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EXHIBIT 10.44
SETTLEMENT INCLUDING GENERAL RELEASE AND STOCK PURCHASE AGREEMENT
This Settlement Including General Release And Stock Purchase
Agreement (hereafter "Agreement") is dated for purposes of reference as of July
11, 2000, by and between William J. Kliss, an individual (herein "Kliss" and the
"Plaintiff"), and Auto-Graphics, Inc., a California corporation (the "Company"),
in reference to that certain complaint and action filed by Kliss in Orange
County Superior Court, Case No. 000004363, captioned William Kliss v.
Auto-Graphics, Inc., et al. (the "Action") and Sixty-Five Thousand and Five
Hundred (65,500) shares of the Company's issued and outstanding Common Stock
standing in the name of or otherwise owned or held by Kliss (the "Kliss Stock").
Kliss and the Company are sometimes collectively referred to herein as the
"Parties").
RECITALS
WHEREAS, the Action is pending in the above referenced Court,
and the Parties desire to and hereby do agree to finally and forever compromise,
adjust, resolve, settle and dismiss with prejudice in its entirety and for all
purposes the Action and to finally resolve and dispose of any and all claims and
matters between, among or otherwise involving them (the "Settlement"); and
WHEREAS, the Parties also desire to arrange and provide for the
purchase, sale and transfer of the Kliss Stock from Kliss to the Company and/or
its designee purchasers (collectively herein the "Company");
WHEREAS, this Agreement memorializes the terms and conditions of
the Parties' agreements in respect of the Settlement and the purchase, sale and
transfer of the Kliss Stock;
NOW, THEREFORE, in consideration of the mutual promises, covenants,
representations and warranties contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties hereby agree as follows:
1. Incorporation of Recitals.
The foregoing Recitals are incorporated herein and made a part of this
Agreement by this reference.
2. Payment to Kliss.
Upon the execution of this Agreement by the Parties, and the delivery to
the Company of the Kliss Stock, and as full payment to Kliss for or otherwise in
respect of the Settlement (including the Dismissal as provided for in Section 3
herein) and the purchase, sale and transfer of the Kliss Stock as provided for
in Section 6 of this Agreement, the Company shall pay Kliss a total of Two
Hundred and Twenty Five Thousand Dollars ($225,000) as follows:
2.1 Down Payment. One Hundred Thousand Dollars ($100,000) in the
form of the Company's check payable to "William J. Kliss and Joel W. Baruch";
and
2.2 Promissory Note. The Company's promissory note in the
principal amount of One Hundred and Twenty Five Thousand Dollars ($125,000) in
the form attached hereto and incorporated herein as Exhibit A (the "Promissory
Note").
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Except for the above referenced payments (Section 2.1 and 2.2), the Company
shall not be obligated to pay, and Kliss shall not be entitled to receive, any
additional payments of money of whatsoever kind or nature or (other than the
Release In Favor Of Kliss as provided for in Section 4) other consideration of
any kind of nature whatsoever under or otherwise in respect of this Agreement
including without limitation for and in respect of the Settlement and the sale
and transfer of the Kliss Stock by Kliss).
3. Dismissal of Action.
The Parties will forthwith jointly sign and file with the above
referenced Court where the Action is pending the Request For Dismissal (entire
action, all parties, with prejudice, all parties to bear their own costs)
attached hereto and incorporated herein as Exhibit B ("Dismissal"); and the
Parties will jointly take such further action as the Court may request or
otherwise require to accomplish the Settlement and the Dismissal of the Action
as provided for herein until such time as the Action is actually, fully and
finally dismissed.
4. Mutual Releases Between And In Favor Of Kliss and the Company.
For and in consideration of the mutual promises and considerations as
set forth herein, the Company including for and on behalf of its agents,
attorneys, representatives, successors in interest, assigns, and all persons
claiming rights under it, if any, hereby fully, completely and generally release
and discharge Plaintiff (Kliss) including his agents, attorneys,
representatives, successors in interests, assigns, and all persons claiming
rights under him, if any, from any and all claims and causes of action of any
kind, nature and description whatsoever, known or unknown, fixed or contingent,
liquidated or unliquidated, which the Company had, has, may have or claims to
have against the Plaintiff arising from or in connection with the Action, the
sale, purchase and transfer of the Kliss Stock and otherwise (the "Release In
Favor Of Kliss").
