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EXHIBIT 10.21
STATE OF NORTH CAROLINA
COUNTY OF WAKE
SETTLEMENT AGREEMENT AND
GENERAL RELEASE OF ALL CLAIMS
THIS SETTLEMENT AGREEMENT AND GENERAL RELEASE OF ALL CLAIMS (the
"Settlement Agreement") is entered into effective the 25th day of April, 2001,
by and among High Speed Net Solutions, Inc., a Florida corporation ("High
Speed"), RPC International LLC, a corporation residing in Oklahoma ("RPC"), and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇").
W I T N E S S E T H:
WHEREAS, a dispute has arisen about whether any fees are owed to RPC
and/or to Cropper pursuant to that certain Consulting Agreement between RPC and
High Speed dated December 15, 1999 (the "Consulting Agreement") or for any
transactions among the parties; and
WHEREAS, various allegations have been asserted by Cropper personally
and on behalf of RPC arising out of the Consulting Agreement and the
interactions between and among the parties, including without limitation,
allegations in Cropper's letter to ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇, faxed to ▇▇. ▇▇▇▇▇▇▇ on
January 10, 2001, and the letter of Croppers' counsel to ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇,
dated January 9, 2001 (the "Cropper Allegations"); and
WHEREAS, the parties have entered into a Memorandum of Understanding,
dated January 30, 2001 (the "MOU") relating the to Cropper Allegations; and
WHEREAS, High Speed denies the Cropper Allegations; and
WHEREAS, the parties now desire fully and finally to compromise, settle
and resolve all disputes arising out of or in any way relating to the Consulting
Agreement or the Cropper Allegations, without any admission of liability, and to
avoid litigation expenses and inconvenience on the part of all parties in
connection with this Settlement Agreement the parties contemplate entering into
a Proprietary Information and Noncompetition Agreement of even date herewith
(the "Proprietary Information Agreement").
NOW, THEREFORE, In consideration of the mutual covenants contained
herein, the releases granted hereby and other good and valuable consideration,
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receipt and adequacy of which is hereby acknowledged, it is agreed among the
parties that:
1. High Speed shall pay Cropper $5,000 per month on the first day of
each month for twenty-three months during the period commencing on February 1,
2001 and ending on January 1, 2003 (the "Settlement Funds"). The parties
acknowledge that High Speed paid to Cropper $5,000 upon the parties' entering
into the MOU, and Cropper acknowledges receipt of such payment and that such
payment also represents consideration for Cropper's duties covenants under this
Settlement Agreement. The Settlement Funds will be paid via direct deposit in
U.S. funds to the order of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, on or before the first day of the
month (or on the following business day if the first day of the month falls on a
weekend or federal holiday), to Cropper's BB&T account 5219485664.
2. High Speed agrees to issue to Cropper 30,000 shares of High Speed
common stock (the "Shares") without cost, within thirty (30) days after signing
the Settlement Agreement and the Proprietary Information Agreement. Cropper
shall sign a Subscription Agreement for the Shares in the form attached hereto
as Exhibit A. The Shares shall be restricted voting common stock of High Speed,
and will not carry any special rights or preferences not held by other High
Speed common stockholders, and shall be stamped or imprinted with a legend in
substantially the following form:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT BE
SOLD OR OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT RELATED THERETO UNDER SAID ACT
OR AN EXEMPTION FROM REGISTRATION."
3. Cropper agrees to execute the Proprietary Information And
Noncompetition Agreement in the form attached hereto as Exhibit B on his own
behalf and in his capacity as executive of RPC with authority to bind RPC.
Cropper acknowledges that he has authority to bind RPC to the Proprietary
Information and Noncompetition Agreement.
