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Exhibit 10.34
SETTLEMENT AND RELEASE AGREEMENT
This Settlement and Mutual General Release Agreement (hereinafter
"Agreement") is made and entered into this 18th day of January, 2001, by and
amongst Xxxx Acres Investments, Inc., Xxxxxxx X. Xxxxxxx, Xxxxxxx Xxxxx and Xxxx
Xxxxxxx "Vini" Xxxxxxxx ("Cross-Defendants"), on the one hand, and Ultra
Motorcycle Company, f/k/a Bikers Dream, Inc ("Cross-Complainant"), on the other
hand. Cross-Complainant and Cross-Defendants are hereinafter sometimes
collectively referred to as "Parties."
1.00. RECITALS.
1.01. Certain disputes have arisen between the Parties. The
purpose of this Agreement is to resolve, in their entirety, all disputes that
now exist, or potentially could exist, between the Parties relating to those
claims and disputes which are, or could have been, set forth in the action
pending in the Superior Court of the State of California in and for the County
of Riverside entitled: Xxxx Acres Investments, Inc v. Bikers Dream, Inc et. al,
(and related cross actions) Case No. RIC 338208. This action may sometimes be
referred to hereinafter as the "Litigation."
1.02. It is the desire and intention of the Parties to this
Agreement to settle all disputes between them that are, or could have been,
included in the Litigation.
2.00. AGREEMENT.
2.01. NOW, THEREFORE, in exchange for mutual releases and for a
full and adequate consideration, receipt of which is hereby acknowledged, and
the terms, conditions, and covenants contained herein, the Parties hereto agree
as follows:
2.02. Recitals. The recitals set forth here in above are
incorporated herein by this reference and made a part of this Agreement between
the Parties.
2.03. Terms. Cross-Defendants and Cross-Complainant intend to
settle and resolve all of the issues in the litigation with this agreement. No
Cross-Defendant shall have to pay Cross-Complainant any monies as a result of
this settlement. Nor, shall Cross-Complainant have to pay any monies to any
Cross-Defendant. All Cross-Defendants and Cross-Complainant shall bear their own
attorneys fees and costs. The Cross-Defendants each reserve, however, any and
all rights they may each have to pursue each other on any disputes they may have
against one another either on this matter or any other matter. This settlement
agreement is not supposed to affect any of the Cross-Defendants' own rights
against each other relating to this litigation or any other issues they may have
amongst themselves.
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2.04. The Parties understand, and acknowledge, that some of the
principal claims in this Litigation related to, amongst other things, alleged
wrongful acts of Cross-Complainant in seizing stock in Ultra Motorcycle Company
f/k/a Bikers Dream, Inc. owned by some Cross-Defendants, particularly Xxxx Acres
Investments, Inc. There were also claims that some Cross-Defendants allegedly
wrongfully built and sold motorcycles in competition with Ultra Motorcycle
Company and committed other acts of unfair competition and interference with
business. The Parties agree that as part of this settlement, any Cross-Defendant
claiming an ownership interest of any type in the 730,000 shares of stock
(pre-split) which were seized hereby transfers, relinquishes and disclaims any
and all right, title and interest they may ever have had in that stock to Ultra
Motorcycle Company f/k/a Bikers Dream, Inc. Each person/entity who may have
previously owned any right, title or interest in any of these shares
specifically agrees to sign any and all documents which may be necessary to
cause clear title and ownership in those shares to be transferred to Ultra
Motorcycle Company. Those documents may include, but are not limited to,
endorsing the stock certificates, declarations of lost certificates and/or a
power of attorney to Ultra Motorcycle Company or its designee, so that they may
legally sign any and all documents necessary to effectuate the transfer of the
stock. Furthermore, Cross-Complainant is relinquishing all claims against each
Cross-Defendant concerning damages suffered by the alleged acts of any
Cross-Defendant in building and selling motorcycles in competition with Ultra
Motorcycle Company or in any other alleged acts of unfair competition or
interference with business that were included in this Litigation.
