SETTLEMENT AND MUTUAL RELEASE AGREEMENT
EXHIBIT
10.75
This
SETTLEMENT AND MUTUAL GENERAL RELEASE AGREEMENT (“Agreement”) is
entered into by and among Wireless Billing Systems, a California corporation
(hereafter referred to as “Wireless”), Primal
Solutions, Inc., a Delaware corporation (hereafter referred to as “Primal”), and
CyberSource Corporation (hereafter referred to as “CyberSource”), a
Delaware corporation and the successor by merger to Xxxxxxxxx.Xxx Holdings, Inc.
(hereafter referred to as “Xxxxxxxxx.Xxx”), a
Delaware corporation formerly known as Lightbridge, Inc. (hereafter referred to
as “Lightbridge”), a
Delaware corporation, and the successor by merger to Corsair Communications,
Inc. (hereafter referred to as “Corsair”). Wireless
and Primal are collectively the “Primal Parties” and
are each a “Primal
Party”, and CyberSource on behalf of itself as well as its predecessors
Xxxxxxxxx.Xxx, Lightbridge, and Corsair are collectively the “CyberSource Parties”
and each is a “CyberSource
Party.” Each of the Primal Parties and the CyberSource Parties
is a “Party”
and collectively are the “Parties.”
RECITALS
This
Agreement is made by the Parties with reference to the following
facts:
A. Wireless
executed that certain Secured Promissory Note dated May 26, 1999, in the
principal amount of Two Million Two Hundred Thirty-Eight Thousand Two Hundred
Forty-Two Dollars ($2,238,242.00) in favor of Corsair (the “Original
Note”);
B. In
connection with the Original Note, Wireless and Corsair executed that certain
Security Agreement dated as of May 26, 1999 (the “Security Agreement”),
pursuant to which Corsair was granted a security interest in certain assets of
Wireless;
C. Wireless
executed that certain Note Agreement dated as of January 1, 2001 (the “Note Agreement”) and
that certain Amended and Restated Secured Promissory Note on January 1, 2001, in
the principal amount of One Million Six Hundred Ninety-Six Thousand Three
Hundred Ninety-Four Dollars and Eighteen Cents ($1,696,394.18) in favor of
Corsair (together with the Note Agreement, the “January 2001 Amended
Note”);
D. Wireless
and Corsair executed a letter agreement dated December 20, 2001, revising the
terms of the January 2001 Amended Note. The January 2001 Amended
Note, as amended by said letter agreement (the “December 2001 Amended
Note”), amended and restated the Original Note;
E. Lightbridge
succeeded to the assets and liabilities of Corsair by way of
merger;
F Wireless
executed that certain 2002 Amended and Restated Secured Promissory Note dated
December 27, 2002, in the principal amount of One Million Seven Hundred
Twenty-Two Thousand Four Hundred Seventeen Dollars ($1,722,417.00) in favor of
Lightbridge (the “2002
Amended Note”), which amended and restated the December 2001 Amended
Note;
G. Primal
executed that certain Guaranty dated as of December 27, 2002 (the “Guaranty”) in favor
of Lightbridge in connection with the 2002 Amended Note;
H. Wireless
executed that certain 2004 Amended and Restated Secured Promissory Note dated
March 27, 2004, in the principal amount of One Million Five Hundred Nine
Thousand Nine Hundred Nineteen Dollars ($1,509,919.00) in favor of Lightbridge
(the “2004 Amended
Note”), which amended and restated the December 2002 Amended
Note;
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I. Primal
executed that certain Confirmation of Guaranty dated as of March 27, 2004 (the
“2004 Confirmation of
Guaranty”) in favor of Lightbridge in connection with the 2004 Amended
Note;
J. Wireless
executed that certain 2005 Amended and Restated Secured Promissory Note dated
June 30, 2005, in the principal amount of Nine Hundred Eighty-Two Thousand Two
Hundred Forty-Three Dollars and Forty Cents ($982,243.40) in favor of
Lightbridge (the “2005
