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AGREEMENT OF SETTLEMENT AND GENERAL RELEASE
This AGREEMENT OF SETTLEMENT AND GENERAL RELEASE (the "Agreement") is
made and entered into as of October 20, 1998 (the "Effective Date"), by and
between plaintiff and cross-defendant Advanced Materials Group, Inc. ("AMG")
and cross-defendant Condor Utility Products, Inc. ("Condor"), on the one
hand, and defendant and cross-complainant Gary Valiska and his wife, Doris
Valiska, (collectively, the "Valiskas") on the other hand. AMG, Condor and
the Valiskas are sometimes collectively referred to herein as the "Parties."
RECITALS
This Agreement is made with reference to the following facts and
circumstances:
A. On January 7, 1998, AMG filed its Complaint For Breach Of Promissory
Note And Money Lent against Gary Valiska in Los Angeles County Superior
Court, Case No. BC183893. On March 9, 1998, Gary Valiska filed his
Cross-Complaint For Damages And Declaratory Relief. The complaint and
cross-complaint are collectively referred to herein as the "Action."
B. The Parties wish to avoid the expense of litigation and settle all
of their current and ongoing differences concerning the claims the Parties
alleged, or could have alleged, in the Action, and any and all other claims
which may exist, on the following terms.
AGREEMENT
In consideration of the foregoing recitals, the mutual undertakings
contained in this Agreement, and other good, valuable and sufficient
consideration, the Parties agree as follows:
1. DISMISSAL OF THE ACTION. Upon receipt of a fully executed copy of
this Agreement, the Parties shall cause to be filed a fully executed Request
For Dismissal With Prejudice Of Entire Action, dismissing all parties
thereto, in the form attached hereto as Exhibit A. In addition, Gary Valiska
shall cause those claims which he submitted to the Securities and Exchange
Commission, Division of Enforcement (the "SEC") to be withdrawn by sending to
the SEC a letter in the form attached hereto as Exhibit B and performing any
and all other reasonable efforts to ensure that said claims are withdrawn.
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2. MUTUAL GENERAL RELEASE.
a. AMG and Condor, jointly and severally, do hereby fully and
forever release the Valiskas, and their partners, employees, attorneys,
agents, successors, representatives, shareholders, parent companies,
subsidiaries, affiliated companies and assigns, jointly and severally
(collectively, the "Valiskas, Et Al."), and do hereby fully and forever
discharge and agree to hold the Valiskas, Et Al. harmless from and against
any and all claims and causes of action, in law or in equity, disputes,
suits, debts, liens, rights, contracts, agreements, acts, promises,
liabilities, obligations, demands, damages, losses, costs, fees (including,
without limitation, those of attorneys) and expenses, of whatsoever kind or
nature, whether known or unknown, suspected or unsuspected, which exist or
may have existed between AMG and Condor or any of them, on the one hand, and
the Valiskas, Et Al. or any of them, on the other hand. This release of
claims includes, without limitation, AMG and Condor's claims for indemnity
for losses incurred to date in connection with the Auten/Aglo Plastics
Litigation(1), breach of the Stock Purchase Agreement between, among others,
AMG and the Valiskas dated October 6, 1993, breach of the Employment
Agreement between Gary Valiska and AMG dated October 6, 1993, breach of the
Employment Agreement between Gary Valiska, AMG and Condor dated February 16,
1995 and breach of the Promissory Note between Gary Valiska and AMG dated
April 5, 1996, but excludes claims, if any, for breach of this Agreement.
b. The Valiskas, jointly and severally, do hereby fully and forever
release AMG and Condor, and their officers, directors, partners, employees,
attorneys, agents, successors, representatives, shareholders, parent
companies, subsidiaries, affiliated companies and assigns, jointly and
severally (collectively, "AMG/Condor, Et Al."), and do hereby fully and
forever discharge and agree to hold AMG/Condor, Et Al. harmless from and
against any and all claims and causes of action, in law or in equity,
disputes, suits, debts, liens, rights, contracts, agreements, acts, promises,
liabilities, obligations, demands, damages, losses, costs, fees (including,
without limitation, those of attorneys) and expenses, of whatsoever kind or
nature, whether known or unknown, suspected or unsuspected, which exist or
may have existed
----------
(1) The Auten/Aglo Plastics Litigation refers to VERN AUTEN, ET AL. V.
CONDOR UTILITY PRODUCTS, INC., ET AL., San Joaquin County Superior Court Case
No. 241028; VERN AUTEN, ET AL. V. CONDOR UTILITY PRODUCTS, INC., ET AL., San
Joaquin County Superior Court Case No. 248951; and CONDOR UTILITY PRODUCTS,
INC., ET AL. V. VERN AUTEN, ET AL., United
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between the Valiskas or any of them, on the one hand, and AMG/Condor, Et Al.
or any of them, on the other hand. This release of claims includes, without
limitation, the Valiskas' claims for breach of the Stock Purchase Agreement
between, among others, AMG and the Valiskas dated October 6, 1993 and breach
of the Employment Agreement between Gary Valiska, AMG and Condor dated
February 16, 1995, as well as those claims made to the Securities and
Exchange Commission, Division of Enforcement, but excludes claims, if any,
for breach of this Agreement.
