UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
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CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 9, 2014
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APT MOTOVOX GROUP, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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333-165406
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27-1668227
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(State or Other Jurisdiction
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(Commission File Number)
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(I.R.S. Employer Identification No.)
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of Incorporation)
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8844 Hillcrest Road, Kansas City, Missouri 64138
(Address of Principal Executive Office) (Zip Code)
816-767-8783
(Registrant’s telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement
APT MotoVox Group, Inc. (“APT” or the “Company”) filed suit against Monster Moto, LLC and former associates of the Company in July 2014, alleging misappropriation of trade secrets and a litany of various tort claims. The suit and the motion for preliminary injunction were filed in the United States District Court for the Western District of Missouri as APT Group, Inc. d/b/a/ MotoVox vs. Monster Moto, LLC, Olen Rice, Robert A. Rice Sr., Jon Umsted, Kenneth Francis and Beck Salander.
On November 9, 2014, the Company executed a contingent settlement agreement and mutual release with Monster Moto, LLC. The agreement was contingent on the execution of a separate settlement agreement with the individually named defendants.
On November 14, 2014, the Company executed a settlement agreement and mutual release with the individually named defendants.
On November 18, 2014, the Company executed an Addendum to Settlement Agreement and Mutual Release.
The significant terms of the Settlement Agreements are highlighted below:
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Patent claim litigation will cease in Texas and Missouri and all parties will dismiss their lawsuits with prejudice
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Lawsuits and any commission related claims filed against the Company in Wisconsin will be dismissed with prejudice
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All corporate and individual parties are mutually released from further liability
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Monster Moto, LLC will pay $20,000 to the Company
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Monster Moto, LLC will refrain from selling competing adult mini-bikes through January 1, 2016
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The Company will not pursue intellectual property claims against Monster Moto, LLC relating to four patents and adult mini-bikes
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Monster Moto, LLC will change packaging and seat color on its mini-bike for one year on production runs after April 1, 2015
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The Company will indemnify four of the individual defendants against potential third party claims
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The four individual defendants forfeit any equity participation rights and return all of their common and preferred stock to the Company and agree not to purchase or own shares in the future.
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The foregoing description of the Settlement Agreements and Addendum is not intended to be complete and is qualified in its entirety by the complete text of the Settlement Agreements and Mutual Releases and are incorporated by reference and attached herein as Exhibits 4.1, 4.2 and 4.3 to this Current Report on Form 8-K.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
Exhibit No. Description
4.1 Settlement Agreement and Mutual Release, dated November 9, 2014
4.2 Settlement Agreement and Mutual Release, dated November 14, 2014
4.3 Rice Addendum to Settlement Agreement and Mutual Release, dated November 18, 2014
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, hereunto duly authorized.
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APT MOTOVOX GROUP, INC.
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By:
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/s/ TROY A. COVEY
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Troy A. Covey
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President, Director and Principal Executive Officer |
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Exhibit 4.1
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release (the “Agreement”) is made, entered into and executed as of the Effective Date by and between APT Group, Inc. d/b/a MotoVox, and APT IP Holdings, LLC, each a Missouri Corporation with its principal place of business in Kansas City, Missouri (collectively, “MotoVox”), on one hand, and Monster Moto, LLC, a Texas limited liability company with its principal place of business in Garland, Texas (“Monster Moto”), on the other. MotoVox and Monster Moto are sometimes referred to herein individually as a “Party” or collectively as the “Parties.”