2.05. Furthermore, there is presently pending against
Cross-Complainant, an action filed in the Superior Court of the State of
California in and for the County of Orange, entitled People of the State of
California ex rel. State Air Resources Board v. Ultra Acquisition Corporation,
et al., Case No. 00XX00000. Cross-Complainant has not yet filed responsive
pleadings in that action. Cross-Complainant believes, however, that if, and
when, it must file responsive pleadings in that matter, it may have valid
grounds to Cross Complain therein against some, or all, of the Cross-Defendants
herein. As part of the terms of this settlement agreement, Cross-Complainants
agree not to initially Cross-Complain against any of the Cross-Defendants in
that action. Cross-Complainant is not making any representation or warranty that
these parties may not be brought into the action via some other means or via
some other party. Nor is Cross-Complainant agreeing to indemnify or hold
harmless any of these parties if they are brought into that action or sued for
any of the same claims or damages Cross-Complainant is now facing in that
action. This is simply an agreement that Cross-Complainant will not be the one
to initially bring them into that action, if they are even ever brought into it.
2.06. The Parties hereto each hereby authorize their respective
legal counsel to execute and cause to be submitted to the Court any and all
documents necessary to effectuate a full and complete Dismissal With Prejudice
of all Litigation.
3.00. MUTUAL RELEASES.
3.01. The Cross-Defendants do each hereby absolutely and forever,
release and
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discharge Cross-Complainant and each of its associates, owners, stockholders,
predecessors, successors, heirs, assigns, agents, directors, officers, partners,
employees, representatives, lawyers and all persons acting by, through, under or
in concert with them, of and from any and all actions, causes of action,
arbitrations, requests for proceedings, debts, guarantees, warranties, express
or implied, balances, liabilities, demands, obligations, costs, expenses,
damages and liens of every kind whatsoever (hereinafter referred to as "Claims")
whether known or unknown, suspected or unsuspected, fixed or contingent, which
each now has, or potentially may have, against Cross-Complainant, by reason of
any matter, cause or thing whatsoever which was, or could have been, included in
the Litigation.
3.02. Cross-Complainant does hereby absolutely and forever,
release and discharge each Cross-Defendant and each of their associates, owners,
stockholders, predecessors, successors, heirs, assigns, agents, directors,
officers, partners, employees, representatives, lawyers and all persons acting
by, through, under or in concert with them, of and from any and all actions,
causes of action, arbitrations, requests for proceedings, debts, guarantees,
warranties, express or implied, balances, liabilities, demands, obligations,
costs, expenses, damages and liens of every kind whatsoever (hereinafter
referred to as "Claims") whether known or unknown, suspected or unsuspected,
fixed or contingent, which it now has, or potentially may have, against the
Cross-Defendants, by reason of any matter, cause or thing whatsoever which was,
or could have been, included in the Litigation.
3.03. The Parties hereto acknowledge that they are aware of the
fact that it is the intention of each of them that the execution of this
Agreement shall, except as to the rights, obligations and exceptions contained
herein, be effective as a full and final settlement of, and as a bar to, each
and every claim which either of them has against the other, by reason of any
matter, cause or thing whatsoever which was, or could have been, included in the
Litigation. The Parties hereto acknowledge that they are aware that if they
hereafter discover facts different from, or in addition to, the facts which they
now know or believe to be true with respect to the subject matter of this
Agreement, it is nevertheless their intention hereby to settle finally, any and
all Claims which do now exist between them. In furtherance of such intention,
the releases herein shall be and will remain in effect as releases, not
withstanding the discovery of any such different or additional facts. It is
expressly understood and agreed that the Parties hereto realize that there may
exist at this time Claims herein released, the nature of which have not yet been
discovered.
3.04. The Parties hereto acknowledge that they have been informed
by their attorneys, and that they are familiar with and waive the provisions of
Section 1542 of the Civil Code of the State of California which 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.
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3.05. It is expressly understood and agreed that the possibility
that such Claims exist has been explicitly taken into account in determining the
consideration to be given for this Agreement and that a portion of that
consideration, having been bargained for in full knowledge of the possibility of
such unknown Claims, was given in exchange for the releases and discharge of
Claims covered by these releases.
3.06. No Prior Assignments. The parties hereto represent and
warrant that they have not assigned or transferred any interest in any claim
which they may have against the persons which are released under the terms of
this Agreement, or any of them, and agree to indemnify and hold such persons,
and each of them, harmless from any liabilities, claims, demands, damages,
costs, expenses, and attorneys fees incurred by such persons, or any of them, as
a result of any person asserting any such assignment or transfer or any rights
or claims under any such assignment or transfer. It is the intention of the
Parties that this indemnity does not require payment as a condition precedent to
recovery hereunder by any indemnified person.
