AGREEMENT OF FULL AND FINAL
SETTLEMENT, RELEASE AND DISCHARGE OF ALL CLAIMS
AND STIPULATION FOR LIMITED RESERVATION OF JURISDICTION
This Agreement of Full and Final Settlement, Release and Discharge of
All Claims And Stipulation For Limited Reservation of Jurisdiction
("Agreement") is made and entered into as of the date last below written (as
contemplated in the April 12, 2005 "Tentative Settlement Agreement"
(referenced herein below)) and with the intent that this Agreement be
effective as of March 31, 2005 (the "Effective Date"), between and among
CYBERTEL CAPITAL CORPORATION, a Nevada corporation, successor-in-interest to
CYBERTEL COMMUNICATIONS CORPORATION, a Nevada corporation ("Cybertel"), on the
one hand, and XXX XXXXXX ("Xxxxxx") and XXXXXX XXXXXX ("Xxxxxx") (collectively
the "Core Members") and CORE ENERGY LLC, a Nevada limited liability company
("Core") (sometimes collectively "Defendants" and individually "Defendant"),
on the other, in contemplation of the following facts and circumstances.
RECITALS
A. Cybertel is a public telecommunications company, and an issuer of
securities regulated under 15 U.S.C. Section 77a, et seq. (the "1933 Act"), 15
U.S.C. Section 78a, et seq. (the "1934 Act") and the rules and regulations
promulgated thereunder with a designated ticker symbol CYBT.
B. Core is an energy company actively engaged in the production of crude
oil from properties located within the State of California.
C. The Core Members are each individuals residing within the State of
California, and, as confirmed hereby, hold all issued and outstanding
membership interests in Core.
D. On or about March 5, 2004, the Core Members executed that certain
Agreement And Plan of Reorganization by and between Cybertel, Core and the
Core Members contemplating the issuance, transfer and exchange of certain
securities between Core and Cybertel, and grant of debt financing to Core (the
"Reorganization Agreement"). The execution, validity and effect of the
Reorganization Agreement is currently in dispute. However, the parties
acknowledge that Cybertel received information from Core and completed certain
SEC reports based upon Cybertel's assumption that the Reorganization Agreement
was in full force and effect.
E. During the period beginning on or about March 5, 2004, and continuing
thereafter through to the Effective Date (including, without limitation, on
the dates and in the amounts set forth below), Core entered into certain
promissory notes in favor of Cybertel which promissory notes remain unpaid and
outstanding (the "Promissory Notes") and which Cybertel contends were issued
in accordance with the Reorganization Agreement, a contention which Defendants
deny:
Issue Date Principal Amount Maturity Date
March 5, 2004 $100,000.00 October 31, 2004
March 30, 2004 $50,000.00 November 30, 2004
July 7, 2004 $25,000.00 January 7, 2005
September 1, 2004 $25,000.00 February 7, 2005
November 22, 2004 $35,000.00 May 22, 2005
December 28, 2004 $25,000.00 May 28, 2005
January 6, 2005 $25,000.00 June 6, 2005
January 25, 2005 $25,000.00 July 25, 2005
February 15, 2005 $25,000.00 August 15, 2005
F. Core has received the total and complete sum of $335,000.00 from
Cybertel pursuant to the Promissory Notes.
G. A dispute exists among the parties hereto as to whether, among other
things, the Reorganization Agreement was ever fully executed and, if so,
whether the transactions contemplated thereby were, in fact, "closed," in
compliance with terms of the Reorganization Agreement and prior to the notice
of termination issued by the Core Members.
H. On or about March 22, 2005, Cybertel filed suit against Defendants in
the Superior Court of California, County of San Diego (the "Court"), entitled
Cybertel Capital Corporation v. Core Energy LLC, et al, Civil Action No. GIC
844651, for Breach of Contract, Breach of Promissory Notes, Declaratory
Relief, Fraud, Derivative Action, Injunction, and Preliminary Injunction/TRO,
arising out of the Reorganization Agreement and Promissory Notes (the
"Lawsuit"). The Lawsuit is presently pending before the above captioned
Court.
I. In accordance with Paragraph 2 of the April 12, 2005 "Tentative
Settlement Agreement" reached following the settlement conference held at the
Del Mar Heights offices of Xxxxxxxx Xxxxxx Xxxxxxx & Xxxxxxx LLP, the parties
now desire to resolve, fully and forever, all past and existing disputes
between Cybertel, on the one hand, and Defendants, or any of them, on the
other, including, without limitation, any claims and disputes arising out of
the Lawsuit and any right of appeal therefrom and/or arising out of or
relating to the Reorganization Agreement and/or the Promissory Notes as
referenced herein above and below, to buy their peace, and to avoid the costs
and expenses associated with further or future protracted litigation with each
other, on the terms and conditions hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing facts and circumstances
and the mutual agreements, covenants and conditions set forth herein and with
the intention of being legally bound hereby, the parties hereby agree as
follows:
1. No Admission. By entering into this Agreement, no party to this
Agreement is admitting to the sufficiency of any claims, allegations,
assertions, contentions, rights, or positions of any other party hereto, or to
the sufficiency of any defenses, to any such claims, allegations, assertions,
contentions, rights or positions, or to the sufficiency of any right of appeal
to any judgments, orders or decrees previously entered by any court,
arbitrator or arbitration panel of competent jurisdiction as against any other
party hereto. This Agreement affects the settlement of claims which are
denied and contested. The parties merely desire to resolve all past and
existing disputes between them, including, without limitation, any claims and
disputes arising out of the Reorganization Agreement, Promissory Notes and the
Lawsuit (and any right of appeal thereto), in an amicable fashion. The
parties have entered into this Agreement in good faith and with the desire to
forever settle among them the issues involved in this Agreement as set forth
below.
