EXHIBIT 10.2
TERMINATION AND GENERAL RELEASE AGREEMENT
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This Termination and General Release Agreement (this "TERMINATION AND
RELEASE AGREEMENT") dated as of June 30, 2003 is by and between SSP Solutions,
Inc. ("SSP SOLUTIONS"), and each of Electronic Data Systems Corporation and EDS
Information Services L.L.C. (referred to collectively hereinafter as ("EDS").
SSP Solutions and EDS may be referred to in this Termination and Release
Agreement individually as a "party" and together as the "parties".
In consideration of the mutual promises and covenants contained in this
Termination and Release Agreement, the parties agree as follows:
1. TERMINATION. This Termination and Release Agreement documents the
mutual understanding and agreement of SSP Solutions and EDS regarding
the termination of that certain Master Services Agreement by and
between SSP Solutions and EDS dated as of November 14, 2001(the "MASTER
SERVICES AGREEMENT") and the associated Task Order 2001-01 effective as
of December 1, 2001 (the "TASK ORDER") issued pursuant to the Agreement
(the Master Services Agreement and the Task Order are sometimes
collectively referred to as the "AGREEMENT"). The parties desire to
terminate the Agreement, and this Termination and Release Agreement
shall serve to release and discharge all remaining obligations between
the parties arising out of or related to the Agreement, to fully and
finally compromise and settle all claims asserted or which could be
asserted by the parties, whether known or unknown, against one another
in connection with the Agreement, and to relieve the parties hereto of
any further expense, obligations and/or liability to one another in
connection with any matters arising out of or relating to the
Agreement, except as expressly stated herein.
2. TERMINATION EFFECTIVE DATE: The termination date of this Termination
and Release Agreement will be effective as of December 31, 2002 (the
"TERMINATION EFFECTIVE DATE").
3. TERMINATED EDS OBLIGATIONS. SSP Solutions acknowledges and agrees that,
upon execution of this Termination and Release Agreement, EDS has no
continued obligation to provide the EDS Services (as defined in the
Agreement) to SSP Solutions, as described in the Task Order or as may
be provided for in any related correspondence. Further, SSP Solutions
agrees that, except as expressly agreed to in this Termination and
Release Agreement, there are no other EDS Services, support, or
deliverables due or expected from EDS. The parties acknowledge that
upon termination of the Agreement as provided hereunder, EDS will not
be liable for damages resulting from such termination.
4. TERMINATED SSP SOLUTIONS OBLIGATIONS. EDS acknowledges and agrees that,
upon execution of this Termination and Release Agreement and payment of
the charges set forth below in Section 5 (the "TERMINATION CHARGES"),
SSP Solutions has no continued obligation to EDS under the Agreement.
Further, EDS agrees that, except as expressly agreed to in this
Termination and Release Agreement, SSP Solutions has no continued or
additional obligation to pay EDS for the EDS Services as described in
the Task Order or as may be described in any related correspondence.
The parties acknowledge that upon termination of the Agreement as
provided hereunder, EDS will not be liable for damages resulting from
such termination.
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5. TERMINATION CHARGES: SSP Solutions and EDS agree that all services
associated with the Task Order were terminated on December 31, 2002. As
a result of the mutually accepted termination, SSP Solutions agrees to
pay to EDS Two Hundred Twenty Thousand Six Hundred Fifty Dollars
($220,650) representing past due charges (the "Charges") for the period
between September 30, 2002 through December 31, 2002, additionally, SSP
Solutions agrees to pay to EDS Nine Thousand Nine Hundred Twenty Nine
Dollars ($9,939) representing interest on the Charges calculated from
August 1, 2002 through May 30, 2003.
2002 PAST DUE CHARGES
August $44,130
September $44,130
October $44,130
November $44,130
December $44,130
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Sub-total Due to EDS $220,650
Interest * 9,929
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Total Due to EDS $230,579
*Interest rate calculated at Citibank prime as of November
2002 + 2% or 6.75% through May 30, 2003.
SSP Solutions agrees to pay the Charges as set forth below.