3.07. The Parties hereto, and the persons signing on behalf of
each party, represent, and warrant, that they have all necessary and requisite
authorizations to, and are completely empowered to, enter into this Agreement
and each and every one of its terms and conditions. Each Party, and the person
signing on behalf of each party, agrees to indemnify and hold harmless all of
the other Parties to this Agreement for any costs, expenses or damages incurred
as a result of any breach, or allegation of breach, of said warranty. It is the
intention of the Parties that this indemnity does not require payment as a
condition precedent to recovery hereunder by any indemnified person.
3.08. THE RELEASES HEREIN SHALL BECOME EFFECTIVE IMMEDIATELY UPON
EXECUTION AND THIS AGREEMENT IS, AND SHALL BE, FULLY ENFORCEABLE UNDER CCP
Section 664.6.
4.00. MISCELLANEOUS
4.01. The Parties hereto agree to perform their obligations
hereunder in "good faith."
4.02. All notices, requests or demands and other communications
hereunder shall be in writing and telecopied, delivered by overnight delivery
service or mailed to the intended recipient at the telecopy number or address
specified below. Such notices, requests, demands and other communications shall
be deemed to have been fully given when transmitted by telecopier, answerback
received, delivered by overnight delivery service against receipt or, in the
case of mailed notices, three (3) business days after such notice is enclosed in
a properly scaled envelope and deposited in a post office or collection facility
regularly maintained by the United States Postal Service (registered or
certified mail, return receipt requested, postage and certification or
registration prepaid.)
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To: Cross-Defendants Xxxxxxx Xxxxx and Xxxx Xxxxxxx Xxxxxxxx:
Xxxxxx X. Xxxxx, Esq.
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
(000) 000-0000 Telephone
(000) 000-0000 Facsimile
To: Cross-Defendants Xxxx Acres Investments, Inc and
Xxxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxxxxxxx, Esq.
LAW OFFICES OF XXXXX X. XXXXXXXXXXXX
0 Xxxxx Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
(000) 000-0000 Telephone
(000) 000-0000 Facsimile
To: Cross-Complainant Ultra Motorcycle Company:
Xxxxxx X. Xxxxxxx, Esq.
Xxxxx X. Xxxxxx, Esq.
ULTRA MOTORCYCLE COMPANY
0000 Xxxxxx Xxxxx
Xxxx Xxxx, XX 00000
(000) 000-0000 Telephone
(000) 000-0000 Facsimile
Any party may change its address for the purpose of notice to any
other address by giving notice in accordance with the foregoing provisions.
4.03. This Agreement and Mutual Release as entered into by the
Parties hereto is solely for the purpose of compromising and settling the
matters in dispute. It does not constitute, nor shall it be construed as, an
admission by any of the Parties hereto of the truth or validity of any of the
Claims asserted.
4.04. All costs and expenses incurred by the Parties hereto in
litigating any of the above referred to litigation and in completing this
Agreement, to the extent not already provided for herein, shall be borne, each
Party by themselves.
4.05. Time is of the Essence. Time is specifically declared to be
of the essence in completing the terms, conditions, and covenants of this
Agreement to be performed by the respective Parties.
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4.06. Entire Agreement. This Agreement constitutes the entire
Agreement between the parties hereto pertaining to the subject matter hereof and
supersedes all prior or contemporaneous Agreements, understandings, negotiations
and discussions, whether oral or written, of the Parties in connection with the
subject matter hereof, except as specifically set forth herein. No supplements,
modifications, waivers or terminations of this Agreement shall be binding unless
executed in writing by the Parties to be bound thereby. No waiver of any
provisions of this Agreement shall be deemed or shall constitute a waiver of any
other provision herein (whether or not similar), nor shall such waiver
constitute a continuing waiver unless otherwise expressly provided.
4.07. Binding on Successors. All of the terms and provisions of
this Agreement shall be binding upon or shall inure to the benefit of the
Parties hereto, their assigns, heirs, administrators, executors or successors.
4.08. Headings. The headings contained in this Agreement have
been inserted for convenience only and in no way define or limit the scope or
interpretation of this Agreement.