2. Dismissal of Lawsuit.
2.1. Dismissal. Cybertel irrevocably authorizes and directs: (a) its
attorneys to execute, concurrently with the execution of this Agreement, the
Request for Dismissal (Entire Action -Without Prejudice) attached hereto as
Exhibit A to this Agreement (the "Request For Dismissal"); (b) its attorneys
to immediately deliver by mail the executed original of the Request for
Dismissal to Xxxxx Xxxxx, counsel for Core; (c) Xxxxx Xxxxx, counsel for Core,
to immediately file the Request for Dismissal with the Court and thereafter to
cause conformed copies, when received from the Court, to be mailed to counsel
for all parties to the Lawsuit; and (d) its attorneys to execute and deliver
such other documents and take any other action consistent with the terms of
this Agreement as may be required by Defendants to secure the dismissal of the
Lawsuit, without prejudice, pursuant to California Code of Civil Procedure
Section 581, et seq., and in accordance with CCP Section 664.6, and, to the
extent required under paragraph 2.2, below, San Diego local rule 2.14.
2.2. Stipulation Reserving Jurisdiction. For the sole purpose of
reserving the jurisdiction of the Court to enter judgment against Core upon
payment default under paragraph 5.2, below, or to resolve disputes submitted
under paragraph 8.2, below, each party hereby stipulates and agrees that the
Superior Court of California, County of San Diego, shall retain jurisdiction
in this matter only for the limited purpose of: (a) entering judgment under
the Stipulation (defined below) pursuant to paragraph 5.2 of this Agreement;
or (b) resolving disputes submitted under paragraph 8.2 of this Agreement.
3. Cancellation of Promissory Notes. As consideration for the payment
obligation of Core set forth in paragraph 4., below, Cybertel, on its own
behalf and on behalf of each of its Related Parties, does hereby fully and
forever: (a) cancel the Promissory Notes; and (b) release, remise, acquit and
discharge Defendants, and each of them, and each of their respective Related
Parties from any and all liability or other obligation under the Promissory
Notes. In furtherance hereof, Cybertel represents and warrants to Defendants,
and each of them, that Cybertel shall, concurrently with the execution of this
Agreement, xxxx each original of the Promissory Notes "Cancelled," and deliver
said cancelled original to Xxxxx Xxxxx, counsel for Core.
4. Payments.
4.1. Settlement Amount. As additional consideration for the full
and final settlement and compromise of the Lawsuit as between the parties
hereto and issuance of the releases made hereunder, Cybertel agrees to accept
from Core and provided Cybertel complies with the terms and conditions of this
Agreement, including, without limitation, the release and dismissal provisions
set forth herein, Core agrees to pay to Cybertel, in the manner set forth in
paragraph 4.2., below, an amount equal to ONE HUNDRED NINETY THOUSAND AND
NO/100THS DOLLARS ($190,000.00) (the "Settlement Amount") plus interest
thereon at the rate of 6% per annum from and after June 23, 2005, until paid,
in full, in lawful currency of the United States of America.
4.2. Terms of Payment. Core shall pay the Settlement Amount to
Cybertel in installments, as follows (said installment payments hereinafter
collectively referred to as the "Installment Payments" and individually
referred to as the "Installment Payment"):
4.2.1. no Installment Payments shall be due or payable before
July 23, 2005;
4.2.2. interest-only Installment Payments, in the amount of
NINE HUNDRED FIFTY AND NO/100THS DOLLARS ($950.00) per month, shall be paid to
Cybertel in accordance with the schedule set forth on Exhibit B to this
Agreement;
4.2.3. Installment Payments consisting of both principal and
interest, shall be paid to Cybertel in accordance with the schedule set forth
on Exhibit C to this Agreement;
4.2.4. payment of each Installment Payment shall be made by
delivering to Cybertel, a check in the amount of the Installment Payment,
payable to "Cybertel Capital Corporation." All such payments shall be
received by Cybertel on or before the due date for such payment, or otherwise
be subject to default.
4.3. Prepayment. Notwithstanding the provisions of paragraph 4.2,
above, Core may, in Core's sole and absolute discretion, prepay the Settlement
Amount or any portion thereof, without penalty (and if payment-in-full,
without further compliance with the payment schedules set forth in Exhibit B
or Exhibit C), at any time, on or after the Effective Date. Partial
pre-payments will be applied first to unpaid principal then to accrued
interest, if any.
4.4. No Other Payment. Other than as specifically set forth in
this paragraph 4., or under the terms of this Agreement, no party to this
Agreement shall make or cause to be made any other monetary payment to any
other party hereto. All parties shall report any payments made or received by
said parties on their respective tax returns in a manner consistent with this
Agreement. Core and Cybertel each agree to indemnify and hold the other
harmless from and against any claims arising out of or related to the tax and
accounting treatments elected by such party, as well as any public reporting
requirements or public statements made (if any), relating to the payments set
forth in this agreement. Except as provided in paragraphs 9., and 14.,
below, each party shall bear their own attorneys' fees, expert fees, and other
costs incurred as a result of the Lawsuit.
