EXHIBIT 10.49
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release ("Agreement") is made and
entered into as of January 19, 2001 by and between XXXXXXX X. XXXXXX, and XXXXXX
XXXXXXXX doing business as XXXXXXXX DESIGN GROUP (collectively referred to as
"Claimants"), on the one hand, and EXSTREAM DATA, INC. (formerly known as E-Fax
Communications, Inc.) a California corporation ("Exstream"), XXXXXX XXXXXX, XXXX
XXXXXXX, and XXXXXX DUMPER (collectively referred to as "Defendants"), on the
other hand. E*COMNETRIX, INC., a Canadian corporation ("E*Comnetrix"), is also a
party to this Agreement.
WHEREAS, on June 5, 2000, plaintiff Xxxxxxx X. Xxxxxx filed a complaint
against Defendants, and others, in the Alameda County Superior Court for the
State of California (Case No. 826985-0), and then on July 12, 2000, filed a
First Amended Complaint against the same Defendants, and others, containing
causes of action for declaratory relief, fraud, conspiracy, breach of fiduciary
duty and injunctive relief (referred to hereafter as "the Action");
WHEREAS, by execution of this Agreement, the parties hereto wish to
terminate the Action, with prejudice, and wish to settle and dispose of any and
all potential or existing claims concerning the subject matter of the Action,
including the following additional potential claims by Claimants:
(a) All potential claims against Xxxxxxx X. Xxxxxxxx, Esq. and the law
firm of Xxxxxxxx & Biatch arising from the facts set forth in the
Complaint;
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(b) All potential claims for attorneys' fees under the Settlement
Agreement and Release between Xxxxxxx X. Xxxxxx and Exstream Data,
Inc. dated January 14, 1997; and
(c) All potential claims that Claimants were wrongfully precluded from
participating in the September 2000 share tender offer by E*Comnetrix,
Inc.
WHEREAS, Claimants and Defendants wish mutually to release each and every
existing and potential known or unknown dispute, claim, lawsuit, cause of action
and/or issue relating to the subject matter of the Action as described in the
preceding paragraph, based on existing facts known or unknown, which could give
rise to equitable or injunctive relief or damages, presently known or unknown,
which may or currently exist between them;
NOW, THEREFORE, in consideration of the covenants and conditions set forth
herein, and in consideration of the transfer of shares contemplated hereby, the
parties hereto agree as follows:
1. Issuance of E*Comnetrix Shares to Claimants in Exchange for Surrender of
Claimants' Owned Shares of Exstream. Upon execution of this Agreement by all
p[arties, as well as execution of the documentation described in paragraph 21
below, E*Comnetrix shall issue to XXXXXX and XXXXXXXX DESIGN GROUP,
respectively, 249,128 and 42,000 shares of E*Comnetrix common stock in exchange
for the surrender of those parties' owned shares of Exstream common stock
(47,453 and 8,000 (struck out and initialed in original) 8,6000 shares,
respectively) as well as their owned shares of XxxxxxXxxxx.xxx, Inc.
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2. Issuance of E*Comnetrix Shares to XXXXXX in Exchange for Surrender of
Claims for Warrants. Upon execution of this Agreement by all parties,
E*Comnetrix shall issue to XXXXXX, in addition to the E*Comnetrix shares in the
preceding paragraph, 50,000 shares of E*Comnetrix common stock in exchange for
the surrender by XXXXXX of his warrants to purchase 78,000 shares of Exstream
common stock. The parties agree that any promissory notes tendered by XXXXXX to
Exstream in the past are hereby deemed null and void.
3. Dismissal of the Action. Immediately after receipt of the E*Comnetrix
shares described in paragraphs 1 and 2 above, XXXXXX shall file a dismissal with
prejudice of the entire Action.
4. Mutual Release Between Claimants and Defendants. Claimants, on the one
hand, and Defendants, on the other hand, hereby fully and forever mutually
release and discharge the other party and its, his or her heirs, assigns,
successors, agents, administrators, officers, directors, employees, affiliated
companies, representatives, attorneys and all other person acting for any of
them from any and all past, present or future claims, demands, actions,
lawsuits, causes of action, disputes, and any other manner or asserting a claim
for equitable or injunctive relief or for damages (including attorneys' fees) of
any kind or nature whatsoever related to the subject matter of the Action as
described above which may exist as of the date of this Agreement, whether
ascertained or unascertained, whether or not known, suspected or claimed,
whether based on contract, tort, statute or other legal or equitable theories of
recovery.
5. Waiver of Civil Code Section 1542. The parties understand and agree that
this Agreement extends to all past and present claims of every nature and kind
relating to
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the subject matter of the Action whether known or unknown, suspected or
unsuspected, and all rights under Section 1542 of the California Civil Code are
hereby expressly waived by all parties. Such section reads as follows:
A general release does not extend to claims which the creditor does not
known 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.