4.09. Waiver. Either Party hereto may specifically waive any
breach of this Agreement by the other Party, but no such waiver shall constitute
a continuing waiver of similar or other breaches. A waiving Party may at any
time, upon notice given in writing to the breaching Party, direct future
compliance with the waived term or terms of this Agreement, in which event the
breaching Party shall comply as directed from such time forward. All remedies,
rights, undertakings, obligations and agreements contained in this Agreement
shall be cumulative and not mutually exclusive.
4.10. Counterparts. This Agreement may be executed in any number
of counterparts each of which shall be deemed an original but all of which taken
together shall constitute an Agreement. Facsimile signatures are acceptable and
may be deemed to be originals on any counterpart to this agreement.
4.11. Attorney's Fees. In the event any Party hereto shall
commence legal proceedings against the other to enforce the terms hereof, or to
declare rights hereunder, as the result of the breach of any covenant or
condition of this Agreement, the prevailing Party in any such proceeding shall
be entitled to recover from the losing Party its costs of suit including
reasonable attorney's fees, as may be fixed by the court.
4.12. Negotiated Agreement. The drafting and negotiating of this
Agreement has been participated in by each of the Parties. This Agreement shall
be deemed to have been drafted jointly by the Parties.
4.13. Independent Counsel. The Parties do hereby acknowledge and
agree that they have been represented by independent counsel of their own choice
throughout all negotiations which preceded the execution of this Agreement and
that they have executed this Agreement with the consent and upon the advice of
said independent counsel.
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4.14. Governing Law. This Agreement has been entered into and
executed in the State of California and shall be interpreted in accordance with
the laws of said state. Venue for any litigation, arbitration or other
proceedings arising out of, referring or relating to this Settlement and Release
Agreement shall be in the County of Riverside, State of California.
4.15. Invalid Provision. The invalidity or unenforceability of
any particular provision of this Agreement shall not affect the other provisions
hereof, and in such instance, this Agreement shall be construed in all respects
as if such invalid or unenforceable provision were omitted.
4.16. Other Documents. The Parties shall execute such other
documents and take such further actions as may be required for the consummation
of the transactions contemplated in this Agreement.
5.00. EXECUTION.
5.01. In witness whereof the Parties have caused this Agreement
to be entered into and signed their respective names hereon, all as of the date
first written above.
THE UNDERSIGNED HAVE READ THIS SETTLEMENT AND RELEASE AGREEMENT AND
AGREED TO ITS TERMS. THE UNDERSIGNED UNDERSTAND AND ACKNOWLEDGE THAT THIS
SETTLEMENT AND RELEASE AGREEMENT CONTAINS A RELEASE OF ALL KNOWN OR UNKNOWN
CLAIMS.
"CROSS-DEFENDANTS"
XXXX ACRES INVESTMENTS, INC.
DATED: By:
--------------------- -------------------------------------
Its:
------------------------------------
DATED:
--------------------- ----------------------------------------
Xxxxxxx X. Xxxxxxx
DATED:
--------------------- ----------------------------------------
Xxxxxxx Xxxxx
DATED:
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Xxxx Xxxxxxx "Vini" Xxxxxxxx
SIGNATURES CONTINUED ON NEXT PAGE
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SIGNATURES CONTINUED FROM PRIOR PAGE
APPROVED AS TO FORM FOR CROSS-DEFENDANTS
XXXX ACRES INVESTMENTS, INC AND XXXXXXX
X. XXXXXXX
LAW OFFICES OF XXXXX X. XXXXXXXXXXXX
DATED:
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Xxxxx X. Xxxxxxxxxxxx, Esq.
APPROVED AS TO FORM FOR CROSS-DEFENDANTS
XXXXXXX XXXXX AND XXXX XXXXXXX "VINI"
XXXXXXXX
LAW OFFICES OF XXXXXX X. XXXXX
DATED:
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Xxxxxx X. Xxxxx, Esq.
"CROSS-COMPLAINANT"
ULTRA MOTOTRCYCLE COMPANY f/k/a BIKERS
DREAM, INC
DATED: By:
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Its:
------------------------------------
APPROVED AS TO FORM:
DATED:
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Xxxxx X. Xxxxxx, Esq.
General Counsel
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