Amended Note”), which amended and restated the 2004 Amended
Note;
K. Primal
executed that certain Confirmation of Guaranty dated as of June 30, 2005 (the
“2005 Confirmation of
Guaranty”) in favor of Lightbridge in connection with the 2005 Amended
Note;
L. Wireless
executed that certain 2006 Amended and Restated Secured Promissory Note dated
March 31, 2006, in the principal amount of Nine Hundred Eighty-Two Thousand Two
Hundred Forty-Three Dollars and Forty Cents ($982,243.40) in favor of
Lightbridge (the “2006
Amended Note”), which amended and restated the 2005 Amended
Note;
M. Primal
executed that certain Confirmation of Guaranty dated as of March 31, 2006 (the
“2006 Confirmation of
Guaranty”) in favor of Lightbridge in connection with the 2006 Amended
Note;
N. Lightbridge,
Wireless, Primal and certain other parties executed that certain Subordination
Agreement dated as of March 31, 2006 and amended and restated such agreement as
of March 29, 2007 (as so amended and restated, the “Subordination
Agreement”);
O. Wireless
executed that certain 2007 Amended and Restated Secured Promissory Note dated
January 1, 2007, in the principal amount of Nine Hundred Eighty-Two Thousand Two
Hundred Forty-Three Dollars and Forty Cents ($982,243.40) in favor of
Lightbridge (the “2007
Amended Note”), which amended and restated the 2006 Amended
Note;
P. Primal
executed that certain Confirmation of Guaranty dated as of January 1, 2007 (the
“2007 Confirmation of
Guaranty”) in favor of Lightbridge in connection with the 2007 Amended
Note;
Q. Effective
April 30, 2007, Lightbridge changed its name to Xxxxxxxxx.Xxx Holdings,
Inc.;
R. Effective
November 1, 2007, CyberSource succeeded to the assets and liabilities of
Xxxxxxxxx.Xxx by way of merger; and
Q. It
is the intention and desire of the Parties at this time to settle, resolve, and
terminate all outstanding claims, disputes, and obligations among or between any
and all Primal Parties, on the one hand, and any and all CyberSource Parties, on
the other hand, (including, without limitation, the Original Note, the Security
Agreement, the January 2001 Amended Note, the December 2001 Amended Note, the
2002 Amended Note, the Guaranty, the 2004 Amended Note, the 2004 Confirmation of
Guaranty, the 2005 Amended Note, the 2005 Confirmation of Guaranty, the 2006
Amended Note, the 2006 Confirmation of Guaranty, the Subordination Agreement,
the 2007 Amended Note, and the 2007 Confirmation of Guaranty (collectively, the
“Loan
Documents”)) upon the terms and conditions set forth in this
Agreement.
NOW,
THEREFORE, in consideration of the above recitals and the covenants and
agreements set forth below, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Parties agree as
follows:
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AGREEMENT
1. Purpose of this
Agreement.
This Agreement is intended as a full
and final settlement and compromise of any and all Claims (as that term is
defined hereinafter) that any Primal Party, on the one hand, and any CyberSource
Party, on the other hand, has or may have against the other arising out of,
concerning, pertaining to or otherwise connected with the subject matter of this
Agreement. Neither this Agreement nor any of its terms is admissible
in any proceeding among or between any Primal Party, on the one hand, and any
CyberSource Party, on the other hand, except in a proceeding to interpret or
enforce its terms. It is the intention of the Parties that this
Agreement shall be effective as a full and final accord and satisfaction of any
and all Claims among or between any Primal Party, on the one hand,
and any CyberSource Party, on the other hand (including, without limitation,
those obligations arising under the Loan Documents).
2. Payment and Other
Consideration.