3. WAIVER OF CALIFORNIA CIVIL CODE SECTION 1542. The Parties understand
and agree that the mutual releases set forth above extend to all claims of
every nature and kind, whether known or unknown, suspected or unsuspected,
except for actions necessary to enforce the terms or intent of this
Agreement. WITH RESPECT TO SUCH MUTUAL RELEASES, THE PARTIES EXPRESSLY WAIVE
AND RELINQUISH ANY AND ALL RIGHTS UNDER SECTION 1542 OF THE CALIFORNIA CIVIL
CODE, WHICH PROVIDES AS FOLLOWS:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH A 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."
4. NO ADMISSION OF LIABILITY. The Parties explicitly acknowledge that
this Agreement represents a settlement of disputed claims, and that by
entering into this Agreement no party admits or acknowledges the existence of
any liability or wrongdoing. Accordingly, neither this Agreement nor any of
its terms shall be offered or received as evidence in any proceeding in any
forum as an admission of liability or wrongdoing on the part of any party
hereto or its agents.
5. THE AUTEN/AGLO PLASTICS LITIGATION. The Parties agree as of the
Effective Date that each of the Parties shall be responsible for their own
ongoing costs and expenses, if any, which they may incur in connection with
the Auten/Aglo Plastics Litigation and for any new and/or resumed state
claims which may arise.
-------------------------------------------------------------------------------
States District Court, Eastern District of California Case No. CIV-S-94-0863
GEB/PAN.
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6. THE VALISKAS' AMG COMMON STOCK. The Parties agree that within a
reasonable time after the Effective Date, AMG and Condor shall exercise their
very best efforts to cause American Stock Transfer Co. to register the
Valiskas' common stock in AMG (approximately 12,158 shares).
7. REPRESENTATION OF NO ASSIGNMENT. The Parties represent and warrant
that no portion of the Action or any claim, right, demand, cause of action or
claim for relief released by this Agreement has been assigned or transferred,
voluntarily, by operation of law, or otherwise, to any other person or
entity. In the event that any claim, demand or suit should be made or
instituted against any person or entity released hereby because of any
purported assignment, subrogation, or transfer, the Parties agree to
indemnify and hold the released person or entity harmless against such claim,
demand or suit and shall pay and satisfy such claim, demand or suit, and
necessary expenses, including but not limited to attorneys' fees and costs,
incurred by reason thereof.
8. NEUTRAL INTERPRETATION. The Parties agree that they have each had
equal opportunity to review and contribute to the language and format of this
Agreement. Therefore, the provisions of this Agreement shall be construed as
to their fair meaning, and not for or against any party on the basis that
such party was the source of the language in question.
9. SEVERABILITY. In the event any provision of this Agreement shall be
held to be void, voidable or unenforceable, the remaining provisions shall
remain in full force and effect.
10. ENTIRE AGREEMENT. This Agreement contains the entire integrated
agreement between the Parties respecting the subject matter of this Agreement
and supersedes all prior understandings and agreements, whether oral or in
writing, between the Parties respecting the subject matter of this Agreement.
There are no representations, agreements, arrangements or understandings,
oral or in writing, between or among the Parties relating to the subject
matter of this Agreement which are not fully expressed in this Agreement. The
terms of this Agreement are intended by the Parties as a final expression of
their agreement with respect to those terms and they may not be contradicted
by evidence of any prior agreement or of any contemporaneous agreement. The
Parties further intend that this Agreement constitute the complete and
exclusive statement of its terms and that no extrinsic evidence
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whatsoever may be introduced in any judicial proceeding involving this
Agreement.
11. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which when executed and delivered, whether by facsimile
or otherwise, shall constitute an original, and all of which when executed
shall constitute one and the same instrument.
DATED: October , 1998
--
---------------------------------------
Gary Valiska
DATED: October , 1998
--
---------------------------------------
Doris Valiska
DATED: October , 1998 Advanced Materials Group, Inc.
--
By:
-----------------------------------
Name:
---------------------------------
Its:
----------------------------------
DATED: October , 1998 Condor Utility Products, Inc.
--
By:
-----------------------------------
Name:
---------------------------------
Its:
----------------------------------
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<PAGE>
EXHIBIT A
<PAGE>
----------------------------------------------------------------------------------------------------------------------------
ATTORNEY OR PARTY WITHOUT ATTORNEY (NAME AND ADDRESS): TELEPHONE NO.: FOR COURT USE ONLY
Kurt A. Ressler (SBN 178351) (949) 660-1600
GRANT & LAUBSCHER, LLP
2030 Main Street, Suite 1600
Irvine, CA 92614
ATTORNEY FOR (NAME): Advanced Materials Group, Inc.
and Condor Utility Products, Inc.