For and in consideration of the mutual promises and considerations as
set forth herein, Plaintiff (Kliss) including for and on behalf of his agents,
attorneys, representatives, successors in interests, assigns, and all persons
claiming rights under him, if any, hereby fully, completely and generally
releases and discharges the Company including its agents, attorneys,
representatives, predecessors and successors in interests, assigns, subsidiaries
and all persons claiming rights under, relating to or derivative of the Company,
if any, from any and all claims and causes of action of any kind, nature and
description whatsoever, known or unknown, fixed or contingent liquidated or
unliquidated, which Plaintiff either had, presently has, or may claim to later
have, against the Company arising from or in connection with either the Action,
the purchase, sale and transfer of the Kliss Stock or otherwise (the "Release In
Favor Of the Company"). The Release In Favor of Kliss and the Release In Favor
Of The Company are collectively referred to herein as the "Mutual Releases".
5. Waiver of Provisions of California Civil Code Section 1542.
Without limiting the general effect of the Mutual Releases being
provided for herein, the Parties acknowledge that it is their intention by
granting the Mutual Releases set forth herein, to release each other from any
and all liability arising from or in connection with the Action and the Kliss
Stock sale, purchase and transfer transaction provided for herein. In connection
with the above referenced Mutual Releases as specifically described and provided
for in this Agreement and for no other purpose, each of the Parties hereby
waives the
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provisions of Section 1542 of the Civil Code of the State of California which
reads 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."
Each of the Parties hereto acknowledges, warrants and represents that
they fully understand the terms contained herein, the respective waiver of
Section 1542 of the Civil Code of the State of California, that they understand
the significance of this Agreement and the matters provided for herein and
further, that each of the Parties hereto relies solely on such Party's judgment
and in so doing each of the Parties voluntarily accepts the terms set forth
above for the purpose of making a full and final compromise, adjustment,
resolution, and settlement of any claims, causes of action and damages which any
of the Parties may have suffered, claims to have suffered or may suffer in
connection with the Mutual Releases in the future. Each of the Parties further
warrant and represent that they have been advised by their respective legal
counsel, and that each such Party is acting knowingly and intelligently, among
other things, upon the advice provided by their respective counsel.
6. Kliss Stock Transaction. In consideration of this Agreement,
including the Settlement and the sale, purchase and transfer of the Kliss Stock
and the payment by the Company to Kliss as provided for in Section 2 of this
Agreement, Kliss agrees to sell, assign and transfer, and the Company (including
its designees as provided for elsewhere herein) agrees to purchase, acquire and
receive, the Kliss Stock. Kliss agrees to provide the Company with a stock power
covering the Kliss Stock in form and substance satisfactory to cause the
transfer of the Kliss Stock by the Company's stock transfer agent on the stock
books and records of the Company; and further Kliss agrees to take such other
action as may reasonably be requested or deemed necessary by the Company to
accomplish the subject stock transfer. The allocation of the payment provided
for in Section 2 of this Agreement to and in respect of the sale by Kliss and
the purchase of the Kliss Stock shall be determined by the Company (with the
concurrence of its outside accounting firm). Kliss agrees to look solely to the
Company (Auto-Graphics, Inc.) for payment of the Promissory Note.
7. Recovery of Attorney's Fees and Costs.
In respect of the Action, the Settlement and the sale, purchase and
transfer of the Kliss Stock transaction, the Parties agree to and shall bear
their own costs including attorneys' fees. In the event of any dispute, however,
to enforce or interpret the terms of this Agreement by any Party hereto, the
prevailing party in said dispute shall be entitled to be awarded reasonable
attorney's fees as costs, together with all other costs paid or incurred in
connection therewith.
