Exhibit 10.16
RELEASE AGREEMENT
THIS RELEASE AGREEMENT (this "Agreement") is made and entered into as of
February 4, 2011, by and between Xxxxx X. Xxxxxxxx ("Xxxxxxxx") and MONDAS
MINERALS CORP., a Delaware corporation ("Mondas").
WHEREAS, Xxxxxxxx loaned or made expenditures on behalf of Mondas over a
period of time while a principal or serving as an officer of Mondas;
WHEREAS, Mondas is contemplating a change of control transaction in the
form of a merger with Consumer Captial Group Inc., a California corporation
("CCG"), and one of the conditions precedent to the consummation of such
transaction is that Mondas have zero liabilities at the time of closing;
WHEREAS, the respective Boards of Directors of Mondas, CCG Acquisition
Corp. (its wholly owned subsidiary) ("Merger Subsidiary"), and CCG have approved
the merger of Merger Subsidiary with and into CCG, with CCG being the surviving
corporation, after which it will be a wholly-owned subsidiary of Mondas (the
"Merger"), all upon the terms and subject to the conditions set forth herein;
WHEREAS, the Merger shall be conducted pursuant to an Agreement and Plan of
Merger dated February 4, 2011 by and among Mondas, Merger Subsidiary, CCG and
Xxxxxxxx (the "Merger Agreement"); and
WHEREAS, the parties are entering into this Agreement in order to provide
for the release and discharge of any and all indebtedness owed by Mondas to
Xxxxxxxx.
NOW, THEREFORE, for other good and valuable consideration, the receipt and
adequacy of which is hereby accepted, the parties hereby agree as follows:
1. Certain Definitions.
"Affiliate" shall mean shall mean any other Person directly or indirectly
controlling, controlled by, or under common control with, that Person; for
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlling," "controlled by" and "under common control with"), as
applied to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of that
Person, whether through the ownership of voting securities, by contract or
otherwise.
"Closing" shall have the meaning assigned to such term in the Merger
Agreement.
"Closing Date" shall mean the closing date of the Merger under the Merger
Agreement.
"Indebtedness" means, with respect to any Person, all indebtedness of such
Person for borrowed money or the deferred purchase price of property or
services, obligations of such Person evidenced by bonds, notes, indentures or
similar instruments, obligations of such Person under interest rate agreements,
currency hedging agreements, commodity price protection agreements or similar
hedging instruments, capital lease obligations of such Person, redeemable
capital stock of such Person and any other obligations of such Person classified
as indebtedness under GAAP, or any and all other claims for money or other
value, whether known or unknown, or agreed or by operation of law.
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"Person" shall include individuals, corporations, partnerships, limited
liability companies, trusts, other entities and groups (which term shall include
a "group" as such term is defined in Section 13(d)(3) of the Securities Exchange
Act of 1934, as amended).
2. Resignation. Xxxxxxxx agrees to resign as sole director on the board of
directors of Mondas effective on the Closing Date of the Merger.
3. Representations and Warranties. Xxxxxxxx hereby represents and warrants
that its representations and warranties made by Mondas to the other parties in
the Merger Agreement are true and correct as of the date of the Closing, which
Section is incorporated into this Agreement by reference. Xxxxxxxx hereby
further represents and warrants that he has not transferred any indebtedness to
any third party, and no indebtedness held by Xxxxxxxx has been assumed by any
third party.
4. Confidentiality. Xxxxxxxx agrees that, except with the prior written
permission of Mondas, it shall at all times hold in confidence and trust and not
use or disclose any confidential information of Mondas provided to or learned by
Xxxxxxxx in connection with his prior dealings with Mondas, unless such
confidential information (a) was publicly known and made generally available in
the public domain prior to the time of disclosure by Mondas; (b) becomes
publicly known and made generally available after disclosure by Mondas to
Xxxxxxxx through no fault of Xxxxxxxx; (c) is already in the possession of
Xxxxxxxx at the time of disclosure by Mondas, as shown by Xxxxxxxx'x files and
records; (d) is obtained by Xxxxxxxx from a third party without a breach of the
third party's obligations of confidentiality; or (e) is independently developed
by Xxxxxxxx without use of or reference to Mondas's confidential information, as
shown by documents and other competent evidence in Xxxxxxxx'x possession.
Notwithstanding the foregoing, Xxxxxxxx may disclose any confidential
information of Mondas provided to or learned by Xxxxxxxx to the minimum extent
necessary (i) as required by any court or other governmental body, provided that
Xxxxxxxx provides Mondas with prompt notice of such court order or requirement
to Mondas to enable Mondas to seek a protective order or otherwise to prevent or
restrict such disclosure; (ii) to legal counsel of Xxxxxxxx; (iii) in connection
with the enforcement of this Agreement or any rights under this Agreement; or
(iv) to comply with applicable law.
5. Non-Solicitation. For a period of at least twelve (12) months from the
date of this Agreement, Xxxxxxxx agrees that he shall not directly or indirectly
solicit or hire any officer, director, owner or employee of Mondas, or induce
any such person to terminate his or her relationship with Mondas, or use any
confidential information of Mondas received by them to do any of the foregoing,
or provide such confidential information of Mondas to any third party to do any
of the foregoing.
6. Non-Disparagement. Xxxxxxxx shall not hereafter disparage or otherwise
seek to impair or impugn the character, integrity or reputation of Mondas or,
its shareholders, directors, officers, employees or agents. Xxxxxxxx agrees that
any breach of this provision would result in irreparable injury and,
accordingly, in addition to any legal remedy, Mondas and the parties referenced
in this Section 7 shall be entitled to equitable or injunctive relief in any
court of competent jurisdiction in the event of any breach or threatened breach
of this provision.
