This
Mutual Release (the “Agreement”) dated as of ____ [date], is entered into by
and among ______________ [names of Parties] (collectively referred to herein as
the “Parties”).
Disputes
and differences have arisen between the parties as reflected in the claims,
counterclaims, and defenses asserted in Case No. ____ in the District Court for
____ County, ___ [state] (the “Litigation”).
The parties desire fully and finally to resolve and to settle the
Litigation and all other disputes and differences between them on the terms and
conditions set forth in this agreement.
—OR—
WHEREAS,
Disputes have arisen among the parties regarding ________
[description
of the dispute] (collectively, the “Underlying Dispute”); and
WHEREAS,
________ [other pertinent recitals].
WHEREAS,
Recognizing the uncertainty of litigation and its associated expenses, the
Parties have agreed to resolve and settle the Underlying Dispute on the terms
and conditions set forth in this Agreement.
NOW,
THEREFORE, in consideration of the foregoing recitals and of the conditions,
covenants and agreements set forth below, the amount and sufficiency of which
are hereby acknowledged, the Parties agree as follows:
1.
Mutual Releases.
(a)
Effective upon timely
payment as provided in Section 2 below, the Parties, on behalf of themselves,
and all persons or entities claiming by, through or under them, and their
respective heirs, successors and assigns, hereby fully, completely and finally
waive, release, remise, acquit, and forever discharge and covenant not to sue
the other Parties, as well as the other Parties’ respective _____ [specify, as
appropriate: officers, directors, shareholders, trustees, parent companies,
sister companies, affiliates, subsidiaries, employers, attorneys, accountants,
predecessors, successors, insurers, representatives, and agents] with respect
to any and all claims, demands, suits, manner of obligation, debt, liability,
tort, covenant, contract, or causes of
action of any kind whatsoever, at law or in equity, including without
limitation, all claims and causes of action arising out of or in any way
relating to ___ [specify, as appropriate: the Litigation or the Underlying
Dispute]. The Parties warrant and
represent that they have not assigned or otherwise transferred any claim or
cause of action released by this Agreement.
(b)
The Parties acknowledge and
agree that these releases are GENERAL RELEASES.
The Parties expressly waive and assume the risk of any and all claims
for damages which exist as of this date, but which they do not know or suspect
to exist, whether through ignorance, oversight, error, negligence, or
otherwise, and which, if known, would materially affect his or her or its
decision to enter into this Agreement.
The Parties expressly acknowledge that this waiver of claims includes
any claims for any alleged fraud, deception, concealment, misrepresentation or
any other misconduct of any kind in procuring this Agreement. The Parties specifically do not, however,
waive or release any claim that may arise for breach of this Agreement.
2.
Payment. On or before ______ [date], _____ [name of
party] will make a payment to ____ [name
of party] in the amount of $____.
3.
____________[Other
settlement terms].
4.
____________[Other
settlement terms].
5.
Dismissal of Lawsuit. No later than ___ [number] of days following
the execution of this Agreement, the Parties will file a Joint Motion to
Dismiss the Litigation with prejudice.
6.
No Admission of
Liability. Neither the payment of any
sums nor the execution of this Agreement shall be construed as an admission of
liability or fault by any Party. Any and
all liability is expressly denied by all Parties.
7.
Confidentiality. The Parties and their respective counsel represent
and agree that, except for matters of public record as of the date of this
Agreement, they will keep the terms and contents of this Agreement
confidential, and that they will not hereinafter disclose the terms of this
Agreement to other persons except as compelled by applicable law or to
individuals who have a need to know about this Agreement and its contents, such
as Parties’ legal counsel, tax advisors, or other retained professional
representatives, all of whom shall be informed and bound by this
confidentiality clause. In no event will
any party make or cause to be made any comment, written statement, or press
release to any member of the media concerning the fact of this settlement or
the substance or terms of this settlement.
8.
Authority. The Parties represent and warrant that they
possess full authority to enter into this Agreement and to lawfully and
effectively release the opposing Party as set forth herein, free of any rights
of settlement, approval, subrogation, or other condition or impediment. This undertaking includes specifically,
without limitation, the representation and warranty that no third party has now
acquired or will acquire rights to present or pursue any claims arising from or
based upon the claims that have been released herein.
9.
Entire Agreement. The Parties represent and agree that no
promise, inducement, or agreement other than as expressed herein has been made
to them and that this Agreement is fully integrated, supersedes all prior agreements
and understandings, including without limitation, _______ [specify, as
appropriate: any agreements between the
parties] and any other agreement between the Parties, and contains the entire
agreement between the Parties.
10.
Voluntary and Informed
Assent. The Parties represent and agree
that they each have read and fully understand this Agreement, that they are
fully competent to enter into and sign this Agreement, and that they are
executing this Agreement voluntarily, free of any duress or coercion.
11.
Costs, Expenses and
Attorneys’ Fees. Each of the parties
will bear its own costs, expenses, and attorneys’ fees incurred in connection
with the [specify, as appropriate: Litigation or Underlying Dispute].
12.
Governing Law and
Jurisdiction. The laws of the State of
____ [state] shall apply to and control any interpretation, construction,
performance or enforcement of this Agreement.
The Parties agree that the exclusive jurisdiction for any legal
proceeding arising out of or relating to this Agreement shall be the ______
[the court] and all Parties hereby waive any challenge to personal jurisdiction
or venue in that court.
13.
Attorneys’ Fees and Costs
for Breach. The prevailing Party in any
action to enforce or interpret this Agreement is entitled to recover from the
other Party its reasonable attorneys’ fees.
14.
Construction. This Agreement shall be construed as if the
Parties jointly prepared it, and any uncertainty or ambiguity shall not be
interpreted against any one Party.
15.
Modification. No oral agreement, statement, promise,
undertaking, understanding, arrangement, act or omission of any Party,
occurring subsequent to the date hereof may be deemed an amendment or
modification of this Agreement unless reduced to writing and signed by the
Parties hereto or their respective successors or assigns.
16.
Severability. The Parties agree that if, for any reason, a
provision of this Agreement is held unenforceable by any court of competent
jurisdiction, this Agreement shall be automatically conformed to the law, and
otherwise this Agreement shall continue in full force and effect.
17.
Number. Whenever applicable within this Agreement,
the singular shall include the plural and the plural shall include the
singular.
18.
Headings. The headings of paragraphs herein are
included solely for convenience of reference and shall not control the meaning
or interpretation of any of the provisions of this Agreement.
19.
Counterparts. This Agreement may be executed in several
counterparts and all counterparts so executed shall constitute one agreement
binding
on
all Parties hereto, notwithstanding that all the Parties are not signatories to
the original or the same counterpart.
Facsimile signatures shall be accepted the same as an original
signature. A photocopy of this Agreement
may be used in any action brought to enforce or construe this Agreement.
20.
No Waiver. No failure to exercise and no delay in
exercising any right, power or remedy under this Agreement shall impair any
right, power or remedy which any Party may have, nor shall any such delay be
construed to be a waiver of any such rights, powers or remedies or an
acquiescence in any breach or default under this Agreement, nor shall any
waiver of any breach or default of any Party be deemed a waiver of any default
or breach subsequently arising.
Dated
this ___ day of ______ [date].
[Party A]
[Party
B]
By:______________________________________
Its:______________________________________
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