WHEREAS, (a) on or about June 17, 2014, MotoVox filed suit against Monster Moto and several individual Defendants in the United States District Court for the Western District of Missouri, APT Group, Inc., et al v. Monster Moto, LLC, et al, Case No. 4:14-cv-546-ODS, alleging claims for, among other things, design patent infringement, misappropriation of trade secrets, tortious interference with contract, trademark infringement and trade dress infringement; (b) on or about July 21, 2014, Monster Moto filed suit against MotoVox in the United States District Court for the Northern District of Texas, Monster Moto, LLC v. APT Group, Inc., et al, Civil Action No. 3:14-CV-2625-N, alleging claims for, among other things, declaratory judgment of patent invalidity and non-infringement, common law business disparagement, tortious interference with contract, and unfair competition, which action was ultimately transferred to the Western District of Missouri on October 21, 2014; and (c) each Party denied the claims of the other Party and filed various counterclaims and/or defenses to all of the claims of the other Party (collectively, the “Litigation”); and
WHEREAS, in order to avoid the expense and uncertainty of further disputes or litigation, and without any admission of liability or the correctness of MotoVox’s or Monster Moto’s assertions, MotoVox and Monster Moto desire to settle the Litigation between them and resolve all differences and controversies among themselves, subject to the terms of this Agreement, which is itself contingent on Northern Group, Inc. (“Northern Group”), Olen Rice, an individual, Robert A. Rice, Sr., an individual, Jon Umsted, an individual, Marketing Operations Advisors, Inc. (“Marketing Operations”), Kenneth Francis, an individual, Scott Holmes, an individual, and Kart Mart1 agreeing to settle their current disputes with MotoVox.
NOW, THEREFORE, in consideration of the above promises and the following promises, releases, and such other good and valuable consideration, the sufficiency and receipt of which the Parties hereby acknowledge, Monster Moto and MotoVox agree as follows:
1. COVENANTS OF MUTUAL RELEASE.
1.1. Release of Monster Moto. MotoVox, on behalf of itself and its agents, attorneys, officers, directors, shareholders, employees, representatives, parents, subsidiaries, affiliates, owners, successors and assigns, hereby releases, remises and forever discharges Monster Moto and its agents, attorneys, officers, directors, shareholders, employees, representatives, parents, subsidiaries, affiliates, owners, successors and assigns from any and all claims, demands, or causes of action that arise out of or relate to the Litigation, and any and all obligations, actions, causes of action, suits, debts, contracts, controversies, agreements, promises, damages, judgments, awards, executions, claims and demands whatsoever in law or in equity, and any and all claims for damages (and attorneys’ fees and costs) based upon the violation of a national, state or other statute, regulation or law or arising out of any conduct, contract, action, event or circumstance, whether known or unknown, which occurred at any time up to and including the date of the execution of this Agreement, except obligations created by this Agreement.
1 Northern Group, Inc., Olen Rice, Robert A. Rice, Sr., Jon Umsted, Marketing Operations Advisors, Inc., Kenneth Francis, Scott Holmes, and Kart Mart shall be referred to as the “Individual Parties & Entities.”
1.2. Release of MotoVox. Monster Moto, on behalf of itself and its agents, attorneys, officers, directors, shareholders, employees, representatives, parents, subsidiaries, affiliates, owners, successors and assigns, hereby releases, remises and forever discharges MotoVox and its agents, attorneys, officers, directors, shareholders, employees, representatives, parents, subsidiaries, affiliates, owners, successors and assigns from any and all claims, demands, or causes of action that arise out of or relate to the Litigation, and any and all obligations, actions, causes of action, suits, debts, contracts, controversies, agreements, promises, damages, judgments, awards, executions, claims and demands whatsoever in law or in equity, and any and all claims for damages (and attorneys’ fees and costs) based upon the violation of a national, state or other statute, regulation or law or arising out of any conduct, contract, action, event or circumstance, whether known or unknown, which occurred at any time up to and including the date of the execution of this Agreement, except obligations created by this Agreement.
2. COVENANTS AND WARRANTIES.
2.1. Payment. Monster Moto will pay the total sum of Twenty Thousand Dollars ($20,000) (the “Settlement Payment”) to MotoVox, the first installment of Ten Thousand Dollars ($10,000) to be received by MotoVox within fourteen (14) days of the Effective Date of this Agreement, and the second installment of Ten Thousand Dollars ($10,000) to be received by MotoVox within forty-five (45) days of the Effective Date of this Agreement.
2.2. Delayed Entry Related to Specific Products. Monster Moto will refrain from making any sales of minibikes designed for adults that would compete with Motovox’s adult mini bikes (models MBX20 and MBX25) until January 1, 2016.
2.3. Covenant Not to Sue. MotoVox hereby covenants not to sue Monster Moto on any intellectual property rights or claims (including but not limited to patents, trade secrets, trade dress, trademarks, and copyrights) relating to the designs disclosed or claimed in the following patents: D705,128; D682,739; D705,127; D689,798; D653,590 and to the Motovox adult mini bikes (MBX20 and MBX25). This provision shall not be construed to apply to intellectual property rights that Motovox holds in its Motoped product lineor to intellectual property rights that Motovox acquires or develops in the future.