5. Stipulated Judgment/Payment Default.
5.1. Stipulation-Execution/Delivery. Cybertel and Core shall each
execute the Stipulation for Entry of Judgment ("Stipulation") in the form
attached hereto as Exhibit D, concurrently with the execution of this
Agreement. Cybertel and Core each irrevocably authorize and direct their
respective attorneys to: (a) execute the Stipulation concurrently with the
execution of this Agreement; and (b) deliver the executed original of the
Stipulation to J. Xxxx Xxxxx, Esq., counsel for Cybertel, to hold in trust
until such time as the Stipulation is either filed with the Court as provided
in subparagraph 5.2., below, or returned to Xxxxx Xxxxx, Esq., counsel for
Core, as provided in subparagraph 5.3., below
5.2. Notice of Default/Enforcement. Except as permitted under
paragraph 4.3, above, in the event Cybertel does not receive when due, any of
the payments identified in paragraph 4.2., Cybertel may, in its discretion
provide written notice to Core of such payment default, via facsimile
transmission, describing by due date and amount, each Installment Payment then
past due and remaining unpaid ("Default Notice"). In the event the
Installment Payments delineated in the Default Notice are not paid to Cybertel
within ten (10) calendar days of the confirmed transmission date of the
Default Notice, Cybertel may, in its discretion, immediately file the
Stipulation with the Court and apply to the Court ex parte, upon at least
twenty-four hours written notice, via confirmed facsimile transmission, as
provided in paragraph 12, below, to Xxxxx Xxxxx, Esq., and Xxxx X. Xxxxxx,
Esq., for an order setting aside the dismissal provided in paragraph 2., and
the immediate issuance and entry of a judgment in the form attached as Exhibit
A to the Stipulation. Core shall have and specifically reserves the right to
oppose any ex parte application by Cybertel made under this paragraph,
including, without limitation, the right to appear at any hearing on the
application and the right to introduce evidence in opposition to such
application both prior to and at the hearing. Any application of Cybertel
under this paragraph is specifically limited to a request that the Court issue
and enter judgment as against Core in an amount not to exceed $335,000.00,
less the cumulative amount of any Installment Payments, prepayments, or other
payments made through to the date of the application. Cybertel represents and
warrants to and covenants with Core that the accelerated remedy provided by
this paragraph is the sole and exclusive remedy of Cybertel as against Core
for any failure of Core to pay the payments set forth in paragraph 4.2, above.
5.3. Return of Stipulation. Cybertel irrevocably authorizes and
directs: (a) its attorneys to deliver the executed original of the Stipulation
to Xxxxx Xxxxx, counsel for Core, immediately upon full payment of the
Settlement Amount (whether by compliance with the payment schedules set forth
in Exhibit B and Exhibit C, or otherwise), and to not submit or otherwise file
the Stipulation with the San Diego Superior Court, or any other court; and (b)
Xxxxx Xxxxx, counsel for Core, to, upon receipt of the original Stipulation,
store or destroy the Stipulation in the discretion of Core.
5.4. Retention of Jurisdiction. The parties agree that the Superior
Court of California, County of San Diego, shall retain jurisdiction in this
matter for purposes of enforcing this paragraph 5., pursuant to the
Stipulation Reserving Jurisdiction set forth in paragraph 2.2, above.
6. Release. In consideration of the mutual waiver of costs and fees
referenced above, the payments made and/or required to be made hereunder, and
for other good and valuable consideration, as set forth herein, the
sufficiency of which is hereby acknowledged by both Cybertel and Defendants,
the parties hereto promise, agree, release and discharge as follows:
6.1. Releases.
6.1.1. General Release of Defendants. Except as to such rights
or claims as may be created or preserved by this Agreement, Cybertel, on its
own behalf and on behalf of each of its Related Parties, does hereby fully and
forever release, remise, acquit and discharge Defendants, and each of them,
and each of their respective Related Parties from any and all claims, demands,
damages, costs, attorney's fees, rights, and cause or causes of action, in any
jurisdiction, known or unknown, including, but not limited to, any and all
claims, demands, damages, costs, attorney's fees, rights, and cause or causes
of action heretofore or hereafter arising out of or directly or indirectly
related to: (i) the matters which are the subject of the Lawsuit and any right
of appeal thereto, including any facts, transactions and allegations contained
therein; (ii) the Reorganization Agreement, and/or any transactions made
pursuant thereto; and (iii) the Promissory Notes, or any of them, and/or any
default thereunder. The claims released under this paragraph 6.1.1., shall
include, but are not limited to any and all claims: (a) directly or indirectly
related to or arising out of any violation of the 1934 Act and/or any rules
and/or regulations promulgated thereunder, the 1933 Act and/or any rules
and/or regulations promulgated thereunder, and/or any comparable provision of
State or Federal law, whether by statute or by decision; and (b) for any
costs, attorney's fees, expert fees, administrative fees, or other damages in
any way related to the Reorganization Agreement, Promissory Notes, the Lawsuit
and/or the claims covered under subparagraph 6.1.1.(a), herein above.
6.1.2. General Release of Cybertel. Except as to such rights
or claims as may be created or preserved by this Agreement, Defendants, on
their own behalf and on behalf of their respective Related Parties do hereby
fully and forever release, remise, acquit and discharge Cybertel from any and
all claims, demands, damages, costs, attorney's fees, rights, and cause or
causes of action, in any jurisdiction, known or unknown, including, but not
limited to, any and all claims, demands, damages, costs, attorney's fees,
rights, and cause or causes of action arising out of or directly or indirectly
related to: (i) the matters which are the subject of the Lawsuit and any right
of appeal thereto, including any facts, transactions and allegations contained
therein; (ii) the Reorganization Agreement, and/or any transactions made
pursuant thereto; and (iii) the Promissory Notes, or any of them, and/or any
default thereunder. The claims released under this paragraph 6.1.1., shall
include, but are not limited to any and all any costs, attorney's fees, expert
fees, administrative fees, or other damages in any way related to the
Reorganization Agreement, Promissory Notes, or the Lawsuit.