$18,430 due on or before July 15, 2003
$38,430 due August 1, 2003
$48,430 due September 1, 2003
$48,430 due October 1, 2003
$38,430 due November 1, 2003
$38,430 due December 1, 2003
6. RELEASE BY EDS. EDS releases, acquits, cancels and forever discharges
SSP Solutions and its directors, officers, agents, employees,
attorneys, predecessors, successors, assigns, parents, subsidiaries and
affiliates from all claims, demands, causes of action, debts,
liabilities or controversies of any kind whatsoever, whether in
contract or in tort, whether arising under or by virtue of any statute
or regulation, whether known or unknown, whether having arisen or
hereafter to arise, whether suspected or unsuspected, whether
liquidated or unliquidated, that EDS or any of its directors, officers,
agents, employees, attorneys, predecessors, successors, assigns,
parents, subsidiaries or affiliates may have against SSP Solutions
arising from or relating to the Agreement, except as set forth in
SECTION 5 of this Termination and Release Agreement and provided that
the confidentiality obligations of the Agreement shall survive
termination of the Agreement.
7. REPRESENTATIONS OF EDS. EDS represents and warrants that (a) it has
carefully reviewed this Termination Agreement, (b) it has at all times
been represented by and consulted with legal counsel concerning this
Termination and Release Agreement, (c) any questions that it has
pertaining to this Termination and Release Agreement have been answered
and fully explained to it by its counsel, (d) its decision to execute
this Termination and Release Agreement was not based on any statement
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or representation, either oral or written, made by any person on behalf
of SSP Solutions other than as set forth in this Termination and
Release Agreement, (e) this Termination and Release Agreement
constitutes the entire agreement and understanding between EDS and SSP
Solutions with regard to the subject matter of this Termination and
Release Agreement, and (f) EDS has not assigned, conveyed, hypothecated
or transferred any interest in any actual or potential cause of action
set forth in SECTION 6 of this Termination and Release Agreement. EDS
understands that SSP Solutions is relying upon these representations
and warranties in entering into this Termination and Release Agreement.
8. RELEASE BY SSP SOLUTIONS. SSP Solutions releases, acquits, cancels and
forever discharges EDS and its directors, officers, agents, employees,
attorneys, predecessors, successors, assigns, parents, subsidiaries and
affiliates from all claims, demands, causes of action, debts,
liabilities or controversies of any kind whatsoever, whether in
contract or in tort, whether arising under or by virtue of any statute
or regulation, whether known or unknown, whether having arisen or
hereafter to arise, whether suspected or unsuspected, whether
liquidated or unliquidated, that SSP Solutions or any of its directors,
officers, agents, employees, attorneys, predecessors, successors,
assigns, parents, subsidiaries or affiliates may have against EDS
arising from or relating to the Agreement, except as set forth in this
Termination and Release Agreement and provided that the confidentiality
obligations of the Agreement shall survive termination of the
Agreement.
9. REPRESENTATIONS OF SSP SOLUTIONS. SSP Solutions represents and warrants
that (a) it has carefully reviewed this Termination and Release
Agreement, (b) it has at all times been represented by and consulted
with legal counsel concerning this Termination and Release Agreement,
(c) any questions that it has pertaining to this Termination and
Release Agreement have been answered and fully explained to it by its
counsel, (d) its decision to execute this Termination and Release
Agreement was not based on any statement or representation, either oral
or written, made by any person on behalf of EDS other than as set forth
in this Termination and Release Agreement, (e) this Termination and
Release Agreement constitutes the entire agreement and understanding
between SSP Solutions and EDS with regard to the subject matter of this
Termination and Release Agreement, and (f) SSP Solutions has not
assigned, conveyed, hypothecated or transferred any interest in any
actual or potential cause of action set forth in SECTION 8 of this
Termination and Release Agreement. SSP Solutions understands that EDS
is relying upon these representations and warranties in entering into
this Termination and Release Agreement.
10. Section 1542 of the California Civil Code. The parties intend that this
Termination and Release Agreement be a general release of the claims
described herein. Therefore, each of the parties waives and
relinquishes all rights and benefits that it has, or may have, under
Section 1542 of the Civil Code of the State of California ("Section
1542") or the law of any jurisdiction to the same or similar effect.
Section 1542 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."
11. FULL SATISFACTION. EDS and SSP Solutions each acknowledge full
satisfaction of any and all claims, demands, rights, obligations and
causes of action, legal or equitable, that each may have against the
other, and state that they have reached a complete accord and
satisfaction of all such claims, except as set forth in SECTIONS 5 of
this Termination and Release Agreement.