2.4. No Admission or Liability or Wrongdoing. Neither Party makes any admission of liability or wrongdoing.
2.5. Press Release. Within fourteen (14) days of the Effective Date, the Parties agree to jointly issue a press release stating that the Parties have settled their claims and counterclaims against one another, neither Party has admitted liability or wrongdoing, and the settlement will allow each Party to focus on pursuing their respective businesses.
2.6. Redesign. For production runs beginning after April 1, 2015, Monster Moto will (1) change the current packaging of the MM-B80 minibike; and (2) will change from red seats on the MM-B80 minibike for a period of one (1) year.
2.7. Representations. The Parties each represent and warrant that the execution, delivery, and performance by it of this Agreement has been duly authorized by all necessary corporate action and does not and will not (i) require additional consent or approval of its directors or shareholders, (ii) violate any provision of any law, regulation, order, writ, judgment, injunction, decree, determination, or award presently in effect having applicability to it or any provision of its charter or bylaws, or (iii) result in a breach of or constitute a default under any material agreement, mortgage, lease, license, permit, or other instrument or obligation to which it is a party, or by which it or its properties may be bound or affected.
2.8. Dismissal of Litigation. Within five (5) days of MotoVox’s receipt of the first installment of the Settlement Payment specified in Section 2.1 above, the parties shall jointly file a Stipulation of Dismissal with Prejudice of any and all claims and counterclaims in the Litigation.
2.9. Further Assurances. The Parties shall, with all reasonable diligence, take all action, do all things, and execute and deliver all further documents, agreements and assurances as may be required in order to carry out the terms and conditions of this Agreement in accordance with its true intent.
2.10. Contingent Agreement. This Agreement is contingent on the Individual Parties & Entities reaching a settlement with MotoVox of all claims between them by November 17, 2014. If the Individual Parties & Entities do not reach a settlement with MotoVox of all claims between them by November 17, 2014, then (a) this Agreement shall be null and void, and of no effect whatsoever, and (b) the deposition of Troy Covey shall take place at 9:00 a.m on November 17, 2014 at the Kansas City office of Polsinelli PC. In the event the Individual Parties & Entities reach settlement with MotoVox of all claims between them by November 17, 2014, the terms of such settlement shall be incorporated herein and made a part of this Agreement by way of an addendum.
3. EFFECTIVE DATE. This Agreement is effective as of the date it is signed by all Parties hereto.
4. ATTORNEYS’ FEES, COSTS AND EXPENSES. Each Party shall bear its own attorneys’ fees, costs and expenses.
5. INTEGRATION. This instrument contains the entire and only agreement between the Parties and supersedes all preexisting agreements and understandings between them respecting its subject matter. Any representation, promise, or condition in connection with such subject matter that is not incorporated in this Agreement shall not be binding on any other Party. No modification, renewal, extension, or waiver of this Agreement or any of its provisions shall be binding on the Party against whom enforcement of such modification, renewal, extension, or waiver is sought, unless made in writing and signed by such Party. The Parties acknowledge that each of them has read this Agreement, and that each of them has had the opportunity to discuss it with legal counsel of their choosing and has full knowledge of its significance, each understands and agrees that this Agreement is satisfactory and reflects the desire and intent of the Parties.
6. INTERPRETATION. The language of all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning, and not against any Party. The headings are for convenience of reference only and shall not affect the meaning or interpretation of the terms herein.
7. ADEQUATE CONSIDERATION. Each of the Parties acknowledges and confirms that the covenants and agreements of the Parties expressly stated herein constitute full and adequate consideration for its execution by each Party and that no other promises, covenants or agreements of any kind or nature whatsoever, except for those expressly stated herein, have been made by any Party to any other Party to cause any Party to execute this Agreement. Each Party acknowledges and confirms that the covenants, warranties, releases and other promises stated herein constitute full and adequate consideration for the execution by each Party of this Agreement.
8. GOVERNING LAW; VENUE. The laws of the State of Missouri shall govern the enforcement of this Settlement Agreement both as to interpretation and performance without regard to any conflicts of laws analysis.