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Insert name of court and name of judicial district and branch court, if any:
Superior Court of the State of California for the County of Los Angeles
----------------------------------------------------------------------------------------------------------------------------
PLAINTIFF/PETITIONER: Advanced Materials Group, Inc.
DEFENDANT/RESPONDENT: Gary Valiska, et al.
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REQUEST FOR DISMISSAL CASE NUMBER: BC183893
/ / PERSONAL INJURY, PROPERTY DAMAGE, OR WRONGFUL DEATH
/ / MOTOR VEHICLE / / OTHER
/ / FAMILY LAW
/ / EMINENT DOMAIN
/X/ OTHER (SPECIFY): Employment/Contract
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-- A CONFORMED COPY WILL NOT BE RETURNED BY THE CLERK UNLESS A METHOD OF RETURN IS PROVIDED WITH THE DOCUMENT. --
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1. TO THE CLERK: Please dismiss this action as follows:
a. (1) /X/ With prejudice (2) / / Without prejudice
b. (1) / / Complaint (2) / / Petition
(3) / / Cross-complaint filed by (NAME): on (DATE):
(4) / / Cross-complaint filed by (NAME): on (DATE):
(5) /X/ Entire action of all parties and all causes of action
(6) / / Other (SPECIFY):*
Date:
Kurt A. Ressler >
--------------------------------------------------------------- ---------------------------------------------------------
(TYPE OR PRINT NAME OF /X/ ATTORNEY / / PARTY WITHOUT ATTORNEY) (SIGNATURE)
*If dismissal requested is of specified parties only, of Attorney or party without attorney for: Advanced
specified causes of action only, or of specified Materials Group, Inc. and Condor Utility Products, Inc.
cross-complaints only, so state and identify the parties, /X/ Plaintiff/Petitioner / / Defendant/Respondent
causes of action, or cross-complaints to be dismissed. / / Cross-complainant
----------------------------------------------------------------------------------------------------------------------------
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2. TO THE CLERK: Consent to the above dismissal is hereby given.**
Date:
Arthur A. Small, II >
--------------------------------------------------------------- ---------------------------------------------------------
(TYPE OR PRINT NAME OF /X/ ATTORNEY / / PARTY WITHOUT ATTORNEY) (SIGNATURE)
**If a cross-complaint--or Response (Family Law) seeking Attorney or party without attorney for: Gary Valiska
affirmative relief--is on file, the attorney for the
cross-complainant (respondent) must sign this consent if / / Plaintiff/Petitioner /X/ Defendant/Respondent
required by Code of Civil Procedure section 581(i) or (j). /X/ Cross-complainant
----------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
(TO BE COMPLETED BY CLERK)
3. / / Dismissal entered as requested on (DATE):
4. / / Dismissal entered on (DATE): as to only (NAME):
5. / / Dismissal NOT ENTERED as requested for the following reasons (SPECIFY):
6. / / a. Attorney or party without attorney notified on (DATE):
b. Attorney or party without attorney not notified. Filing party failed to provide.
/ / a copy to conform / / means to return conformed copy
Date: Clerk, by , Deputy
------------------------------------
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Form Adopted by the REQUEST FOR DISMISSAL Code of Civil Procedure, Section 581 et seq.
Judicial Council of California Cal. Rules of Court, rules 383, 1233
982(a)(5) [Rev. January 1, 1997]
<PAGE>
EXHIBIT B
<PAGE>
GARY S. VALISKA
2803 Richland Court
Stockton, California 95207
Tel: 209-477-5932
Securities and Exchange Commission
Division of Enforcement
RE: ADVANCED MATERIALS GROUP, INC., A NEVADA CORPORATION, AND
CONDOR UTILITY PRODUCTS, INC., A CALIFORNIA CORPORATION
To whom it may concern:
On or about , I submitted to the Securities and Exchange
Commission, Division of Enforcement (the "SEC") a letter setting forth
claims, complaints, etc., I believed I had against Advanced Materials Group,
Inc., a Nevada corporation, ("AMG") and Condor Utility Products, Inc., a
California corporation ("Condor"). Upon further investigation and analysis on
my part, I do not wish to pursue these claims any further. Indeed, I have now
settled all of my disputes with AMG and Condor and now desire that my claims
be withdrawn. Accordingly, please withdraw any and all claims, complaints,
etc. which I have asserted against AMG and Condor. In addition, please
provide me with written confirmation that the SEC has withdrawn such claims.
Thank you in advance for your attention to this matter. Should you have
any questions or comments, please feel free to call me at 209-477-5932.
Very truly yours,
Gary S. Valiska
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