A. Primal
shall pay and deliver or cause to be paid and delivered to CyberSource in
immediately available funds in the form of either a certified check or wire
transfer the sum of ONE HUNDRED THOUSAND DOLLARS (USD$100,000.00) (the “Settlement Amount”),
within five (5) business days of the date on which the last Party to execute
this Agreement signs this Agreement and provides a fully-executed signature page
to the other Parties.
B. The
above payment by Primal shall be accepted by CyberSource in full settlement and
satisfaction of all obligations of any and all Primal Parties pursuant to the
Loan Documents and any and all other obligations of any kind whatsoever owed by
any Primal Party to any CyberSource Party or its predecessors in
interest.
C. The
CyberSource Parties’ releases as more particularly set forth in Section 3,
below, are expressly conditioned on receipt of the Settlement
Amount. Upon receipt of the Settlement Amount, CyberSource
promptly shall deliver or cause to be delivered to Primal for cancellation
originals or copies of each of the Loan Documents, to the extent such documents
have not previously been delivered to a Primal Party for cancellation; provided
that in the event CyberSource is not able to locate and, therefore, does not
return all of the originals of the Loan Documents to Primal, the Primal Parties
and CyberSource Parties hereby deem any and all unreturned originals to have
been canceled and of no further force and effect.
D. Effective
immediately upon receipt by CyberSource of the Settlement Amount, each
CyberSource Party hereby releases and terminates any and all of its interest in
the security interests it had, has or may have upon any assets (real and
personal) of any Primal Party (including, without limitation, any security
interests it has pursuant to the Security Agreement). The CyberSource
Parties agree that, upon the effectiveness of such releases, it hereby grants to
the Primal Parties the right and authority to take, or cause to be taken, at the
Primal Parties’ sole cost and expense, all appropriate action, and to do, or
cause to be done, all things reasonably necessary, proper, or advisable in order
to effectuate such release and termination (including, without limitation,
approving and/or signing any termination statement necessary to release the
financing statement and other UCC filings previously filed with the California
Secretary of State, the United States Patent and Trademark Office, or any
similar governmental authority) and make effective the provisions of this
Agreement.
3. Mutual Releases of All
Claims.
A. Effective
upon the later of: (i) the expiration of one hundred (100) days from the date on
which the Settlement Amount is received by CyberSource without the occurrence of
an Insolvency
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Event (as
hereinafter defined) during such one hundred (100)-day period; or (ii) if an
Insolvency Event has occurred within such 100 days, the date that any and all
limitations periods for an action for the avoidance of the payment has passed
without any such action’s having been commenced, each of the CyberSource
Parties, for itself and its respective predecessors, successors, assigns,
attorneys and other representatives, hereby releases and forever discharges each
of the Primal Parties and each of their respective current and former partners,
members, agents, parents, subsidiaries, representatives, officers, directors,
shareholders, employees, attorneys, affiliates, predecessors, successors, and
assigns, and each of them, from any and all claims, disputes, disagreements,
debts, suits, liabilities, demands, damages, costs, obligations, contracts,
agreements, judgments, actions, and causes of action of whatsoever kind and
nature (upon any legal or equitable theory, whether contractual, in tort, common
law, statutory or otherwise), whether known or unknown, fixed or contingent,
anticipated or unanticipated, which any such releasing party has, may have, or
may hereafter have or claim to have, against any of them respecting anything
whatsoever done or omitted to be done on or prior to the date of this Agreement,
based on, arising out of, or in connection with (a) the Loan Documents and (b)
any and all other contracts, agreements, arrangements, or obligations among or
between any Primal Party , on the one hand, and any CyberSource Party, on the
other hand (including each of their respective predecessors, successors, and
assigns) (collectively, the “Claims”). For
purposes of this Agreement, an “Insolvency Event” means the occurrence of any of
the following events: (x) the commencement by a Primal Party of
a voluntary case or other proceeding seeking liquidation, reorganization, or
other relief with respect to a Primal Party of its debts under any bankruptcy,
insolvency, or similar law now or hereafter in effect, that authorizes the
reorganization or liquidation of such Party or its debt or the appointment of a
trustee, receiver, liquidator, custodian, or other similar official of it or any
substantial part of its property; (y) the consent of a Primal Party to any such
relief or to the appointment of or taking possession by any such official in any
involuntary case or other proceeding commenced against such Primal Party; or (z)
the execution and delivery by a Primal Party of a general assignment for the
benefit of creditors.