6.2. Mutual Acknowledgment/Release Re: Equity Ownership.
6.2.1. Cybertel Acknowledgment/Release. Cybertel, on its own
behalf and on behalf of each of its Related Parties, does hereby fully and
irrevocably: (a) acknowledge and agree that neither Cybertel nor any of its
Related Parties own (equitably or otherwise) any membership interests and/or
other equity interest in Core (including, without limitation, any options,
warrants or other rights to acquire such interest in the future); and (b)
surrender, release, sell, assign, transfer and convey to Core any and all
right, title and interest of Cybertel or any of its Related Parties in and to
any membership interests or certificates of, or other equity interest in, Core
together with all rights to acquire such interest(s) at any time in the
future, including, without limitation, any options, warrants or other rights
of purchase and/or acquisition.
6.2.2. Acknowledgment/Release By Core Members. The Core
Members, on their own behalf and on behalf of their respective Related
Parties, do hereby fully and irrevocably: (a) acknowledge and agree that none
of the Core Members nor any of their respective Related Parties own any stock
and/or other equity interest in Cybertel (including, without limitation, any
options, warrants or other rights to acquire such interest in the future); and
(b) surrender, release, sell, assign, transfer and convey to Cybertel any and
all right, title and interest of the Core Members or any of their respective
Related Parties in and to any capital stock of, or other equity interest in,
Cybertel together with all rights to acquire such interest(s) at any time in
the future, including, without limitation, any options, warrants or other
rights of purchase and/or acquisition.
6.2.3. The above acknowledgments are not intended as an
admission of either the validity or invalidity of the Reorganization
Agreement, or an admission as to whether or not any interest in Core or
Cybertel was effectively transferred pursuant to the Reorganization Agreement,
which issues are disputed. It is, however, the intention of the parties that
by this Settlement Agreement and as described herein above, no such interest
in or to the equity of Core or Cybertel currently exists.
7. Waiver of Civil Code Section 1542 And Factual Assumptions.
7.1. Waiver. Limited to the scope of the matters released in
paragraph 6., above, and in addition thereto, Cybertel, on its own behalf and
on behalf of its Related Parties, and Defendants, on their own behalf and on
behalf of their respective Related Parties, each specifically waive the
benefits and provisions of Section 1542 of the Civil Code of the State of
California, and of any comparable provision of law whether by statute or
decision.
7.2. Section 1542 Provisions. California Civil Code Section 1542
provides as follows:
"A general release does not extend to claims which the 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."
7.3. Representations of the Parties.
7.3.1. Each party issuing a release under this Agreement: (a)
acknowledges that the facts upon which said party granted his/her/its release
hereunder may hereafter be found to be other than or different from the true
facts; (b) accepts and assumes the risk of such possible differences in the
facts; and (c) acknowledges said party's release shall nevertheless be and
remain effective, notwithstanding such difference in facts.
7.3.2. Each party issuing a release under this Agreement has
made such investigation of the facts pertaining to the settlement contemplated
by this Agreement, and of all other matters pertaining thereto, as said party
deems necessary and, in entering into this Agreement, assumes the risk of any
misrepresentation, concealment or mistake.
7.3.3. If any party issuing a release under this Agreement
should subsequently discover that any fact relied on by such party in entering
into this Agreement was untrue, or that any fact was concealed from such
party, or that such party's understanding of the facts or of the law was
incorrect, such party shall not be entitled to any relief in connection
therewith, including, without limitation upon the generality of the foregoing,
any alleged right or claim to set aside or rescind this Agreement. This
Agreement is intended to be and is final and binding between and among the
parties hereto.
7.3.4. Each of the parties executing this Agreement represents
and warrants to and covenants with the other parties hereto that said party
has the full and authorized authority of his or her respective corporation or
company to enter into this agreement on behalf of such corporation or company.
8. Cybertel SEC Filings.
8.1. Cybertel April 15, 2005 10-KSB Filing.
8.1.1. Core shall provide to Cybertel by 5:00 p.m. (P.D.T.),
April 13, 2005, all Core financial records for the period ending December 31,
2004, in Core's possession, custody or control and reasonably requested by the
accounting firm of Xxxxxx & Xxxxxx in connection with its current audit of
Cybertel as required for Cybertel's 10-KSB reporting for the period ending
December 31, 2004. As of the date this Agreement was executed by Cybertel,
Cybertel is not aware of any failure of Core to provide any records required
to be provided to Cybertel hereunder nor does Cybertel have any reason to
believe that any such records have been withheld by Core;
8.1.2. Cybertel acknowledges and affirms that Core requested
from Cybertel but was not provided with the form management letter identified
in paragraph 6 of the Tentative Settlement Agreement before 5:00 p.m., April
13, 2005;
8.1.3. Upon reasonable request, Core shall provide to Cybertel
a management representation letter for the period ending December 31, 2004,
executed by Core in form and content reasonable and customary for the purpose
of completing the above-referenced audit of Cybertel and acceptable to Core;
8.1.4. Upon reasonable request, Core shall provide to Cybertel
such additional financial and other records of Core for the period ending
December 31, 2004, in Core's possession, custody or control, as are required
by the Securities And Exchange Commission or necessary for Xxxxxx & Xxxxxx to
complete the above-referenced audit of Cybertel.