9. SUCCESSORS AND ASSIGNS. This Agreement, and all rights and obligations hereunder, shall inure to the benefit of the Parties’ successors and assigns.
10. SEVERABILITY. If any provision of this Agreement is, becomes or is held to be invalid, illegal or unenforceable in any jurisdiction, such provision shall be deemed amended to conform to applicable law so as to be valid, legal and enforceable in that jurisdiction. The validity, legality or enforceability of such provision shall not in any way be affected or impaired thereby in any other jurisdiction. If such provision cannot be amended without materially altering the intentions of the Parties, it shall be stricken and the remainder of this Agreement shall remain in full force and effect.
11. COUNTERPART ORIGINALS. This Agreement may be executed in counterparts and the Parties agree that any facsimile or other copy of this Agreement evidencing the execution by the Parties shall be deemed an original.
IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound and to so bind their respective representatives, successors and assigns, set their hands on the date written immediately below.
APT GROUP, INC. D/B/A MOTOVOX
By:
Its ________________
Dated:________________
APT IP HOLDINGS, INC.
By:
Its ________________
Dated:________________
MONSTER MOTO, LLC
By:
Its ________________
Dated:________________
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Exhibit 4.2
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release (the “Agreement”) is made, entered into and executed as of the Effective Date by and between APT Group, Inc. d/b/a MotoVox, a Missouri corporation with its principal place of business in Kansas City, Missouri, APT IP Holdings, LLC, APT Powersport and Utility Products, LLC and American Performance Technologies, LLC (collectively, “MotoVox”), on one hand, and Northern Group, Inc. (“Northern Group”), Olen Rice, an individual, Robert A. Rice, Sr. (“Tony Rice”), an individual, Jon Umsted, an individual, Marketing Operations Advisors, Inc. (“Marketing Operations”), Kenneth Francis, an individual, Scott Holmes, an individual, and Kart Mart, on the other (Northern Group, Inc., Olen Rice, Robert A. Rice, Sr., Jon Umsted, Marketing Operations Advisors, Inc., Kenneth Francis, Scott Holmes, and Kart Mart shall be referred to as the “Individual Parties & Entities.”). MotoVox and Northern Group, Olen Rice, Tony Rice, Jon Umsted, Marketing Operations, Kenneth Francis, Scott Holmes, and Kart Mart are sometimes referred to herein individually as a “Party” or collectively as the “Parties.”
WHEREAS, on or about June 26, 2013, Olen Rice filed suit against APT Powersport and Utility Products, LLC and American Performance Technologies, LLC in the Circuit Court of Brown County, Wisconsin, in a case styled Olen Rice v. APT Powersport and Utility Products, LLC et al., Case No. 13CV1031, alleging claims for breach of contract, and on or about June 26, 2013, Northern Group filed suit against APT Powersport and Utility Products, LLC in the Circuit Court of Brown County, Wisconsin, in a case styled Northern Group, Inc. v. APT Powersport and Utility Products, LLC, Case No. 13CV1032, alleging claims for breach of contract (“Wisconsin Cases”);
WHEREAS, on or about November 18, 2013 MotoVox filed suit against several defendants in the Circuit Court of Jackson County, Missouri, in a case styled APT Powersport and Utility Products, LLC v. Olen Rice, et al., Case No. 1316-CV28798, alleging claims for, among other things, breach of contract, breach of fiduciary duty, and tortious interference with contract (“Jackson County Case”);
WHEREAS, on or about June 17, 2014, MotoVox filed suit against Monster Moto and several individual Defendants in the United States District Court for the Western District of Missouri, in a case styled APT Group, Inc., et al v. Monster Moto, LLC, et al, Case No. 4:14-cv-546-ODS, alleging claims for, among other things, design patent infringement, misappropriation of trade secrets, tortious interference with contract, trademark infringement and trade dress infringement (“Missouri Federal Case”);
WHEREAS, each Party — with the exception of the Wisconsin Cases, where Olen Rice obtained default judgments as to liability and the parties remain in litigation over the amount of damages therein — denied the claims of the other Party and filed various counterclaims and/or defenses to all of the claims of the other Party (hereafter the Wisconsin Cases, Jackson County Case, and Missouri Federal Case will be collectively referred to as the “Litigation”); and
WHEREAS, in order to avoid the expense and uncertainty of further disputes or litigation, and without any admission of liability or the correctness of any Party’s assertions, the Parties desire to settle all Litigation between them and resolve all differences and controversies among themselves, subject to the terms of this Agreement.
