EXHIBIT 10.2
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SETTLEMENT AGREEMENT
This Settlement Agreement (this "Agreement") is dated as of this 25th day
of January, 2005 between ▇▇▇▇▇▇.▇▇▇, Inc., a Delaware corporation ("CDK") and
Investor Relations Services, Inc., a Delaware corporation ("Consultant").
1. CDK entered into a Consulting Agreement dated October 20, 2004 with
Consultant (the "Consulting Agreement").
2. The parties wish to terminate the Consulting Agreement, on the terms
set forth herein.
NOW, THEREFORE, for good and valuable consideration, the parties, intending
to be legally bound, agree as follows:
1. SETTLEMENT TERMS. Subject to the terms and conditions herein stated, the
parties respective obligations are hereby settled by CDK delivering to
Consultant the sum of $10 (the "Settlement Consideration"). Consultant
acknowledges the receipt of the Settlement Consideration.
2. MUTUAL RELEASES. Each party hereto, such party's heirs, assigns and
agents, do hereby fully and forever, release, waive and discharge each of
the parties hereto, and their respective officers, directors, shareholders,
agents, employees, successors and assigns, (hereinafter collectively
referred to as the "Releasees") from and against each and every claim,
demand, cause of action, obligation, damage, complaint, expense or action
of any kind, description or nature whatsoever, known or unknown, suspected
or unsuspected, that each party has or may hereafter have, against the
Releasees arising out of the Consulting Agreement; provided, however, CDK;s
release shall not be effective until it has received the "Settlement
Consideration" described in a Settlement Agreement executed this day
between CDK and Summit Trading Limited, an international business
corporation organized under the laws of the Bahamas ("STC") and CDK's
transfer agents accepts the documentation presented by STC presented
therewith. This mutual release specifically excludes the rights of CDK and
obligations of Consultant under Sections 8 and 9 of the Consulting
Agreement.
3. REPRESENTATIONS OF CONSULTANT. Consultant represents, warrants and
agrees that Consultant has the full legal right and power and all authority
and approval required to enter into, execute and deliver this Agreement and
to perform fully his obligations hereunder. This Agreement has been duly
executed and delivered by Consultant and, assuming due execution and
delivery by, and enforceability against, CDK constitutes the valid and
binding obligation of Consultant enforceable in accordance with its terms,
subject to the qualifications that enforcement of the rights and remedies
created hereby is subject to (i) bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting the rights and
remedies of creditors, and (ii) general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or at
law). No approval or consent of, or filing with, any governmental or
regulatory body, and no approval or consent of, or filing with, any other
person is required to be obtained by Consultant or in connection with the
execution and
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delivery by Consultant of this Agreement and consummation and performance
by him of the transactions contemplated hereby. The execution, delivery and
performance of this Agreement by Consultant and the consummation of the
transactions contemplated hereby in accordance with the terms and
conditions hereof by Consultant will not:
(a) knowingly violate, conflict with or result in the breach of
any of the material terms of, or constitute (or with notice or lapse
of time or both would constitute) a material default under, any
contract, lease, agreement or other instrument or obligation to which
Consultant is a party or by or to which any of the properties and
assets of Consultant may be bound or subject;
(b) violate any order, judgment, injunction, award or decree of
any court, arbitrator, governmental or regulatory body, by which
either Consultant or the securities, assets, properties or business of
Consultant is bound; or
(c) knowingly violate any statute, law or regulation.
4. NO ADMISSION. The parties agree that the execution of this Agreement is
not an admission by any of them of liability with respect to damages.
5. MISCELLANEOUS PROVISIONS.
5.1 Severability. In the event that any provision of this Agreement is
found to be illegal or unenforceable by any court or tribunal of competent
jurisdiction, then to the extent that such provision may be made
enforceable by amendment to or modification thereof, the Parties agree to
make such amendment or modification so that the same shall be made valid
and enforceable to the fullest extent permissible under existing law and
public policies in the jurisdiction where enforcement is sought, and in the
event that the Parties cannot so agree, such provision shall be modified by
such court or tribunal to conform, to the fullest extent permissible under
applicable law, to the intent of the Parties in a valid and enforceable
manner, if possible and if not possible, then be stricken entirely from the
Agreement by such court or tribunal and the remainder of this Agreement
shall remain binding on the parties hereto.
5.2 Amendment. No amendment or modification of the terms or conditions
of this Agreement shall be valid unless in writing and signed by the party
or parties to be bound thereby.