7. Release and Related Matters.
(a) Release. Conditioned and effective upon Closing, Xxxxxxxx and, to the
fullest extent permitted by law, each of Xxxxxxxx'x past, present and future
officers, directors, employees, agents, affiliates, attorneys, accountants,
advisors, representatives, successors and assigns and all others claiming
through that party or such other entities or persons (each a "Releasor"), hereby
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fully releases and forever discharges Mondas and each of Mondas's past, present
and future officers, directors, employees, shareholders, agents, affiliates,
attorneys, accountants, advisors, representatives, successors and assigns and
all others claiming through that other party or such other entities or persons
(each, a "Releasee") from any and all liabilities, obligations and
responsibilities for any and all Released Claims (as defined below).
(b) Release Includes Known and Unknown Claims. The Releasors each
understand and acknowledge that the Released Claims are intended to and do
include any and all claims of every nature and kind whatsoever, whether known,
unknown, suspected or unsuspected which the Releasors has, may have or may claim
to have, against the Releasees based on, related to or arising out of the
Released Claims. The Releasors each hereby expressly and knowingly waive the
provisions and benefits of any applicable statute which would impede waiver of
unknown claims, and hereby acknowledges, agrees, and understands the following
statement or similar language under any statute applicable to the Releasors:
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.
The Releasors also further acknowledge and agree that they may hereafter
discover facts different from, or in addition to, those which the Releasors now
know or believe to be true with respect to the Released Claims, and the
Releasors each agree that, in such event, this Agreement and the release
hereunder shall nevertheless be and remain effective in all respects,
notwithstanding such different or additional facts, or the discovery thereof.
(c) Certain Representations, Warranties and Covenants. Xxxxxxxx hereby
represents, warrants and covenants that as of the date hereof (i) Xxxxxxxx has
read this Agreement in its entirety, has had this Agreement explained by
independent counsel of the its choice and is aware of the contents and legal
effect of each and every provision of this Agreement; (ii) Xxxxxxxx has not
sold, assigned or otherwise transferred any interest in any of the Released
Claims; and (iii) Xxxxxxxx will not participate in, commence or permit (to the
extent within its control) the assertion or commencement of any demand,
allegation, litigation or similar proceeding or action relating to any Released
Claims (including any direct or derivative claim) and will not encourage, assist
or cooperate with any person pursuing or asserting any Released Claim, against
any Mondas.
(d) Indemnification. In the event that Xxxxxxxx breaches any of the
representations, warranties and covenants in this Agreement, Xxxxxxxx shall
indemnify and hold harmless the Releasees from any and all claims, losses,
damages, expenses, obligations and liabilities, including court costs, the cost
of any investigation, expert witnesses and preparation, and the reasonable
attorneys' fees associated therewith, which arise or result therefrom or are
incident or related thereto.
(e) Definition of Released Claims. As used in this Agreement, "Released
Claims" mean any and all actual or alleged Indebtedness, liabilities, claims,
actions, suits, causes of action, obligations, debts, controversies, disputes,
promises, contracts, liens, judgments, agreements, promises or demands of any
kind or nature, whether known or unknown, foreseen or unforeseen, direct or
derivative, both at law and in equity, that Xxxxxxxx may or could have had or
could claim to have had now or in the future against the Releasees arising out
of, resulting from or relating or incident to any act or omission in connection
with transactions, contracts, officer and director appointments, employment
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agreements or business dealings, or proposed transactions, contracts, officer
and director appointments, employment agreements or business dealings, between
Xxxxxxxx and Mondas, through and up to the Closing Date.
8. Miscellaneous.
(a) Interpretation; Rules of Construction. This Agreement has been mutually
negotiated by the parties and is to be interpreted according to its fair meaning
and not strictly for or against any such party. Xxxxxxxx waives any rule of law
or judicial precedent that provides that contractual ambiguities are to be
construed against the party who shall have drafted the contractual provision in
question. References in this Agreement to Sections or subsections are to
Sections and subsections of this Agreement unless expressly indicated otherwise.
"Including" means "including without limitation" and "or" is used in the
inclusive sense of "and/or."
(b) Governing Law. This Agreement shall be governed by and construed under
the internal laws of the State of Delaware, without regard to any principles of
conflicts or choice of laws.
(c) Parties in Interest. Nothing in this Agreement, expressed or implied,
is intended to confer upon any person or entity other than Mondas and the other
Releasees (who are intended to be third party beneficiaries of this Agreement)
any rights or remedies under or by reason of this Agreement.
(d) Severable Provisions. In the event that any provision of this Agreement
would be held to be invalid, prohibited or unenforceable in any jurisdiction for
any reason, unless such provision is narrowed by judicial construction, this
Agreement shall, as to such jurisdiction, be construed as if such invalid,
prohibited or unenforceable provision had been more narrowly drawn so as not to
be invalid, prohibited or unenforceable.
(e) Headings. The Section and subsection headings are inserted only as a
matter of convenience and for reference and in no way define, limit or describe
the scope or intent of any provision of this Agreement.
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IN WITNESS WHEREOF, this Agreement has been executed and delivered as of
the date first above written.
MONDAS MINERALS CORP.
By: /s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx
Chief Executive Officer
/s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx, an individual
NOTARY ACKNOWLEDGEMENT:
CCG ACKNOWLEDGEMENT:
CONSUMER CAPITAL GROUP INC.
By: /s/ Xxxx Xxx
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Xxxx Xxx
Chief Executive Officer
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