Exhibit 10.1
SETTLEMENT & GENERAL RELEASE
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This SETTLEMENT AGREEMENT AND GENERAL RELEASE is entered into as of the
21st day of June, 2005 by and between Xxxx Xxxxx Corp., a Florida corporation
(the "Company") and 21st Century Technologies, Inc., a Nevada corporation
("TFCY").
WHEREAS, TFCY has asserted certain claims against the Company said to arise
out of all agreements between the Company and TFCY from July 2003 until the
date above (as supplemented) and/or certain transactions between or among the
Company and various third parties; and
WHEREAS, in connection with such claims TFCY has alleged that it has
suffered damages, including cash placement of $708,925.74 (outlined on Exhibit A
and incorporated by reference herein), and warrants to purchase an aggregate of
$708,925.74 worth of the Company's common stock at priced outlined in various
agreements entered into between the parties ("Prior Funding Agreements"); and
WHEREAS, the parties desire to settle all claims of whatever kind between
them without admission of liability of any kind, subject to the terms and
conditions hereof;
NOW THEREFORE, in consideration of the premises and the undertakings set
forth herein, and intending to be fully bound hereby, the parties agree:
1. Effective as of the date hereof and upon the satisfaction of the conditions
precedent set forth in paragraph 2 below, any and all agreements of whatever
kind between the Company and TFCY are hereby cancelled and terminated and shall
have no further force or effect. Neither party shall have any further rights or
obligations under any such agreements.
2. The Company hereby agrees to pay to TFCY the sum of $710,000 in a
convertible debenture dated June 21, 2005 which is attached hereto as Exhibit B
and is incorporated herein by this reference. A condition precedent to the
effectiveness of this Settlement and General Release is the execution of the
Convertible Debenture by duly authorized representatives of the Company, as
obligor under the Convertible Debenture, and Dutchess Private Equities Fund, II,
as Guarantor under the Convertible Debenture.
3. For and in consideration of such payment by the Company and other good and
valuable consideration the receipt and sufficiency of which is hereby
acknowledged, TFCY (for itself and its respective past, present and future
administrators, affiliates, agents, assigns, attorneys, directors, employees,
executors, heirs, insurers, parents, partners, predecessors, representatives,
servants, successors, transferees, and all persons acting by, through, under or
in concert with any of them) hereby absolutely and irrevocably releases, waives,
relinquishes, renounces and discharges forever the "Company" and its past,
present and future administrators, affiliates, agents, assigns, attorneys,
directors, employees, employers, executors, heirs, insurers, officers, managers,
parents, partners, predecessors, representatives, servants, shareholders,
subpartners, subsidiaries, successors, transferees, underwriters, clients,
customers, and each of them, and all persons acting by, through, under or in
concert with any of them from any and all claims, suits, damages, debts, liens,
liabilities, obligations, promises, judgments, demands, losses, causes of
actions (including causes of action for tortuous conduct, fraud, fraudulent
inducement or otherwise), rights, costs and expenses (including, without
limitation, attorneys' fees and expenses) of every kind, nature and description,
in law or in equity, whether the same be known or unknown, or known in the
future, billed or unbilled, suspected or unsuspected, absolute or contingent,
disclosed or undisclosed, direct or indirect or nominally or beneficially
possessed or claimed by the Releasor, relating to or arising out of any
contract, arrangement, understanding or agreement that TFCY may have and/or may
have had with the Company from the beginning of time through the date hereof,
including by way of illustration and not limitation the Prior Funding Agreements
and any documents entered into in connection therewith (collectively, the
"Released Claims");
4. If TFCY brings any claim, suit, action or manner of action against any the
Company in administrative proceedings, in arbitration, at law, in equity or
mixed, in any way connected with, relating to or arising out of the Released
Claims, then TFCY agrees to indemnify and hold harmless the Company in the
amount of any final monetary judgment or settlement and any related costs
(including, without limitation, its reasonable attorneys' fees and expenses)
entered against, paid or incurred by the Company. TFCY hereby warrants and
represents that there has been no assignment, conveyance, encumbrance,
hypothecation, pledge or other transfer of any interest or any matter covered by
this Agreement. If, for any reason, a court of competent jurisdiction shall hold
by final non-appealable order that any Released Claim purported to be released
hereby is not so released, then this Agreement shall nonetheless be and remain
effective with respect to each and every other Released Claim released hereby.
5. For and in consideration of the promises, forbearances and agreements
provided by TFCY and for other good and valuable consideration, the receipt of
which is hereby acknowledged, the Company hereby releases and forever discharges
TFCY, together with its past, present and future officers, directors,
shareholders, employees, agents, representatives, customers, subsidiaries,
parent companies and affiliates, and their successors, heirs and assigns, from
any and all claims, demands, damages, actions, causes of action, suits, debts,
liabilities and obligations, liens, costs and expenses of any nature, character
and description, known or unknown, accrued or not yet accrued, anticipated or
unanticipated, arising from or related to any and all business transactions,
contracts, or other activities between or among the parties from the beginning
of time to the date hereof.
6. If Company brings any suit, claim, action or other proceeding against TFCY
and/or any of the persons or entities subject to the release of claims set forth
in paragraph 5 hereof, whether in administrative proceedings, arbitration, at
law, in equity and/or mixed, with regard to any matter related to, connected
with or arising out of any claims subject to the release of claims, then the
Company agrees to indemnify and hold harmless TFCY and any person subject to the
release of claims in the amount of any final monetary judgment or settlement and
any related costs (including without limitation attorney fees and litigation
expenses) entered against, paid or incurred by TFCY. The Company hereby
represents and warrants that there has been no assignment, conveyance,
hypothecation, encumbrance, pledge or other transfer of any interest or any
matter covered by this Agreement. If for any reason, a court of competent
jurisdiction shall hold by final non-appealable order that any of the claims
released pursuant to paragraph 5 hereof were not or cannot be released, then
this Agreement shall nonetheless remain in full force and effect as to any and
all other claims subject to release pursuant to paragraph 5.
7. This Agreement sets forth the entire agreement of the parties relating to
the subject matter hereof and supersedes any other agreement verbal or written.
Both Company and TFCY acknowledge that they have consulted legal counsel
regarding the contents and effect of this Agreement and that they are entering
into this agreement knowing that doing so will terminate their right to assert
any legal claims against the other party in the future.
8. This Agreement shall be governed by and construed in accordance with the
laws of the State of Nevada, without regard to conflicts of laws principles that
would result in the application of the substantive law of another jurisdiction.
This Release may not be amended or modified except by an instrument in writing
signed by each party.
THE PARTIES AGREE THIS RELEASE MAY BE DELIVERED AND/OR RETURNED BY TELEPHONE
FACSIMILE IN ONE OR MORE COUNTERPART COPIES, AND THE PARTIES MAY RELY UPON THE
SIGNATURES HERETO WHETHER IN ORIGINAL OR FACSIMILE COPY.
Dated June 21, 2005
AGREED AND ACCEPTED
By 21st Century Technologies, Inc. and duly authorized to sign:
By: /s/ Xxxx X. Dumble_
Name: Xxxx X. Xxxxxx
Title: Chief Executive Officer
By Xxxx Xxxxx Corporation and duly authorized to sign:
By: /s/ Xxxxxxx D'Agata
Name: Xxxxxxx D'Agata
Title: Interim Chief Executive Officer