12. NO ADMISSION. This Termination and Release Agreement does not
constitute an admission of fault, liability or responsibility by any
person or entity released hereby. Such fault, liability or
responsibility is expressly denied. This Termination and Release
Agreement is a settlement of a disputed claim.
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13. CONFIDENTIALITY. Except as may be required either in litigation
involving this Termination and Release Agreement or by legal,
accounting or regulatory requirements beyond the reasonable control of
the disclosing party, EDS and SSP Solutions, and their respective
counsel and agents, shall not ever disclose for any purpose to any
third party any information communicated to the recipient party by the
other party in connection with this Termination and Release Agreement
or the Agreement, including without limitation (a) the terms,
conditions or content of the Agreement or this Termination and Release
Agreement, (b) any negotiations, information or other matters relating
to the Agreement or this Termination and Release Agreement, or (c) any
description or estimate of the value of the settlement set forth in
this Termination and Release Agreement. EDS and SSP Solutions each
acknowledge that violation of this SECTION 13 of this Termination and
Release Agreement by either party would cause the other party
irreparable injury for which it would have no adequate remedy at law,
and the injured party shall be entitled to preliminary and other
injunctive relief against any such violation. Such injunctive relief
shall be in addition to any other remedies or rights which the injured
party may have at law or in equity.
14. NOTICES. All notices under this Termination and Release Agreement will
be in writing and will be deemed to have been duly given if delivered
personally or by a nationally recognized courier service, faxed or
mailed by registered or certified mail, return receipt requested,
postage prepaid, to the parties at the addresses set forth herein. All
notices under this Termination and Release Agreement that are addressed
as provided in this SECTION 14, (a) if delivered personally or by a
nationally recognized courier service, will be deemed given upon
delivery, (b) if delivered by facsimile, will be deemed given when
confirmed and (c) if delivered by mail in the manner described above,
will be deemed given on the fifth business day after the day it is
deposited in a regular depository of the United States mail. Either
party may change its address or designee for notification purposes by
giving notice to the other of the new address or designee and the date
upon which such change will become effective. Notices to SSP shall be
sent to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. Notices
to EDS shall be sent to ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
15. COUNTERPARTS. This Termination and Release Agreement is executed in
several counterparts, each of which shall be deemed an original for all
purposes and all of which shall constitute one and the same instrument.
16. AMENDMENT. This Termination and Release Agreement may be amended or
modified only by a written instrument executed by both EDS and SSP
Solutions.
17. ENTIRE AGREEMENT. This Termination and Release Agreement constitutes
the entire agreement of the parties with respect to the subject matter
hereof. There are no representations, understandings or agreements
between the parties with respect to the subject matter hereof that are
not fully expressed herein.
18. SEVERABILITY. If any provision of this Termination and Release
Agreement is declared or found to be illegal, unenforceable or void,
then both parties shall be relieved of all obligations arising under
such provision, but only to the extent that such provision is illegal,
unenforceable or void, it being the intent and agreement of the parties
that this Termination and Release Agreement shall be deemed amended by
modifying such provision to the extent necessary to make it legal and
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enforceable while preserving its intent, or if that is not possible, by
substituting therefore another provision that is legal and enforceable
and achieves the same objective. If such illegal, unenforceable or void
provision does not relate to the payments to be made to EDS under this
Termination and Release Agreement and if the remainder of this
Termination and Release Agreement shall not be affected by such
declaration or finding and is capable of substantial performance, then
each provision not so affected shall be enforced to the extent
permitted by law.
19. GOVERNING LAW. This Termination and Release Agreement will be governed
by and construed in accordance with the laws, other than conflict of
law rules, of the State of Texas.
IN WITNESS WHEREOF, the parties have duly executed and delivered this
Termination and Release Agreement by their duly authorized representative as of
the Termination Effective Date.
ELECTRONIC DATA SYSTEMS SSP SOLUTIONS, INC.
CORPORATION
By: /S/ ▇▇▇▇▇▇ ▇▇▇▇▇ By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Printed Name: _________________ Printed Name: _______________________
Title: ________________________ Title: ______________________________
EDS INFORMATION SERVICES L.L.C.
By: /S/ ▇▇▇▇▇▇ ▇▇▇▇▇
Printed Name: _______________________________
Title: ______________________________________
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