B. Effective
upon execution of this Agreement and CyberSource’s receipt of the Settlement
Amount, each of the Primal Parties, for itself and its respective predecessors,
successors, assigns, attorneys and other representatives, hereby releases and
forever discharges each of the CyberSource Parties and each of their respective
current and former partners, members, agents, parents, subsidiaries,
representatives, officers, directors, shareholders, employees, attorneys,
affiliates, predecessors, successors, and assigns, and each of them, from any
and all Claims.
C. For
the purposes of implementing a full and complete release, each of the Primal
Parties, for itself and its respective predecessors, successors, assigns,
affiliates, attorneys and other representatives, and each of the CyberSource
Parties, for itself and its respective predecessors, successors, assigns,
affiliates, attorneys and other representatives, expressly acknowledge (i) that
this Agreement shall provide the Parties their complete and sole remedies,
whether at law or in equity, and (ii) that the release it gives in this
Agreement is intended to include in its effect, without limitation, claims that
it did not know or suspect to exist in its favor at the time of the effective
date of this Agreement, regardless of whether the knowledge of such claims or
the facts upon which they might be based would materially have affected the
settlement of this matter. Each of the Primal Parties, for itself and
its respective predecessors, successors, assigns, affiliates, attorneys and
other representatives, and each of the CyberSource Parties, for itself and its
respective predecessors, successors, assigns, affiliates, attorneys and other
representatives, expressly acknowledges that they may hereafter discover facts
in addition to or different from those which they now know or believe to be true
with respect to Claims, but that it is their intention to fully and finally and
forever settle and release any and all matters, disputes and differences,
whether known or unknown, fixed or contingent, anticipated or unanticipated,
suspected or unsuspected, which they may have had, may have or may hereafter
have or claim to have against the other. In furtherance of this
intention, the releases herein shall be and remain in effect as full and
complete general releases notwithstanding the discovery or
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existence
of any such additional or different facts. Each of the Primal
Parties, for itself and its respective predecessors, successors, assigns,
affiliates, attorneys and other representatives, and each of the CyberSource
Parties, for itself and its respective predecessors, successors, assigns,
affiliates, attorneys and other representatives, acknowledges that it has read,
considered and understands the provisions of California Civil Code Section 1542
with respect to the Claims which reads as follows:
A GENERAL
RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN
BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR.
Each of
the Primal Parties, for itself and its respective predecessors, successors,
assigns, affiliates, attorneys and other representatives, and each of the
CyberSource Parties, for itself and its respective predecessors, successors,
assigns, affiliates, attorneys and other representatives, hereby expressly,
knowingly, and voluntarily waives and relinquishes any and all rights and
benefits that either of them may have under California Civil Code Section 1542
with respect to the Claims.
The
Parties hereby acknowledge and agree that nothing contained in this section
shall release or discharge them from the rights, duties, and obligations assumed
under this Agreement.
4. No Prior Assignment of
Claims.