The releasing parties each acknowledge that one or more of them may have
sustained losses that are presently unknown and unsuspected, and that such
losses as were sustained may give rise to additional losses and expenses in the
future which are not now anticipated. Nevertheless, the releasing parties each
acknowledge that this release has been negotiated and agreed upon in light of
this realization and, being fully aware of this situation, each of the releasing
parties intends to release, acquit and forever discharge the released parties as
set forth herein from any and all such unknown claims, including damages or
equitable or injunctive relief, which are unknown and unanticipated, provided
that they relate to the subject matter of the Action.
6. No Reliance; Independent Investigation. The undersigned agree that each
party hereto in entering into this Agreement relies upon his, her or its own
investigation and judgment in regard to all matters contained herein and that
he, she or it has not relied upon any representations by any other party in
entering into this Agreement, and that this Agreement is made and entered into
by each of the parties' volition. Each of the parties hereto further warrants
that this Agreement is made and entered into free of any duress, coercion or
undue influence from any source whatsoever.
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7. Advice of Counsel. The parties hereto acknowledge that (a) each has
relied upon the advice of his, her or its own counsel in connection with the
negotiation of this Agreement and prior to its execution, (b) that the legal
nature and effect of this Agreement has been fully explained to each party by
his, her or its own counsel, (c) that the terms and provisions, and the nature
and effect, of this Agreement are fully understood by each party, and (d) that
each party is relying solely upon the advice of that party's counsel.
8. No Admission of Liability. The parties further agree that this Agreement
is in the nature of a compromise and shall not be considered as an admission by
any of the released parties of any wrongdoing.
9. Litigation Regarding This Agreement. In the event of any dispute
resulting in litigation, arbitration or other proceeding pertaining to this
Agreement or alleging any breach thereof, the prevailing party or parties shall
be entitled to recover all expenses of litigation and attorneys' fees incurred
in addition to any amount recoverable as a judgment. Such expenses of litigation
and attorneys' fees shall include, without limitation, all costs and expenses in
preparing the defense of the action or proceeding, in establishing the validity
of this Agreement, and in prosecuting any counterclaim or cross-claim based on
this Agreement.
10. Final Agreement. The terms of this Agreement are intended by the
parties as a final expression of their agreement with respect to the terms
included herein and may not be contradicted by evidence of any price o
contemporaneous agreement. The parties further intend that this Agreement
constitutes the complete and exclusive statement of its
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terms, and that no extrinsic evidence whatsoever may be introduced to vary its
terms in any judicial proceeding involving this Agreement.
11. Fees and Costs. The parties agree to bear their own costs, expenses,
and attorneys' fees incurred in connection with this Action.
12. Governing Law. This Agreement shall be governed by the laws of the
State of California.
13. Jurisdiction. Any litigation between the parties which arises out of or
relates to this Agreement, or the breach hereof, shall be brought exclusively in
the court located in Alameda County, California.
14. Drafting. This Agreement shall be construed as jointly drafted by all
parties, and the rule construing ambiguities against the drafter shall not
apply.
15. Prohibition of Oral Modification. This Agreement may be modified only
by a writing signed by all parties affected by said modification.
16. Severability. The parties hereto agree that if any provision of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remaining provisions shall nevertheless continue in full
force without being impaired or invalidated in any way.
17. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed a duplicate original, but all of which together shall
constitute one and the same instrument.
18. Corporate Authorization. The parties hereto who are signing this
Agreement on behalf of a corporate or other business entity represent and
warrant that they are authorized by that entity to sign this Agreement on its
behalf.
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19. Board and/or Shareholder Approval. Each of the parties hereto commits
himself to obtaining Board and/or shareholder approval, as necessary, with
respect to the matters set forth herein.
20. Agreement Binding on Successors. This Agreement shall be binding upon,
and shall inure to the benefit of, the parties hereto, and their respective
officers, directors, partners, employees, predecessors in interest, agents,
heirs, administrators, executors, beneficiaries, successors, representatives and
assigns.
21. Additional Documents/Actions. Each of the parties hereto agrees to sign
whatever documents and take such further actions as are reasonably necessary to
effectuate the terms and provisions of this Agreement, and to refrain from
taking any action that would prevent the parties from carrying out the intent of
this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date
set forth above.
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
XXXXXXX X. XXXXXX
/s/ Xxxxxx Xxxxxxxx
-----------------------------------------
XXXXXX XXXXXXXX dba
XXXXXXXX DESIGN GROUP
EXSTREAM DATA, INC.
By: /s/ Xxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxx
Title: President
/s/ Xxxx Xxxxxxx
-----------------------------------------
Xxxx Xxxxxxx
/s/ Xxxxxx Dumper
-----------------------------------------
Xxxxxx Dumper
E*COMNETRIX, INC.
By: /s/ [Illegible]
-------------------------------------
Name:
Title: President