NOW, THEREFORE, in consideration of the above promises and the following promises, releases, and such other good and valuable consideration, the sufficiency and receipt of which the Parties hereby acknowledge, the Parties agree as follows:
1. COVENANTS OF MUTUAL RELEASE.
1.1 Release of the Individual Parties & Entities. MotoVox, on behalf of itself and its agents, attorneys, officers, directors, shareholders, employees, representatives, Predecessor Entities, parents, subsidiaries, affiliates, owners, successors and assigns, hereby releases, remises and forever discharges the Individual Parties & Entities, and their agents, attorneys, officers, directors, members, managers, shareholders, employees, representatives, parents, subsidiaries, affiliates, owners, heirs, successors and assigns, from any and all claims, demands, or causes of action that arise out of or relate to the Litigation, and any and all obligations, actions, causes of action, suits, debts, contracts, controversies, agreements, promises, damages, judgments, awards, executions, claims and demands whatsoever in law or in equity, and any and all claims for damages (and attorneys’ fees and costs) based upon the violation of a federal, state or other statute, regulation or law (including common law) or arising out of any conduct, contract, action, event or circumstance, whether known or unknown, which occurred at any time up to and including the date of the execution of this Agreement, except obligations created by this Agreement.
1.2 Release of MotoVox. The Individual Parties & Entities, on behalf of themselves and their agents, attorneys, officers, directors, shareholders, employees, representatives, parents, subsidiaries, affiliates, owners, successors and assigns, hereby release, remise and forever discharge MotoVox and its agents, attorneys, officers, directors, shareholders, employees, representatives, parents, subsidiaries, affiliates, owners, successors and assigns from any and all claims, demands, or causes of action that arise out of or relate to the Litigation, and any and all obligations, actions, causes of action, suits, debts, contracts, controversies, agreements, promises, damages, judgments, awards, executions, claims and demands whatsoever in law or in equity, and any and all claims for damages (and attorneys’ fees and costs) based upon the violation of a federal, state or other statute, regulation or law (including common law) or arising out of any conduct, contract, action, event or circumstance, whether known or unknown, which occurred at any time up to and including the date of the execution of this Agreement, except obligations created by this Agreement.
1.3 Indemnification of Olen Rice, Tony Rice, Kenneth Francis, and Jon Umsted. Motovox shall indemnify, defend and hold harmless Olen Rice, Tony Rice, Kenneth Francis and Jon Umsted from any and all claims, demands or liability from any third party arising out of or relating to Olen Rice’s or Tony Rice’s or Kenneth Francis’ or Jon Umsted’s association with the Predecessor Entities, including, but not limited to, any claim, demand, or liability asserted by a former member or manager of the Predecessor Entities or any current or former shareholder to Motovox and, further, Motovox affirms that this obligation for indemnification is covered by one or more policies of insurance as provided in the Service Agreements. The individuals listed in this section hereby certify that as of the Effective Date, they are not aware of any pending or threatened actions against any of them that would be subject to this indemnification obligation.
2. COVENANTS AND WARRANTIES.
2.1 Covenant Not to Sue. MotoVox hereby covenants not to sue the Individual Parties & Entities on any intellectual property rights or claims (including but not limited to patents, trade secrets, trade dress, trademarks, and copyrights) relating to the designs disclosed or claimed in the following patents: D705,128; D682,739; D705,127; D689,798; D653,590 and to the MotoVox adult mini bikes (MBX20 and MBX25), or to customers, customer information, including customer contacts, known to Olen Rice as of the Effective Date. This provision shall not be construed to apply to intellectual property rights that MotoVox holds in its Motoped product line or to intellectual property rights that MotoVox acquires or develops in the future.