8.2. Submission of Disputes. A representation in writing and signed
under penalty of perjury under the laws of the State of California by
Cybertel's auditors, Xxxxxx & Xxxxxx, and directed to Core, that the
particular information or documentation being requested by Cybertel under
paragraphs 8.1 and 8.3, is necessary from Core in order to complete an SEC
report, as provided in this Agreement, shall establish the need for such
information, and the requirement of Core to produce such documentation or
information in accordance with paragraph 8.1. Notwithstanding the foregoing,
in the event of a good faith reason to withhold any such information and/or
documentation, Core may, in its discretion, apply to Judge Xxxxxxxx X. Xxxxxx
of the department of the Court in which the Litigation is currently pending,
or such other department in the event Judge Xxxxxx is not available, ex parte,
upon at least twenty-four hours written notice, via facsimile transmission,
for an order resolving such dispute. The parties agree that Judge Xxxxxx, or
any replacement judge, shall have authority to consider the issues involved
and resolve the dispute forthwith
8.3. Cybertel 10-Q Filing. Upon reasonable request and, then,
only to the extent required, Core shall provide to Cybertel such financial and
other records of Core for the period ending March 31, 2005 (including, to the
extent required, a management representation letter for said period, executed
by Core in form and content reasonable and customary for the purpose of
completing the below-referenced audit of Cybertel and acceptable to Core), in
Core's possession, custody or control, as are necessary for the accounting
firm of Xxxxxx & Xxxxxx to complete any audit of Cybertel required for
Cybertel's 10-Q reporting for the period ending June 30, 2005. In addition
and upon reasonable request, Core shall provide to Cybertel such additional
financial and other records of Core for the period ending March 31, 2005, in
Core's possession, custody or control, as are required by the Securities And
Exchange Commission or necessary for Xxxxxx & Xxxxxx to complete any audit of
Cybertel required for Cybertel's 10-Q reporting for the period ending June 30,
2005.
8.4. Outside Information. To the extent any financial information
required under paragraphs 8.1 and/or 8.3, above, is not within Core's
possession, custody or control, Core will use its best efforts to obtain such
information and transmit it to Cybertel as soon as possible.
8.5. Settlement Disclosure. Cybertel shall, no later than at the
time of its first 10-Q reporting for 2005, fully report and disclose to the
SEC in a public reporting Cybertel's complete surrender and release of any
right, title and interest in and to any membership interests or certificates
of, or other equity interest in, Core as more fully delineated in paragraph
6.3., above.
9. Indemnity. In addition to any other indemnity obligation contained
within this Agreement and not in lieu thereof, Cybertel and its Related
Parties each agree to indemnify, defend, protect and hold Defendants and their
respective Related Parties, and each of them, harmless from and against any
and all costs, liabilities, claims, losses, Proceedings, damages, causes of
action, and expenses, including without limitation attorneys' fees, as may in
any way result from or arise out of, directly or indirectly: (i) the
incorrectness of any representations and warranties made by Cybertel; (ii) any
prior statements, including press releases, by Cybertel and/or any of its
Related Parties (including, without limitation, Xxxxxxx Xxxxxxxxxxx and
Xxxxxxx Xxxxxxx), whether or not such statements are ultimately determined to
be violative of the 1934 Act and/or the 1933 Act and regardless of the source
of the information disseminated under the statements; and (iii) breach of any
of the duties or obligations of or restrictions on Cybertel as set forth in
this Agreement. This indemnity provision shall not apply to any
representations and/or warranties made by Cybertel that were based upon any
intentional misrepresentations, or intentionally false information, provided
to Cybertel by Core.
10. [RESERVED]
11. Warranty of Authority to Settle.
11.1. Cybertel's Warranty. Cybertel hereby represents and warrants
to and covenants with Defendants, and each of them, that, at the time of
signing this Agreement, Cybertel: (a) has the sole and absolute authority to
settle, dismiss, release and/or discharge all claims settled, dismissed,
released and/or discharged under this Agreement on behalf of Cybertel and
Cybertel's Related Parties, including, to the extent alleged, any claims
asserted on behalf of any class and/or members of the general public, and to
bind said parties to the terms of this Agreement; and (b) has not previously
assigned, transferred, or granted, or purported to assign, transfer or grant,
to any Person, any interest or representative status of Cybertel or any
interest of any of Cybertel's Related Parties in the claims, demands, rights,
and causes of action released and discharged under this Agreement.
11.2. Defendants' Warranty. Each of the Defendants, as to
himself/herself/itself, represents and warrants to and covenants with
Cybertel, that, at the time of signing this Agreement, said Defendant: (a) has
the sole and absolute authority to settle, dismiss, release and/or discharge
all claims settled, dismissed, released and/or discharged under this Agreement
on behalf of said Defendant and his/her/its Related Parties and to bind said
parties to the terms of this Agreement; and (b) said Defendant has not
previously assigned, transferred, or granted, or purported to assign, transfer
or grant, to any Person, any interest of said Defendant or any interest of any
of his/her/its Related Parties in the claims, demands, rights, and causes of
action released and discharged under this Agreement.
11.3. Agreement Construction. Each party hereto represents and
warrants to and covenants with the other that: (a) said party has read this
Agreement; (b) this Agreement, in its reduction to final written form, is a
result of extensive good faith negotiations between the parties by and through
their respective counsel; (c) the parties and said counsel have carefully
reviewed and examined this Agreement for execution by said parties, or any of
them; (d) any statute or rule of construction that ambiguities are to be
resolved against the drafting party shall not be employed in the
interpretation of this Agreement; and (e) this Agreement is enforceable
against each party in accordance with its terms.
12. Notices. Any notice, request, demand, instruction or other document
to be given hereunder or pursuant hereto (collectively "Notice") shall be in
writing and personally delivered or sent by certified mail, postage prepaid,
return receipt requested, or sent by Federal Express or other reputable
overnight carrier, priority overnight delivery, postage and delivery charges
prepaid, addressed to each addressee to whom a copy of such notice is to be
given at the address indicated below or such other address as is designated
pursuant to this paragraph. Notice shall be deemed to have been delivered
only upon receipt by the addressee or 72 hours after deposit in the United
States mail, as provided above, or 24 hours after deposit with Federal
Express, or other reputable overnight carrier, as provided above, addressed to
each addressee to whom a copy of such notice is to be given. Default Notice
may be provided as set forth in paragraph 5.2, above. Notice of any ex parte
application under paragraphs 5.2, or 8.2, above, may also be provided via
facsimile but, with respect to such notices under paragraph 5.2, will only be
deemed delivered upon confirmation of transmission by machine report and,
then, only if transmission is so confirmed to each fax number for Defendants
and for Xxxxx Xxxxx, Esq., and Xxxx X. Xxxxxx, Esq., set forth below. The
addresses, facsimile numbers and addressees for purposes of this paragraph may
be changed to any other address, facsimile numbers or addressee in the
continental United States by giving written notice of such change in the
manner provided herein for giving Notice. Unless and until such written
notice of change of address is delivered in the manner provided herein, the
last address and addressee stated by written notice, or provided herein, if no
written notice of change has been delivered, shall be deemed to continue in
effect for all purposes hereunder.
