SET-OFF AND RELEASE AGREEMENT
THIS SET-OFF AND RELEASE AGREEMENT (the "Agreement") is entered into as
of the 28th day of December, 2001, by and between NEBO Products, Inc. (the
"Company") and Xxxx Xxxxxxxx (the "Investor"). Both the Company and the Investor
may be referred to herein as a "Party" and collectively as the "Parties."
RECITALS
A. The Investor and the Company entered into an agreement whereby the
Investor provided fee services to the Company, as evidenced by a
Consulting Agreement (the "Consulting Agreement"). The total amount
outstanding on the Consulting Agreement, including principal,
interest, as well as any other related fees and charges, is
$251,250.00.
B. The Investor purchased from the Company, in connection with the
Company's recent public offering, 335,000 shares (the "Shares") of the
Company's Common Stock.
C. The Investor paid for the Shares by tendering to the Company a
promissory note (the "Investor Note"). The total amount outstanding on
the Investor Note, including principal, interest, as well as any other
related fees and charges, is $251,250.00.
D. The Parties now desire to cancel and offset the mutual debts of the
Company and the Investor, by setting off the Consulting Agreement
against the Investor Note, and to further release each other from any
remaining obligations under the Consulting Agreement and the Investor
Note.
NOW, THEREFORE, in consideration of the premises, and the mutual
covenants and agreements contained herein and for other good and valuable
consideration, the receipt, adequacy and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
AGREEMENT
1. Set-off and Cancellation of Notes. The Company and the Investor mutually
agree that the Consulting Agreement and the Investor Note shall be set-off
against each other and canceled.
2. Return of Notes. At the time of execution of this Agreement:
A. The Investor agrees to return the Consulting Agreement to the Company,
marked "Canceled" or "Paid in Full" or otherwise indicating that the
Company has no further obligation to pay on the Consulting Agreement
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B. The Company agrees to return the Investor Note to the Investor, marked
"Canceled" or "Paid in Full" or otherwise indicating that the Investor
has no further obligation to pay on the Investor Note.
3. No Further Obligation of Company or Investor. The Investor hereby
acknowledges and agrees that upon return by the Investor of the Consulting
Agreement, the Company shall have no further obligation to the Investor to
pay or otherwise service the Consulting Agreement. The Company hereby
acknowledges and agrees that upon return by the Company of the Investor
Note, the Investor shall have no further obligation to the Company to pay
or otherwise service the Investor Note.
4. Mutual Release.
A. In connection with the sale of the Interests, the Investor hereby
releases, acquits, waives and forever discharges and agrees to hold
harmless the Company, and each of its respective owners, members,
managers, parents, subsidiaries, affiliates, successors, assigns,
agents, directors, officers, employees, shareholders, representatives,
attorneys and all persons acting by, through, under or in concert with
any of them (the "Company Releasees"), from any and all Claims. As
used herein, "Claims" means all liabilities, obligations, duties,
undertakings, agreements, contracts, compensation, bonuses,
commissions, employee benefit plans, policies, practices, claims,
charges, grievances, demands, charges of discrimination, accounts,
costs, attorney's fees, expenses, liens and causes of action of every
kind and nature whatsoever. The Claims include, without limitation,
breach of implied or express contract, libel, slander, wrongful
discharge or termination, discrimination claims arising under Title
VII of the Civil Rights Act of 1964 (as amended), the Americans with
Disabilities Act of 1990 (as amended), the Worker Adjustment and
Retraining Notification Act, 29 U.S.C. i+/-i+/-2101-2109 (as amended),
any other federal, state, or local laws prohibiting age, race,
religion, sex, national origin, disability and other forms of
discrimination, or any other federal or state laws that may be
applicable thereto, whether now known or unknown, suspected or
unsuspected, accrued or unaccrued, and whether now had, possessed or
held or at any time in the past had, possessed or held. The Investor
specifically waives any and all claims arising out of or related to
any asserted misrepresentations or omissions made or omitted in the
set-off of the Consulting Agreement and the Investor Note. The
Investor hereby waives any right to recover damages, costs, attorneys'
fees, and any other relief in any proceeding or action brought against
the Company Releasees by any other party, including without limitation
the SEC, the NASD, or other governmental or regulatory agency on the
Investor's behalf asserting any claim, charge, demand, grievance, or
cause of action released by the Investor as stated above. This release
and waiver shall be binding on the Investor and his heirs, legal
representatives, and assigns, and shall inure to the benefit of the
Company Releasees and their successors-in-interest and assigns.
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B. In connection with the sale of the Interests, the Company hereby
releases, acquits, waives and forever discharges and agrees to hold
harmless the Investor, and each of its respective owners, members,
managers, parents, subsidiaries, affiliates, successors, assigns,
agents, directors, officers, employees, shareholders, representatives,
attorneys and all persons acting by, through, under or in concert with
any of them (the "Investor Releasees"), from any and all Claims. As
used herein, "Claims" means all liabilities, obligations, duties,
undertakings, agreements, contracts, compensation, bonuses,
commissions, employee benefit plans, policies, practices, claims,
charges, grievances, demands, charges of discrimination, accounts,
costs, attorney's fees, expenses, liens and causes of action of every
kind and nature whatsoever. The Claims include, without limitation,
breach of implied or express contract, libel, slander, wrongful
discharge or termination, discrimination claims arising under Title
VII of the Civil Rights Act of 1964 (as amended), the Americans with
Disabilities Act of 1990 (as amended), the Worker Adjustment and
Retraining Notification Act, 29 U.S.C. ss 2101-2109 (as amended), any
other federal, state, or local laws prohibiting age, race, religion,
sex, national origin, disability and other forms of discrimination, or
any other federal or state laws that may be applicable thereto,
whether now known or unknown, suspected or unsuspected, accrued or
unaccrued, and whether now had, possessed or held or at any time in
the past had, possessed or held. The Company specifically waives any
and all claims arising out of or related to any asserted
misrepresentations or omissions made or omitted in the set-off of the
Consulting Agreement and the Investor Note. The Company hereby waives
any right to recover damages, costs, attorneys' fees, and any other
relief in any proceeding or action brought against the Investor
Releasees by any other party, including without limitation the SEC,
the NASD, or other governmental or regulatory agency on the Company's
behalf asserting any claim, charge, demand, grievance, or cause of
action released by the Company as stated above. This release and
waiver shall be binding on the Company and its heirs, legal
representatives, and assigns, and shall inure to the benefit of the
Investor Releasees and their successors-in-interest and assigns.
5. Choice of Laws. The Company and the Investor agree that this Agreement, and
any claims related to this Agreement, and/or the Investor Note or the
Consulting Agreement, whether such claims are in the nature of tort,
contract, or otherwise, shall be construed in accordance with the laws of
the State of Utah.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.
SIGNATURE PAGES FOLLOW.]
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DATED as of the date first written above.
NEBO PRODUCTS, INC. INVESTOR: Xxxx Xxxxxxxx
/s/ /s/
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By:_________________________________
Its:_________________________________
