xxxxxxx FLP owns any of the
Shares and such Shares cease to be listed on any securities exchange regulated
by an agency of the United States excluding over the counter (OTC) and "Pink
Sheets" (an "Exchange"), Xxxxxxx FLP shall be entitled to reinstate the Lawsuit
or, in the alternative, to commence a new action, and in either case to obtain a
judgment against the Defendant Parties for an amount equal to $99,000 minus the
net amount received by Xxxxxxx FLP for the sale of any Shares on or before the
date on which such a judgment is entered. Upon the entry of such judgment
Xxxxxxx shall assign such Shares to the Company. Notwithstanding the foregoing,
the first time that such shares cease to be listed on an Exchange, such
cessation shall not be a breach of this provision if such Shares are again
listed on an Exchange within thirty (30) days after such Shares had first ceased
to be listed. In addition to all methods provided by statute or court rules, the
defendant Patties hereby appoint any partner of Xxxxxx & Xxxxx, or its
successor, to accept service of any motion or summons necessary to reinstate the
Lawsuit or to commence a new action.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the patties xxxx executed this Settlement Agreement
as of May 9, 2000.
XXXXXXX FAMILY LIMITED PARTNERSHIP
By: XXXXXXX INVESTMENT, INC.
-------------------------------
Its: GENERAL PARTNER
------------------------------
XXXXXX XXXXXXX - PRESIDENT
SHC CORP. (a/k/a Sonoma Holding Corp.) (f/k/a Victormax. Technologies,
Inc.)
By: ______________________________________
Its: _______________________________________
XXXXX X. XXXXXXXX
------------------------------------------
XXXXXXXX X. XXXXXX
------------------------------------------
IN WITNESS WHEREOF, the patties xxxx executed this Settlement Agreement
as of May 9, 2000.
XXXXXXX FAMILY LIMITED PARTNERSHIP
By: _______________________________________
Its: ______________________________________
SHC CORP. (a/k/a Sonoma Holding Corp.) (f/k/a Victormax. Technologies,
Inc.)
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------------------
Its: CEO
----------------------------------------
XXXXX X. XXXXXXXX
Xxxxx X. Xxxxxxxx
------------------------------------------
XXXXXXXX X. XXXXXX
/s/ Xxxxxxxx X. Xxxxxx
------------------------------------------
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ATTACHMENT 1
IN THE CIRCUIT COURT OF XXXX COUNTY, STATE OF ILLINOIS
COUNTY DEPARTMENT, CHANCERY DIVISION (GENERAL)
XXXXXX XXXXXXX FAMILY LIMITED )
PARTNERSHIP, a Wisconsin limited )
partnership, )
)
Plaintiff )
)
v. ) Xx. 00 XX 00000
)
XXXXX X. XXXXXXXX, XXXXXXXX X. )
XXXXXX, SONOMA HOLDING CORP., )
an Illinois corporation, and SHC CORP., an Illinois )
corporation. )
)
Defendants )
AGREED ORDER
This matter having come before the Court pursuant to Plaintiffs motion,
and the Court being fully advised in the premises,
IT IS HEREBY ORDERED that this action is dismissed with prejudice. The
court shall retain jurisdiction to reinstate this action and to enter a judgment
pursuant to the parties' settlement agreement dated May 9, 2000.
-------------------------------------
Circuit Judge
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Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxxxx
Poznak Law Firm Ltd.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, XX 00000-0000
Xxxx Co. Atty. No: 33635
9
ATTACHMENT 2
IN THE CIRCUIT COURT OF XXXX COUNTY, STATE OF ILLINOIS
COUNTY DEPARTMENT, CHANCERY DIVISION (GENERAL)
XXXXXX XXXXXXX FAMILY LIMITED )
PARTNERSHIP, a Wisconsin limited )
partnership, )
)
Plaintiff )
)
v. ) Xx. 00 XX 00000
)
XXXXX X. XXXXXXXX, XXXXXXXX X. )
XXXXXX, SONOMA HOLDING CORP., )
an Illinois corporation, and SHC CORP., an Illinois )
corporation. )
)
Defendants )
AGREED ORDER
This matter having come before the Court pursuant to Plaintiffs motion,
and the Court being fully advised in the premises,
IT IS HEREBY ORDERED that this action is dismissed with prejudice.
-------------------------------------
Circuit Judge
10
Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxxxx
Poznak Law Firm Ltd.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, XX 00000-0000
Xxxx Co. Atty. No: 33635
11