13. Governing Law/Venue. This Agreement will be construed in accordance
with, and governed by, the laws of the State of California as applied to
contracts that are executed and performed entirely in California. Venue shall
be, for all purposes, in San Diego, California. Except as otherwise expressly
required under this Agreement, a Proceeding to enforce or interpret the terms
of this Agreement and/or the obligations, duties or rights of the parties
contained herein shall be brought before and resolved in the appropriate
court, state or federal, of the State of California, County of San Diego, and
the parties hereby submit to the personal jurisdiction of said court for all
such purposes.
14. Attorneys' Fees. Should any Proceeding be commenced or threatened
between any of the parties hereto to enforce or interpret this Agreement or
concerning this Agreement or the subject matter hereof or the rights and
duties of the parties in relation hereto or thereto, the party(ies) prevailing
in such Proceeding (whether at trial or on appeal) shall be entitled, in
addition to such other relief as may be granted, to its costs and expenses of
participation in such Proceeding or threatened Proceeding, including, without
limitation, a reasonable sum as and for its attorney fees in such Proceeding,
which shall be determined by the Court, mediator, arbitrator, referee or other
trier of fact in such Proceeding or in a separate Proceeding brought for that
purpose. The "prevailing party" means the party determined by the Court,
mediator, arbitrator, referee or other trier of fact in such Proceeding to
have most nearly prevailed, even if such party did not prevail in all matters.
15. Opportunity to Consult Counsel. Each party has read this Agreement
and understands the contents of said document. Each party hereto represents
and acknowledges that he/she/it has had a sufficient opportunity to consult
independent legal counsel and independent accountants concerning the
provisions of this Agreement, including the advisability of making the
settlement provided for herein and the meaning of California Civil Code
Section 1542, and each has entered into this Agreement intending to be legally
bound. The parties hereto are relying solely upon the advice of their own
independent counsel and accountants and are not relying in any manner or way
on the advice or counsel of the other party's counsel, accountants, or other
advisors. No party (nor any officer, agent, employee, representative, nor
attorney of or for any party) has made any statement or representation to any
other party regarding any fact relied upon in entering into this Agreement,
and no party is relying upon any statement, representation or promise of any
other party (or of any officer, agent, employee, representative, or attorney
for the other party), in executing this Agreement, except as expressly stated
in this Agreement.
16. Entire Agreement. This Agreement constitutes the entire agreement
between the parties pertaining to the subject matter contained herein and
supersedes all prior and contemporaneous agreements, representations, and
understandings of the parties. No supplement, modification, or amendment of
this Agreement will be binding unless executed in writing by all the parties.
No waiver of any of the provisions of this Agreement will constitute a waiver
of any other provision, whether or not similar, nor will any waiver constitute
a continuing waiver. No waiver will be binding unless executed in writing by
the party making the waiver.
17. Survival. Each of the representations and warranties made by the
parties herein or in any documents delivered or otherwise made by the parties
shall be true and correct on and as of the Effective Date as though made at
that time without the necessity of a separate written certificate regarding
same. All of the covenants, representations and warranties of each party
contained herein shall survive payment of the Settlement Amount and/or any
other time period set forth herein.
18. Construction. Whenever the context of this Agreement so requires,
the singular number shall include the plural, and the masculine, feminine and
neuter genders shall include the other or others. The headings of this
Agreement are for purposes of reference and convenience only and shall not
limit or otherwise affect the meaning hereof.
19. Successors. This Agreement shall be binding upon, enforceable by and
shall inure to the benefit of the successors-in-interest of the parties
hereto.
20. Further Action. The parties each agree to execute such further
documents and to take such further action as may be necessary or desirable to
effectuate the intents and purposes of this Agreement.
21. Severability. Should any court or agency of competent jurisdiction
or arbitrator provided for herein determine that any term, provision or
portion of this Agreement is invalid, illegal, void or unenforceable, such
term, provision or portion shall be deemed redrafted to the minimum extent
necessary to effect the intentions of the parties hereto. To the extent such
redrafting is impossible, the affected term, provision or portion shall be
deleted from this Agreement and the Agreement shall be read as though such
term, provision and/or portion of the Agreement was never included and the
remainder of this Agreement, excluding such term, provision, or portion shall
continue in full force and effect. Any determination, redrafting or deletion
called for hereunder shall not affect the validity or enforceability of any
other term, provision, or portion of this Agreement, and the rest of the
Agreement shall remain in full force and effect.
22. Counterparts/Facsimile Signatures. This Agreement (as well as any
amendments hereto) may be executed in any number of counterparts, each of
which when executed shall be an original, and all of which together shall
constitute one and the same Agreement. No counterparts shall be effective
until all parties hereto have executed a counterpart hereof. Facsimile
signatures received by the other parties hereto shall be sufficient evidence
of the execution hereof by the applicable signatory.
