Exhibit 10.48
SETTLEMENT AGREEMENT
THIS AGREEMENT is made and entered into as of the 18th day of June,
2001, by and between MICROSOFT CORPORATION ("Microsoft"), a Washington
Corporation, located at Xxx Xxxxxxxxx Xxx, Xxxxxxx, Xxxxxxxxxx 00000, and
WAREFORCE INCORPORATED, a California corporation, located at 0000 Xxxxxxxxx
Xxx., Xxxxx 000, Xx Xxxxxxx, Xxxxxxxxxx 00000 ("Wareforce").
RECITALS
WHEREAS, Microsoft, through its wholly owned subsidiary, MSLI, LLC, and
Wareforce entered into a Microsoft Large Account Reseller Agreement ("LAR
Agreement"), dated January 1, 2000, a copy of which is hereto attached as
Exhibit "A," for the purpose of appointing Wareforce as a non-exclusive Large
Account Reseller with the ability to collect orders for License Confirmations
and related payments for Select Software Products from Volume Licensing
Customers that designated Wareforce in their Enrollment Agreement as their Large
Account Reseller;
WHEREAS, in March 2000, Wareforce became delinquent in its payment to
Microsoft for Select and Enterprise Agreement licenses;
WHEREAS, in June 2000, Microsoft terminated the LAR Agreement with
Wareforce after efforts to reach a mutually agreeable solution failed;
WHEREAS, there is a balance owed to Microsoft from Wareforce in the sum
of $5,832,094.27 as of the date of this Agreement (See Exhibit "B" for Summary
of Outstanding Invoices);
WHEREAS, Microsoft fulfilled its obligation as provided for under the
LAR Agreement; and
WHEREAS, the Parties wish to resolve their differences amicably;
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties agree as follows:
AGREEMENT
1. Wareforce shall pay Microsoft the sum of $5,832,094.27, plus
interest as set forth in the Promissory Note signed concurrently
herewith and incorporated fully herein ("Promissory Note").
2. Concurrently with this Agreement, Wareforce shall execute a
Promissory Note in favor of Microsoft.
3. Wareforce shall provide and disclose to Microsoft on quarterly basis
any and all written financial information necessary for Microsoft to
monitor and ensure compliance with this Agreement,
including but not limited to income statements, balance sheets,
statements of cash flow, and cash flow projections.
4. Upon full and complete performance of all of Wareforce's obligations
under this Agreement and the Promissory Note, Microsoft shall hereby
forever and fully relieve, release, discharge, and withdraw with
prejudice all other claims, debts, liabilities, demands,
obligations, promises, acts, agreements, costs, and expenses of
whatever kind or nature, whether legal or equitable, known or
unknown, suspected or unsuspected, contingent or fixed, based upon,
arising out of, pertaining to, or in connection with any matter
related to the LAR Agreement, of any kind or type, that it holds or
may hold against Wareforce, its successors, assigns, past and
present attorneys, accountants, representatives, affiliates,
divisions, parents, partners, officers, directors, employees, and
stockholders, jointly and severally, from the beginning of time to
and including the date of this Agreement.
5. Wareforce shall and does, as of the date of this Agreement, hereby
forever and fully relieve, release, discharge, and withdraw with
prejudice all claims, debts, liabilities, demands, obligations,
promises, acts, agreements, costs, and expenses of whatever kind or
nature, whether legal or equitable, known or unknown, suspected or
unsuspected, contingent or fixed, based upon, arising out of,
pertaining to, or in connection with any matter of any kind or type,
that it holds or may hold against Microsoft, its successors,
assigns, past and present attorneys, accountants, representatives,
affiliates, divisions, subsidiaries, partners, officers, directors,
employees, and stockholders, jointly and severally, from the
beginning of time to and including the date of this Agreement.
6. The Parties hereto, and each of them, represent, warrant, and agree
that in executing this Agreement they do so with full knowledge of
any and all rights which they have reason of the matters set forth
herein, and that they have received independent legal advice from
their respective attorneys with regard to the facts involved in the
controversies herein compromised.
7. The Parties hereto, and each of them, represent and warrant that
there has been no assignment or any transfer of any interest in any
claim which the parties hereto, or any of them, have or claim to
have against the other parties hereto.
8. This Agreement and the Promissory Note contain the entire
understanding between the parties. There are no representations or
promises other than those expressly set forth therein. The parties
acknowledge they are relying fully upon the contents of this
Agreement and the Promissory Note, and not relying upon any other
promises, representations, or warranties, expressed or implied,
concerning the subject matter hereof to induce them to execute this
Agreement
9. Every provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal, invalid, or legally
unenforceable for any reason, such illegality, invalidity, and/or
issue of enforceability shall not affect the validity, legality, or
enforceability of the remaining terms and provisions of this
Agreement.
10. No modification or amendment to this Agreement shall be valid or
binding unless such modification and/or amendment is set forth in
writing and signed by all of the parties to this Agreement. The
parties agree to execute all such further and additional documents
consistent with this Agreement as shall be reasonably necessary to
carry out the provisions of this Agreement.
11. Each person who executes this Agreement represents and warrants that
he or she has the authority of said entity to do so, and agrees to
indemnify and hold harmless each party from any claim that such
authority did not exist.
12. This Agreement shall be binding on and inure to the benefit of the
successors and assigns of each of the parties hereto.
13. This Agreement may be executed in any number of counterparts, each
of which shall be an original, but all of which shall constitute one
and the same instrument.
14. This Agreement between the parties shall be governed by the law of
the State of Washington, and Wareforce consents to the exclusive
jurisdiction of the courts in the State of Washington, County of
King.
15. Failure of Microsoft to invoke its remedy as provided for under this
Agreement shall not be deemed or construed as a waiver of its right
to exercise the same in the event of any subsequent default.
DATED this 18th day of June, 2001.
MICROSOFT CORPORATION WAREFORCE INCORPORATED
By: ___________________________ By: /s/ Xxx Xxxxxx
___________________________________
NAME: _________________________ NAME: Xxx Xxxxxx
_________________________________
Its ___________________________ Its: CFO