Each Primal Party, on the one hand, and
CyberSource Party, on the other hand, jointly and severally represents and
warrants to the other that there is no assignment, transfer, or purported
assignment or transfer of any Claim against another Party or to any other person
or entity not a party hereto, except as indicated herein that CyberSource is the
successor in interest to Xxxxxxxxx.Xxx (f/k/a Lightbridge), which was the
original payee of the 2002 Amended Note, the 2004 Amended Note, the 2005 Amended
Note, the 2006 Amended Note, and the 2007 Amended Note, and that Lightbridge is
the successor in interest to Corsair, which was the original payee of the
Original Note, the January 2001 Amended Note, and the December 2001 Amended
Note, and that such Party is fully entitled to fully compromise and settle the
same. Each Primal Party, on the one hand, and CyberSource Party, on
the other hand, jointly and severally represents and warrants to the other that
it has all rights and authority to fully compromise and settle all Claims such
Party and any and all of its direct and indirect predecessors in interest had,
have or may have against the other Parties (including without limitation all
obligations arising under the Loan Documents). Each Primal
Party, on the one hand, and CyberSource Party, on the other hand, jointly and
severally represents and warrants that there are no suits, arbitrations, or
other actions active or pending by such Party against or affecting the other
Party regarding the subject matter of this Agreement. Each Primal
Party, on the one hand, and CyberSource Party, on the other hand, executing this
Agreement represents and warrants that it has the full and absolute authority
and power to do so and each other Party may rely upon such representation and
warranty in executing this Agreement.
5. Confidentiality;
Nondisparagement.
A. Each
Primal Party, on the one hand, and CyberSource Party, on the other hand, agrees
that the terms and conditions of this Agreement are confidential and shall not
be disclosed to any person or persons except to (a) attorneys, accountants or
other individuals consulted by such Party for purposes of understanding the
interpretation, application and legal effect of this Agreement, (b) affiliates
of such Party, or (c) persons conducting due diligence in connection with
negotiating a financing or other similar
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transaction
with such Party, provided such persons agree to be bound by the terms of this
confidentiality provision; provided, however,
that any Party may make any public disclosure it believes in good faith is
required by applicable law or any listing or trading agreement concerning its
publicly-traded securities.
B. Each
Primal Party, on the one hand, and CyberSource Party, on the other hand, agrees
not to make any untrue, defamatory, libelous, denigrating, or disparaging
comments, references to, or statements about the other Party, including but not
limited to any Party’s past, present and future business operations or conduct,
their respective products and services, and any Party’s past or present agents,
officers, employees, shareholders, attorneys, successors, heirs, assigns, and
representatives. Each Primal Party, on the one hand, and CyberSource
Party, on the other hand, further agrees that it will not knowingly engage in
any act, the natural or reasonably foreseeable result of which is harm, damage,
or loss to the reputation, property, financial interests, prospects, operations,
or business of any other Party.
C. This
provision shall be enforceable through any appropriate form of judicial process,
including but not limited to an action seeking injunctive relief. In
the event any such action is filed and pursued, the prevailing Party, as
determined by the applicable court, shall have the right to recover attorneys’
fees and costs expended in pursuing any such relief.
6. California
Law.
All questions with respect to the
construction of this Agreement, and the rights and liabilities of the Parties,
shall be governed by the laws of the State of California. Any suit to
interpret or enforce the terms of this Agreement shall be brought only in the
County of Santa Xxxxx, State of California, and the Parties consent to exclusive
jurisdiction and venue in said County.
7. Interpretation; No
Admission.
All Parties acknowledge that they have
had the opportunity to be represented by counsel of their own choice in
connection with the negotiation, preparation, and execution of this
Agreement. It is further agreed that in any interpretation of the
language hereof no interpretation shall be made against or for any Party simply
on the basis of who drafted or created the language in question. This
Agreement is being entered into as a compromise and settlement of Claims and
shall not be treated as an admission of liability, responsibility, or wrongdoing
on the part of any Party, nor on the part of any person or entity released
herein, at any time or for any purpose.
8. Covenant Not to
Xxx.
The Primal Parties, on the one hand,
and CyberSource Parties, on the other hand, agree that they will forever refrain
and forebear from commencing, instituting or prosecuting any lawsuit, action or
other proceeding against the other Party, based on, arising out of, or in
connection with any Claim, that is released and discharged by reason of this
Agreement, provided, however, that the
Parties’ covenant hereunder shall terminate in the event the CyberSource
Parties’ release is prevented from ever becoming effective as a result of the
occurrence of an Insolvency Event per Section 3A.