8. Holder of Rights.
Each of the Parties acknowledges and agrees that they have not at any
time assigned or transferred any rights or remedies that they may have against
the other which, but for any such assignment would be subject to the Mutual
Releases being conveyed herewith, and that they have the complete and
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requisite authority to execute this Agreement and to bind themselves hereto.
Further, Kliss acknowledges and agrees that he is the sole and exclusive owner
and holder of the Kliss Stock, that such Kliss Stock is free and clear of any
and all liens, claims, encumbrances and restrictions; and that he is entitled to
sell and transfer the Kliss Stock to the Company as provided for in this
Agreement, and that the entering into this Agreement and the sale and transfer
of the Kliss Stock by Kliss as provided for herein will not violate any
agreement or arrangement in respect of such Stock that Kliss has or may be
obligated under with any third person or entity.
9. Not An Admission of Liability.
The execution and delivery of this Agreement and the performance of the
terms and conditions contained herein shall not constitute nor be construed as
an admission of any guilt, fault, liability, wrong doing or sanctionable
activity on the part of any of the Parties hereto. This Agreement is executed
voluntarily by each of the Parties hereto without any duress or undue influence
on the part of, or on behalf or, any of them, and is made for the sole purpose
of the compromise and settlement of the Action and within disputed claims and
providing for the sale, purchase and transfer of the Kliss Stock.
10. Execution of Counterparts.
It is understood that this Agreement may be executed in any number of
counterparts, which shall, in the aggregate be signed by all Parties hereto, and
each counterpart so signed shall be deemed an original instrument and all
counterparts taken together shall constitute an original. Counterpart execution
of this Agreement may be transmitted by facsimile and such facsimile signatures
shall have the force and effect of an original signature, and be deemed an
original for all purposes.
11. Interpretation And Enforcement.
This Agreement shall be deemed to have been made, executed and delivered
within the State of California, and the rights and obligations of the Parties
hereto shall be construed, interpreted and enforced in accordance with and
governed by the law of said State.
12. Fully Integrated Agreement; Amendments.
This Agreement constitutes the entire understanding and agreement
between the Parties with respect to the subject matter hereof and is intended to
supersede all prior and contemporaneous written or oral agreements and
discussions. This Agreement may be amended only by an agreement in writing and
signed by all the Parties hereto. Each of the Parties represents and warrants,
and agrees with the other, that in entering into and performing this Agreement,
they have not received and are not otherwise relying upon any statement, fact,
circumstance, representation, understanding, agreement, covenant, promise,
guaranty, warranty, assurance and/or any other matter which is/are not expressly
set forth in this Agreement; and that they will not at any time assert otherwise
(whether by way of any claims in contract, tort, or otherwise), in any action,
proceeding or otherwise against or in respect of any of such Parties to this
Agreement.
13. Rules of Construction.
Each of the Parties hereto acknowledges having fully participated and
cooperated in the negotiations, drafting, and preparation of this Agreement, and
the opportunity to make such revisions and/or modifications as
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they deemed necessary and desirable. Accordingly, the Parties agree that any
rule of construction of contracts resolving any ambiguities against the drafting
party shall be inapplicable to this Agreement.
14. Voluntary Execution On Advice of Independent Counsel.
Each of the respective Parties hereto acknowledge having received their
own independent legal advice and counsel with respect to this Agreement and the
Settlement, and that they have been fully advised as to the terms, provisions,
consequences and effects hereof, and that they are entering into this Agreement
knowingly and voluntarily, without duress or coercion of any kind or nature
whatsoever.
15. Covenant to Reasonably Cooperate in Good Faith.
Subsequent to the execution of this Agreement, each of the Parties
agrees and promises to take all appropriate action, and agrees to promptly and
properly execute and deliver any and all documents of any kind which may be
reasonable, necessary and/or desirable to carry out the terms, provisions and
intent of this Agreement as stated herein. The failure or refusal of any of the
Parties hereto to comply with this provision shall, following written notice and
demand therefor which is not cured by the Party receiving any such notice/demand
within ten (10) days of receipt of any such notice/demand, be deemed a material
breach of this Agreement.