4. Cropper hereby, on his own behalf, in his capacity as an executive
of RPC with authority to bind RPC, and on behalf of his heirs, successors and
assigns, and on behalf of RPC and any affiliates of RPC, releases, acquits, and
forever irrevocably releases and discharges High Speed, its past and present
agents, employees, officers, directors, owners, subsidiaries, affiliates,
divisions, predecessors, successors, shareholders, partners, representatives,
control persons,
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joint venturers, partnerships, insurers, and attorneys, as well as the
successors and assigns of same, from any and all claims, demands, charges,
lawsuits, defenses, actions or causes of action, obligations, damages, costs,
expenses, attorneys' fees or liabilities whatsoever, at law or in equity,
whether known or unknown, which Cropper and/or RPC had, now have, or may have
from the beginning of time to the date of this Agreement, including without
limitation, the Cropper Allegations.
5. RPC hereby, on its own behalf, and on behalf of its subsidiaries,
divisions, affiliates, predecessors, successors and assigns of same, releases,
acquits, and forever irrevocably releases and discharges High Speed, its past
and present agents, employees, officers, directors, owners, subsidiaries,
affiliates, divisions, predecessors, successors, shareholders, partners,
representatives, control persons, joint venturers, partnerships, insurers, and
attorneys, as well as the successors and assigns of same, from any and all
claims, demands, charges, lawsuits, defenses, actions or causes of action,
obligations, damages, costs, expenses, attorneys' fees or liabilities
whatsoever, at law or in equity, whether known or unknown, which RPC had, now
has, or may have from the beginning of time to the date of this Agreement,
including, without limitation, the Cropper Allegations.
6. High Speed, hereby on its own behalf of its subsidiaries, divisions,
affiliates, predecessors, successors and assigns of same, releases, acquits and
forever irrevocably releases and discharges Cropper, his heirs, successors and
assigns, and RPC, its past and present agents, employees, officers, directors,
owners, subsidiaries, affiliates, divisions, predecessors, successors,
shareholders, partners, representatives, and control persons, from any and all
claims, demands, charges, lawsuits, defenses, actions or causes of action,
obligations, damages, costs, expenses, attorneys' fees or liabilities
whatsoever, at law or in equity, whether known or unknown, which Cropper or RPC
had, now or may have from the beginning of time to the date of this Agreement.
7. Cropper and RPC shall take no action against High Speed or any of
its past and present agents, employees, officers, directors, owners,
subsidiaries, affiliates, divisions, predecessors, successors, shareholders,
partners, representatives, control persons, joint venturers, partnerships,
insurers, and attorneys, as well as the successors and assigns of same,
regarding the claims arising out of or in any way relating to the Consulting
Agreement or the Cropper Allegations and/or any and all transactions related
thereto.
8. The parties shall hold confidential and not disclose to any person
or entity the facts underlying this Settlement Agreement, its terms, any
information about the facts or circumstances regarding the allegations of this
Settlement Agreement, except as necessary to report information for tax purposes
to the federal
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government, at which point the parties may disclose to their counsel and
accountants the fact and terms of this Settlement Agreement only, or except as
may be required by law, including but not limited to all applicable rules,
regulations and interpretations of the Securities and Exchange Commission. If
any of the parties receive any form of question or inquiry about (i) the
disputes between the parties, (ii) the allegations referred to in this
Settlement Agreement, (iii) the settlement contemplated in this Settlement
Agreement, (iv) any dispute or disagreement between the parties over any
matters, or (v) the reputation, business performance, nature, prospects, or any
other material aspect of High Speed or Summus Ltd., the party to whom such
question or inquiry is posed shall make the following statement (using these
words or words to the same effect) as the sole response to such question or
inquiry: "I am not at liberty to discuss it." Cropper and RPC agree not to make
any oral or written public statement or take any other action which disparages
or criticizes High Speed or its past and present agents, employees, officers,
directors, owners, subsidiaries, affiliates, divisions, predecessors,
successors, shareholders, partners, representatives, control persons, joint
venturers, partnerships, insurers, or the successors and assigns of same.
Cropper agrees that any violation of these confidentiality and non-disparagement
provisions will be grounds for breach of this Settlement Agreement, giving High
Speed the right to withhold any payments due hereunder.