9. Attorneys’
Fees.
In the event suit is instituted to
enforce the terms of this Agreement, the prevailing Party therein shall be
entitled to an award of reasonable attorneys’ fees and costs against the
non-prevailing Party. Each Party shall bear its own attorneys’ fees
and costs incurred in connection with the settlement embodied in this
Agreement.
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10. Entire
Agreement.
This Agreement contains the entire
agreement and understanding concerning the subject matter hereof between the
Parties, and supersedes and replaces all prior negotiations, proposed agreements
and agreements, written or oral. Each of the Parties acknowledges
that no other Party nor any agent or attorney of any such Party has made any
promise, express or implied, not contained in this Agreement, to induce
execution of this Agreement. Each of the Parties further acknowledges
that it is not executing this instrument in reliance on any promise,
representation, or warranty not contained in this document.
11. Successors.
The terms of this Agreement shall be
binding upon and inure to the benefit of the respective predecessors,
successors, and assigns of the Parties.
12. Severability;
Headings.
If any provision or term of this
Agreement is determined by a court of competent jurisdiction to be illegal or
unenforceable for any reason, such determination shall not affect the validity
of the remaining provisions or terms. The headings within this
Agreement are for the purpose of reference only and shall not limit or otherwise
be used to construe or interpret any of the terms of this
Agreement.
13. Counterparts.
This Agreement may be executed in
counterparts and shall become effective when such counterparts or facsimile
copies thereof have been exchanged between the Parties.
14. Modification.
This Agreement may not be modified,
amended, or terminated except pursuant to a written instrument duly executed and
acknowledged by the Parties, or their successors in interest.
15. Voluntary and Knowing
Agreement.
By their authorized signatures below,
the Parties certify that they have carefully read and fully considered the terms
of this Agreement, that they have had an opportunity to discuss these terms with
attorneys or advisors of their own choosing, that they agree to all of the terms
of this Agreement, that they intend to be bound by them and to fulfill the
promises set forth herein, and that they voluntarily and knowingly enter into
this Agreement with full understanding of its binding legal
consequences.
[Signature
Page Follows]
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WHEREFORE,
the Parties have executed this Settlement and Mutual Release
Agreement.
CAUTION: PLEASE
READ THIS ENTIRE AGREEMENT BEFORE SIGNING. BY EXECUTING THIS
AGREEMENT, EACH PARTY ACKNOWLEDGES THAT IT OR ITS AUTHORIZED SIGNATORY HAS READ
THIS AGREEMENT IN ITS ENTIRETY, UNDERSTANDS IT, AND IS VOLUNTARILY ENTERING INTO
IT WITH THE INTENTION OF RELINQUISHING ALL CLAIMS AND RIGHTS, KNOWN AND UNKNOWN,
OTHER THAN THOSE SPECIFICALLY SET FORTH IN THIS AGREEMENT.
|
DATED:
April 15, 2008
|
Wireless Billing Systems, | ||
| a California corporation | |||
|
By: /s/ Xxxxxx X.
Xxxxxxx
|
|||
| Name: | Xxxxxx X. Xxxxxxx | ||
| Its: | Chief Executive Officer | ||
|
DATED:
April 15, 2008
|
Primal
Solutions, Inc.,
|
||
|
a
Delaware corporation
|
|||
|
By:
/s/ Xxxxxx X.
Xxxxxxx
|
|||
| Name: | Xxxxxx X. Xxxxxxx | ||
| Its: | Chief Executive Officer | ||
|
DATED:
April __ , 2008
|
CyberSource
Corporation,
|
||
|
a
Delaware corporation,
|
|||
| on behalf of itself as well as Xxxxxxxxx.Xxx, | |||
| Lightbridge, and Corsair | |||
|
By:
/s/ Xxxxx X.
Xxx
|
|||
| Name: | Xxxxx X. Xxx | ||
| Its: | VP & General Counsel | ||
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