(signatures appear on the next page)
IN WITNESS WHEREOF, the Parties have executed duplicate originals of
this Agreement effective as of the date first set forth above.
William J. Kliss
Dated: August ___, 2000
AUTO-GRAPHICS, INC.
(the "Company")
By
--------------------------------
Michael K. Skiles, President
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Dated: August ___, 2000
APPROVED AS TO FORM
LAW OFFICES OF JOEL W. BARUCH, P.C.
By
------------------------------------------
Joel W. Baruch, Esq.
(signatures continued on the following page)
APPROVED AS TO FORM
ROBERT H. BRETZ, P.C.
By
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Robert H. Bretz, Esq.
SPOUSAL CONSENT
The undersigned wife of William J. Kliss effective as of the date of
this Agreement, having had the opportunity to consult with an attorney of her
own choice regarding this Agreement and the matters provided for herein,
including without limitation the Settlement, the Dismissal and the Kliss Stock
sale, purchase and transfer transaction, does hereby acknowledge this Agreement
and such matters and approve, consent to and ratify such Agreement and all such
matters if, and to the extent, that the undersigned has any community or other
interest in the subject matter of this Agreement including without limitation
the Kliss Stock.
Dated: August ___, 2000
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PROMISSORY NOTE
$125,000 August __, 2000
FOR VALUABLE CONSIDERATION, the undersigned AUTO-GRAPHICS, INC., a
California corporation (the "Company"), hereby promises to pay to William J.
Kliss and Joel W. Baruch, Esq., or order (the "Payee"), the principal sum of ONE
HUNDRED AND TWENTY-FIVE THOUSAND DOLLARS ($125,000) in fifteen equal monthly
installments of $8,333.33 beginning on September 10, 2000 and on the 10th of
each successive month thereafter until the principal amount has been paid in
full. Together with the last monthly installment payment, the Company shall also
pay the Payee an additional amount equal to interest on the unpaid balance of
this Promissory Note, from the date hereof until the time of such final
installment payment, at the rate of Five Percent (5%) per year.
If any payment required to be made by the Company hereunder is not paid
as scheduled, then the Payee will provide the Company with written demand for
such payment and the Company shall make any such payment to the Payee within ten
(10) days following the receipt of such notice by the Company. If such required
payment is not made within such notice/cure period, then the Payee may at its
option and by written notice to the Company accelerate the balance of the unpaid
principal amount of this Promissory Note as all due and owing as of the date of
such notice of acceleration.
If legal action is instituted by the Payee on this Promissory Note for
any reason then, in addition to whatever relief the Payee may be entitled to by
such action, the Payee shall also recover his/its costs including reasonable
attorney's fees paid or incurred as a result of such legal action including any
appeal thereof.
Other than the notice of non-payment and opportunity to cure as herein
provided for, and any possible notice of acceleration by the Payee if any
hereunder, no further demand, notice of non-payment, presentment or other legal
formality shall be required of or by the Payee prior to the initiation of legal
action by the Payee on this Promissory Note.
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EXHIBIT A
This Promissory Note is expressed and shall be paid in the currency of
the United States. This Promissory Note is made and shall be governed and
interpreted for all purposes under the laws of the State of California.
This Promissory Note is made in reference to that certain Settlement
Including General Release And Stock Purchase Agreement dated as of even date
herewith. This Promissory Note memorializes all of the terms and conditions of
the obligation represented by this Note, and may only be changed, amended or
otherwise modified by a further writing signed by the Company so stating.
IN WITNESS THEREOF, the undersigned thereunto duly authorized has been
executed by the Company as of the date first above stated.
AUTO-GRAPHICS, INC.
By ----------------------------
Michael K. Skiles, President
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EXHIBIT B
(request for dismissal form to be prepared by Baruch)