2.2 No Admission or Liability or Wrongdoing. No Party makes any admission of liability or wrongdoing.
2.3 Confidentiality. The Parties shall be prohibited from disclosing the terms of settlement to the public, including but not limited to the release of the Wisconsin Cases by Olen Rice and Northern Group, unless disclosure of the settlement terms is required to comply with SEC or other regulators. This section shall not prohibit MotoVox from disclosing the terms of this Agreement to its investors, shareholders, or prospective shareholders. .
2.4 Representations. The Parties each represent and warrant that the execution, delivery, and performance by it of this Agreement has been duly authorized by all necessary corporate action, if applicable, and does not and will not (i) require additional consent or approval of its directors or shareholders, (ii) violate any provision of any law, regulation, order, writ, judgment, injunction, decree, determination, or award presently in effect having applicability to it or any provision of its charter or bylaws, or (iii) result in a breach of or constitute a default under any material agreement, mortgage, lease, license, permit, or other instrument or obligation to which it is a party, or by which it or its properties may be bound or affected.
2.5 Dismissal of Litigation. Within nineteen (19) days of the Effective Date of this Agreement, the Parties shall jointly file a Stipulation of Dismissal with Prejudice of any and all claims and counterclaims in the Litigation, including any language necessary for Olen Rice and Northern Group to vacate and/or waive the default judgments in the Wisconsin Cases.
2.6 Stipulation Regarding Motovox Stock. Motovox and the Individual Parties & Entities stipulate that Motovox did not issue any units or stock to the Individual Parties & Entities. The Individual Parties & Entities hereby stipulate that they agree to forfeit and disclaim any rights or claims to ownership of stock or units in any of the Motovox entities. Motovox certifies that it has never identified any of the Individual Parties & Entities as owners in any tax filings with the IRS and that it will not do so in the future. The Individual Parties & Entities agree that they will not purchase or own stock in Motovox at any time in the future.
2.7 Further Assurances. The Parties shall, with all reasonable diligence, take all action, do all things, and execute and deliver all further documents, agreements and assurances as may be required in order to carry out the terms and conditions of this Agreement in accordance with its true intent.
3. EFFECTIVE DATE. This Agreement is effective as of the date it is signed by all Parties hereto.
4. ATTORNEYS’ FEES, COSTS AND EXPENSES. Each Party shall bear its own attorneys’ fees, costs and expenses.
5. INTEGRATION. This instrument contains the entire and only agreement between the Parties relating to the subject matter addressed herein and supersedes all preexisting agreements and understandings between them respecting its subject matter. Any representation, promise, or condition in connection with such subject matter that is not incorporated in this Agreement shall not be binding on any other Party. No modification, renewal, extension, or waiver of this Agreement or any of its provisions shall be binding on the Party against whom enforcement of such modification, renewal, extension, or waiver is sought, unless made in writing and signed by such Party. The Parties acknowledge that each of them has read this Agreement, and that each of them has had the opportunity to discuss it with legal counsel of their choosing and has full knowledge of its significance, each understands and agrees that this Agreement is satisfactory and reflects the desire and intent of the Parties.
6. INTERPRETATION. The language of all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning, and not against any Party. The headings are for convenience of reference only and shall not affect the meaning or interpretation of the terms herein.
7. ADEQUATE CONSIDERATION. Each of the Parties acknowledges and confirms that the covenants and agreements of the Parties expressly stated herein constitute full and adequate consideration for its execution by each Party and that no other promises, covenants or agreements of any kind or nature whatsoever, except for those expressly stated herein, have been made by any Party to any other Party to cause any Party to execute this Agreement. Each Party acknowledges and confirms that the covenants, warranties, releases and other promises stated herein constitute full and adequate consideration for the execution by each Party of this Agreement.
8. GOVERNING LAW; VENUE. The laws of the State of Missouri shall govern the enforcement of this Settlement Agreement both as to interpretation and performance without regard to any conflicts of laws analysis.
9. SUCCESSORS AND ASSIGNS. This Agreement, and all rights and obligations hereunder, shall inure to the benefit of the Parties’ successors and assigns.
10. SEVERABILITY. If any provision of this Agreement is, becomes or is held to be invalid, illegal or unenforceable in any jurisdiction, such provision shall be deemed amended to conform to applicable law so as to be valid, legal and enforceable in that jurisdiction. The validity, legality or enforceability of such provision shall not in any way be affected or impaired thereby in any other jurisdiction. If such provision cannot be amended without materially altering the intentions of the Parties, it shall be stricken and the remainder of this Agreement shall remain in full force and effect.