5.3 Governing Law. This Agreement shall be interpreted, construed,
governed and enforced according to the internal laws of the State of New
York without regard to conflict or choice of law principles of New York or
any other jurisdiction. This Agreement shall be executed in New York and is
intended to be performed in New York. In the event of litigation arising
out of this Agreement, the parties hereto consent to the personal
jurisdiction of the State of New York, and agree to exclusively litigate
said actions.
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5.4 No Waiver. If any party to this Agreement fails to, or elects not
to enforce any right or remedy to which it may be entitled hereunder or by
law, such right or remedy shall not be waived, nor shall such nonaction be
construed to confer a waiver as to any continued or future acts, nor shall
any other right or remedy be waived as a result thereof. No right under
this Agreement shall be waived except as evidenced by a written document
signed by the party waiving such right, and any such waiver shall apply
only to the act or acts expressly waived in said document.
5.5 Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart will, for all purposes, be deemed
an original instrument, but all such counterparts together will constitute
but one and the same Agreement.
5.6 Binding Agreement. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto, and upon their respective
heirs, successors, assigns and legal representatives.
5.7 Counsel. Each of the parties hereto represents that it, she or he
has consulted legal counsel in connection with this Agreement, or has been
given full opportunity to review this Agreement with counsel of his, her or
its choice prior to execution thereof and has elected not to seek such
counsel. The parties hereto waive all claims that they were not adequately
represented in connection with the negotiation, drafting and execution of
this Agreement. Each party further agrees to bear its own costs and
expenses, including attorneys' fees, in connection with the Action and this
Agreement. If any Party initiates any legal action arising out of or in
connection with enforcement of this Agreement, the prevailing Party in such
legal action shall be entitled to recover from the other Party all
reasonable attorneys' fees, expert witness fees and expenses incurred by
the prevailing Party in connection therewith.
5.8 Notices. All notices and demands permitted, required or provided
for by this Agreement shall be made in writing, and shall be deemed
adequately delivered if delivered by hand or by mailing the same via the
United States Mail, prepaid certified or registered mail, return receipt
requested, or by priority overnight courier for next business day delivery
by a nationally recognized overnight courier service that regularly
maintains records of its pick-ups and deliveries and has daily deliveries
to the area to which the notice is sent, addressed to the parties at their
respective addresses as shown below:
Name Address
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To CDK: ▇▇▇▇▇▇.▇▇▇, Inc.
▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇, President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a Copy To: ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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To Consultant: Investor Relations Services, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Facsimile: ______________________
Notices delivered personally shall be deemed communicated as of the
date of actual receipt. Notices mailed as set forth above shall be deemed
communicated as of the date three (3) business days after mailing, and
notices sent by overnight courier shall be deemed communicated as of the
date one (1) business day after sending.
5.9 Entire Agreement. This Agreement and the Exhibits hereto set forth
the entire agreement and understanding of the parties hereto in respect of
the subject matter contained herein, and supersedes all prior agreements,
promises, understandings, letters of intent, covenants, arrangements,
communications, representations or warranties, whether oral or written, by
any party hereto or by any related or unrelated third party. All exhibits
attached hereto, and all certificates, documents and other instruments
delivered or to be delivered pursuant to the terms hereof are hereby
expressly made a part of this Agreement, and all references herein to the
terms "this Agreement", "hereunder", "herein", "hereby" or "hereto" shall
be deemed to refer to this Agreement and to all such writings.
5.10 Successors and Assigns. As used herein the term "the Parties"
shall include their respective successors in interest, licensees or
assigns.
5.11 Documents. At the conclusion of the Action, each Party shall
return to the other all documents and papers produced by the other in
connection with the Action.
5.12 Execution. Each person who signs this Agreement on behalf of a
corporate entity represents and warrants that he has full and complete
authority to execute this Agreement on behalf of such entity. Each party
shall bear the fees and expenses of its counsel and its own out-of-pocket
costs in connection with this Agreement.
5.13 Captions. The captions appearing in this Agreement are for
convenience only, and shall have no effect on the construction or
interpretation of this Agreement.
[SIGNATURE PAGE FOLLOWS]
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Executed by the Parties on this 25th day of January, 2005.
CONSULTANT:
INVESTOR RELATIONS SERVICES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President and CEO
COMPANY:
▇▇▇▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇▇, President
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