23. General Definitions.
23.1. "Controlled Entity" or "Controlled Entities" shall mean and
refer to, with respect to any Person or group of Persons, any corporation,
partnership, limited liability company, limited liability partnership, or
other entity in which more than fifty percent (50%) of the outstanding capital
stock, partnership interest, membership interest or other measure of equity
ownership in such entity is owned or controlled, directly or indirectly, by
such Person or Persons.
23.2. "Person" or "Persons" shall refer to natural persons,
corporations, partnerships, joint ventures, co-venturers, unincorporated
associations, limited partnerships, limited liability companies, limited
liability partnerships, and/or any other business entity.
23.3. "Proceeding" shall mean any action, suit, litigation,
arbitration (including one initiated hereunder), mediation, prosecution,
contest, hearing, inquiry, audit, examination or investigation (including any
civil, administrative, or appellate proceeding) commenced, brought, conducted
or heard by or before, or otherwise involving, any court, administrative
agency or other governmental body or any mediator, arbitrator or
mediation/arbitration panel, or other alternative dispute resolution forum.
23.4. "Related Party" or "Related Parties" shall mean and refer to,
with respect to any Person or group of Persons, the present and former agents,
spouses, domestic partners, servants, officers, directors, employees,
shareholders, principals, Controlled Entities, predecessors-in-interest, alter
egos, partners, parents, subsidiaries, insurers, re-insurers, sureties,
attorneys, heirs, executors, administrators, trusts, trustees, beneficiaries,
successors and assigns of such Person or Persons.
(REMAINDER OF PAGE INTENTIONALLY BLANK - SIGNATURES ON NEXT PAGE)
PLEASE READ CAREFULLY. THIS AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND
UNKNOWN CLAIMS.
CYBERTEL:
Dated: April 26, 2005 CYBERTEL CAPITAL CORPORATION,
a Nevada corporation
By: /s/ Xxxxxxx Xxxxxxxxxxx
Xxxxxxx Xxxxxxxxxxx,
Chief Executive Officer
Address: 0000 Xxxxxx Xx.
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
With Copy To: J. Xxxx Xxxxx, Esq.,
0000 Xxxxxxxx Xxxx Xxx., Xxx. 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Fax No.: (000) 000-0000
DEFENDANTS:
Dated: April 26, 2005 CORE ENERGY LLC,
a Nevada limited liability company
By: /s/ Xxx Xxxxxx
Xxx Xxxxxx,
Managing Member
Address: 0000 00xx Xx., Xxx. 0
Xxxxxxxxxxx, Xxxxxxxxxx 00000
Fax No.: (000) 000-0000 and
(000)000-0000
With Copy To: XXXXXXXX XXXXXX XXXXXXX
& HAMPTON LLP
000 Xxxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxx, Esq.
Fax No.: (000) 000-0000
Xxxxx Xxxxx, Esq.
Fax No.: (000) 000-0000
(SIGNATURES CONTINUED ON NEXT PAGE)
Dated: April 26, 2005 /s/ Xxx Xxxxxx
Xxx Xxxxxx
Address: 0000 00xx Xx., Xxx. 0
Xxxxxxxxxxx, Xxxxxxxxxx 00000
Fax No.: (000) 000-0000 and
(000)000-0000
With Copy To: XXXXXXXXX, XXXXXXX & FRENCH
000 Xxxxxxxxx Xx., 0xx Xxxxx
Xx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxx X. Xxxxxx, Esq.
Fax No. (000) 000-0000
Dated: April 26, 0000 /x/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx
Address: 16000 Clarisse
Xxxxxxxxxxx, Xxxxxxxxxx 00000
Fax No.: (000) 000-0000 and
(000)000-0000
With Copy To: XXXXXXXXX, XXXXXXX & FRENCH
000 Xxxxxxxxx Xx., 0xx Xxxxx
Xx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxx X. Xxxxxx, Esq.
Fax No. (000) 000-0000
(REMAINDER OF PAGE LEFT BLANK - SIGNATURES CONTINUED ON NEXT PAGE)
APPROVED AS TO FORM AND CONTENT:
J. XXXX XXXXX LAW OFFICES
By: /s/ J. Xxxx Xxxxx
J. Xxxx Xxxxx, Esq.,
Attorney for Plaintiff,
CYBERTEL CAPITAL CORPORATION
XXXXXXXXX, XXXXXXX & FRENCH
By: /s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx, Esq.
Attorneys for Defendants,
XXX XXXXXX and XXXXXX XXXXXX
XXXXXXXX XXXXXX XXXXXXX & XXXXXXX LLP
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, Esq.,
Xxxxx Xxxxx, Esq.
Attorneys for Defendant,
CORE ENERGY LLC
EXHIBIT A
J. Xxxx Xxxxx, Esq.
XXXX XXXXX/ LAW OFFICES
0000 Xxxxxxxx Xxxx Xxx., Xxx. 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Attorneys for Plaintiff,
CYBERTEL CAPITAL CORPORATION
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN DIEGO, CENTRAL DIVISION
CYBERTEL CAPITAL ) Case No. GIC 844651
CORPORATION, a Nevada corporation )
) 1)STIPULATION FOR ORDER
Plaintiffs, ) APPROVING SETTLEMENT AND
) DISMISSAL
v. )
) 2) [PROPOSED] ORDER THEREON
CORE ENERGY LLC, a Nevada Limited )
Liability Company; XXXXXX XXXXXX, )
an individual; XXX X. XXXXXX, an )
individual; DOES 1 through 10, )
inclusive, )
) Complaint filed: March 22, 2005
Defendants, )
)
STIPULATION
-----------
IT IS HEREBY STIPULATED AND AGREED by and between plaintiff CYBERTEL
CAPITAL CORPORATION, Nevada corporation (the "Plaintiff") and defendants CORE
ENERGY LLC, a Nevada limited liability company ("Core"), XXX XXXXXX
("Xxxxxx"), and XXXXXX XXXXXX ("Xxxxxx") (collectively, the "Defendants"), and
each of them, by and through their respective counsel, that, all claims
presented in Plaintiff's Complaint have been and are fully settled and
compromised pursuant to the terms of that certain written Agreement of Full
and Final Settlement, Release And Discharge of All Claims by and between
Plaintiff, on the one hand, and Defendants, and each of them, on the other
hand, dated April 26, 2005 with an intended effective date of March 31, 2005
(including all exhibits thereto) (collectively, the "Settlement Agreement"), a
true and correct copy of which is attached hereto as Exhibit A to this
Stipulation;
IT IS FURTHER STIPULATED AND AGREED by and between Plaintiff and
Defendants that Plaintiff shall dismiss the Entire Action, without prejudice,
by delivery of the executed Request For Dismissal (Entire Action - Without
Prejudice) attached as Exhibit A to the Settlement Agreement in the manner
provided by Settlement Agreement;
IT IS SO STIPULATED.