11. COUNTERPART ORIGINALS. This Agreement may be executed in counterparts and the Parties agree that any facsimile or other copy of this Agreement evidencing the execution by the Parties shall be deemed an original.
IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound and to so bind their respective representatives, successors and assigns, set their hands on the date written immediately below.
APT GROUP, INC. D/B/A MOTOVOX
By: Troy A. Covey
Its President
Dated: November 14, 2014
APT IP HOLDINGS, INC.
By: Troy A. Covey
Its Managing Member
Dated: November 14, 2014
APT POWERSPORT AND UTILITY PRODUCTS, LLC
By: Troy A. Covey
Its Managing Member
Dated: November 14, 2014
AMERICAN PERFORMANCE TECHNOLOGIES, LLC
By: Troy A. Covey
Its Managing Member
Dated: November 14, 2014
NORTHERN GROUP, INC.
By:
Its ________________
Dated:________________
OLEN RICE
By:
Dated:________________
ROBERT A. RICE, SR.
By:
Dated:________________
KENNETH FRANCIS
By:
Dated:_______________
JON UMSTED
By:
Dated:________________
MARKETING OPERATIONS, ADVISORS, INC.
By:
Its ________________
Dated:________________
SCOTT HOLMES
By:
Dated:________________
KART MART
By:
Its ________________
Dated:________________
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Exhibit 4.3
RICE ADDENDUM TO SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Addendum to Settlement Agreement and Mutual Release (the “Addendum”) is made, entered into and executed as of the Effective Date by and between APT Group, Inc. d/b/a MotoVox, a Missouri corporation with its principal place of business in Kansas City, Missouri, APT IP Holdings, LLC, APT Powersport and Utility Products, LLC and American Performance Technologies, LLC (collectively, “MotoVox”), on one hand, and Northern Group, Inc. (“Northern Group”), Olen Rice, an individual, (“Rice”)
Whereas, Section 2.3 of the Settlement Agreement and Mutual Release entered into by the undersigned parties provides:
“2.3 Confidentiality. The Parties shall be prohibited from disclosing the terms of settlement to the public, including but not limited to the release of the Wisconsin Cases by Olen Rice and Northern Group, unless disclosure of the settlement terms is required to comply with SEC or other regulators. This section shall not prohibit MotoVox from disclosing the terms of this Agreement to its investors, shareholders, or prospective shareholders.”.
Whereas, the Motovox, Northern Group and Rice have agreed to amend the Settlement Agreement and Mutual Release as provided below.
Now, for good and valuable consideration, the receipt and sufficiency being hereby acknowledged, the undersigned agreed to amend the Settlement Agreement and Mutual Release as follows:
With respect to Section 2.3, as it pertains to any terms applicable to Northern Group and Rice shall be amended to remove “prospective shareholders” from the last sentence. In addition, Section 2.3 shall not prohibit Northern Group and Rice from disclosing to third parties that his/its decision to release Motovox from the Wisconsin Cases was primarily based upon Northern Group and Rice’s belief that Motovox was uncollectable or that the cost of collection was outweighed by the likelihood of success in collecting from Motovox.
In all other respects, the Settlement Agreement and Mutual Release remains unchanged.
IN WITNESS WHEREOF, the undersigned Parties hereto, intending to be legally bound and to so bind their respective representatives, successors and assigns, set their hands on the date written immediately below.
APT GROUP, INC. D/B/A MOTOVOX
By: Troy A. Covey
Its President
Dated: November 18, 2014
APT IP HOLDINGS, LLC
By: Troy A. Covey
Its Managing Member
Dated: November 18, 2014
APT POWERSPORT AND UTILITY PRODUCTS, LLC
By: Troy A. Covey
Its Managing Member
Dated: November 18, 2014
AMERICAN PERFORMANCE TECHNOLOGIES, LLC
By: Troy A. Covey
Its Managing Member
Dated: November 18, 2014
NORTHERN GROUP, INC.
By:
Its ________________
Dated:________________
OLEN RICE
By:
Dated:________________
3
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