9. All parties to this Settlement Agreement expressly waive, as the
each other, any and all claims for costs and attorneys' fees, and each party
agrees to pay its own costs and fees. This Settlement Agreement shall not be
used or construed by any person or entity as an admission of liability or
finding or admission that the rights of any one of the parties to this
Settlement Agreement were in any way violated by any other party to this
Settlement Agreement, and this Settlement Agreement may not be offered or
received in evidence in any action or proceeding as an admission or confession
of liability or wrongdoing on the part of the parties to this Settlement
Agreement.
10. This Settlement Agreement shall be binding upon and inure to the
benefit of the parties to this Settlement Agreement, their predecessors,
successors, assigns, purchasers, heirs, executors, representatives and
administrators.
11. The parties to this Settlement Agreement acknowledge that this
Settlement Agreement contains and comprises the entire agreement and
understanding of the parties with respect to the subject matter, and there are
no agreements or understandings other than those contained herein. Further, this
Settlement Agreement is intended to be a binding contract between them and shall
not be modified, except by writing signed by all of the parties to this
Settlement Agreement.
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12. This Settlement Agreement shall be governed by and construed in
accordance with the laws of the State of North Carolina, without regard to its
choice of law provisions.
13. Cropper and RPC warrant and represent that they have not assigned,
transferred, or conveyed at any time to any person or entity any alleged or
unalleged right, claim, or cause of action against High Speed, or its past and
present agents, employees, officers, directors, owners, subsidiaries,
affiliates, divisions, predecessors, successors, shareholders, partners,
representatives, control persons, joint venturers, partnerships, insurers, or
attorneys, or the successors and assigns of same.
14. Cropper represents that he has not relied on any inducement,
promise, warranty or representation in executing this Settlement Agreement other
than as specifically set forth herein. Cropper also represents that he is
signing this Settlement Agreement only after reading it carefully, and only
after seeking the advice of counsel with whose competence and independence he is
fully and completely satisfied. Cropper further represents that he has signed
this Settlement Agreement knowingly and voluntarily and understands its
contents.
15. Cropper expressly represents and warrants to High Speed (i) that he
currently holds the title and position in RPC set forth below, (ii) as such
officer has authority to enter into this Settlement Agreement on RPC's behalf
and to bind RPC to its terms, and (iii) RPC is an entity in good standing with
the full right, power and legal capacity to execute, deliver and perform its
obligations under this Settlement Agreement. Further, Cropper hereby agrees to
indemnify and hold harmless High Speed, its affiliates, officers, directors and
agents of High Speed (collectively, the "High Speed Indemnitees") from and
against, and will pay to High Speed Indemnitees the amount of, any loss,
liability, claim, damages, cost or expense arising out of any claim bought by
any other member, employee, principal, agent, officer, director, consultant, or
the like, of RPC relating to any aspect of RPC's engagement with High Speed.
16. Any lawsuit arising out of or relating to this terms of this
Settlement Agreement may be brought only in the Wake County, North Carolina
General Court of Justice.
17. In the event that any provision or obligation under this Settlement
Agreement is deemed invalid, unenforceable or illegal, the validity,
enforceability and legality of the remaining provisions shall not be affected or
impaired.
18. This Settlement Agreement may be executed in one or more
counterparts, and the signature of any party hereto to any counterpart may be
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appended to any other counterpart, all of which counterparts when taken together
shall equal one Settlement Agreement.
19. Cropper and RPC agree that, except as expressly permitted herein,
and except to the extent required by order of a Court of competent jurisdiction,
neither they nor any person acting for or on their behalf, including their
attorneys, shall release any publicity or make any public statement with respect
to any of their terms and conditions of this Settlement Agreement (other than,
as the context permits, to their attorneys, accountants and other professional
representatives and any other person or entities as required by law).
IN WITNESS WHEREOF, the parties hereto have executed this SETTLEMENT
AGREEMENT AND GENERAL RELEASE OF ALL CLAIMS to be effective on the date
first-above written.
HIGH SPEED NET SOLUTIONS, INC.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ Ban
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Dated: 4 June 01 Title: Chief Operations Officer
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Dated: 6/4/2001
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RPC INTERNATIONAL L.C.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
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Dated: 4 June 01
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