Dated: March 31, 2005
SHEPPARD, MULLIN, XXXXXXX & HAMPTON LLP
By /s/ Xxxxxx X. Xxxxxx
--------------------------------------
XXXXXX X. XXXXXX, ESQ.
XXXXX XXXXX, ESQ.
Attorneys for Defendant
CORE ENERGY LLC
Dated: Xxxxx 00, 0000
XXXXXXXXX, XXXXXXX & FRENCH APC
By /s/ Xxxx X. Xxxxxx
---------------------------------------
XXXX X. XXXXXX, ESQ.
Attorneys for Defendants
XXX XXXXXX
and XXXXXX XXXXXX
Dated: March 31, 2005
XXXX XXXXX LAW OFFICES
By /s/ J. Xxxx Xxxxx
---------------------------------------
J. XXXX XXXXX, ESQ.
Attorneys for Plaintiff
CYBERTEL CAPITAL CORPORATION
ORDER
-----
The Court having read and considered the Stipulation and there being no
opposition to the settlement and compromise proposed thereunder and on proof
made to the satisfaction of this Court and GOOD CAUSE APPEARING THEREFORE:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the settlement and
compromise of the above-entitled action pursuant to the terms of the
Settlement Agreement, including the stipulation for limited reservation of
jurisdiction by this Court as contained in paragraph 2.2 thereof, is approved;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the above-entitled Court
shall retain jurisdiction over the parties hereto to enforce the terms of the
Settlement Agreement to the extent required under paragraph 2.2 thereof.
Dated: March 31, 2005
/s/ Xxxxxxxx X. Xxxxxx
-------------------------------------------
XXX. XXXXXXXX X. XXXXXX
JUDGE OF THE SUPERIOR COURT
EXHIBIT B
Payment No. Amount Due Date
1 $950 July 23, 2005
2 $950 August 23, 2005
3 $950 September 23, 2005
4 $950 October 23, 2005
5 $950 November 23, 2005
6 $950 December 23, 2005
7 $950 January 23, 2006
8 $950 February 23, 2006
9 $950 March 23, 2006
10 $950 April 23, 2006
11 $950 May 23, 2006
12 $950 June 23, 2006
13 $950 July 23, 2006
14 $950 August 23, 2006
15 $950 September 23, 2006
16 $950 October 23, 2006
17 $950 November 23, 2006
18 $950 December 23, 2006
EXHIBIT C
Payment No. Payment Due Date
1 $4,023.60 January 23, 2007
2 $4,023.60 February 23, 2007
3 $4,023.60 March 23, 2007
4 $4,023.60 April 23, 2007
5 $4,023.60 May 23, 2007
6 $4,023.60 June 23, 2007
7 $4,023.60 July 23, 2007
8 $4,023.60 August 23, 2007
9 $4,023.60 September 23, 2007
10 $4,023.60 October 23, 2007
11 $4,023.60 November 23, 2007
12 $4,023.60 December 23, 2007
13 $4,023.60 January 23, 2008
14 $4,023.60 February 23, 2008
15 $4,023.60 March 23, 2008
16 $4,023.60 April 23, 2008
17 $4,023.60 May 23, 2008
18 $4,023.60 June 23, 2008
19 $4,023.60 July 23, 2008
20 $4,023.60 August 23, 2008
21 $4,023.60 September 23, 2008
22 $4,023.60 October 23, 2008
23 $4,023.60 November 23, 2008
24 $4,023.60 December 23, 2008
25 $4,023.60 January 23, 2009
26 $4,023.60 February 23, 2009
27 $4,023.60 March 23, 2009
28 $4,023.60 April 23, 2009
29 $4,023.60 May 23, 2009
30 $4,023.60 June 23, 2009
31 $4,023.60 July 23, 2009
32 $4,023.60 August 23, 2009
33 $4,023.60 September 23, 2009
34 $4,023.60 October 23, 2009
35 $4,023.60 November 23, 2009
36 $4,023.60 December 23, 2009
37 $4,023.60 January 23, 2010
38 $4,023.60 February 23, 2010
39 $4,023.60 March 23, 2010
40 $4,023.60 April 23, 2010
41 $4,023.60 May 23, 2010
42 $4,023.60 June 23, 2010
43 $4,023.60 July 23, 2010
44 $4,023.60 August 23, 2010
45 $4,023.60 September 23, 2010
46 $4,023.60 October 23, 2010
47 $4,023.60 November 23, 2010
48 $4,023.60 December 23, 2010
49 $4,023.60 January 23, 2011
50 $4,023.60 February 23, 2011
51 $4,023.60 March 23, 2011
52 $4,023.60 April 23, 2011
53 $4,023.60 May 23, 2011
54 $4,023.82 June 23, 2011
