EXHIBIT 99.3
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This SETTLEMENT AGREEMENT (hereinafter referred to as "Agreement") is
made as of January 26, 2005, by and between Q-MATRIX, INC. ("QMI"), a Delaware
corporation, located at 000 Xxxxxxxx Xxxx., Xxxxx 000, Xxxxx Xxxx, XX 00000,
and COPIER WAREHOUSE ("CW"), a Minnesota corporation, located at 00000
Xxxxxxxxx Xxxxx, Xxxxxxxxxx, XX 00000. Defendant and Plaintiff may also be
hereinafter collectively referred to as ("the parties").
RECITALS
In or about February 2004, CW prepared a complaint as against Q-Matrix,
Inc., Xxxxxx Management Services, Inc., Danka, Inc. ("Danka"), and US Bank, NA
in the Fourth Judicial District, in and for the County of Hennepin, State of
Minnesota, entitled "Copier Warehouse, Inc. v. Q-Matrix, et al." The
complaint alleges that CW is owed the sum of $62,000 for services rendered,
including interest, costs and attorney's fees. CW's lawsuit will be
hereinafter referred to as the "Action." All named defendants were served
except QMI.
In or about December 2004, a global "Settlement Agreement and Partial
Release" was reached between CW and all named defendants whereby, among other
things, CW received payment from Danka in the amount of $18,750.00, as payment
for a debt which Danka owed to QMI. Thus, the balance of $43,250.00 remains
to be paid from QMI to CW.
The parties hereto desire to settle and terminate the Action as against
QMI hereunder and forever discharge all claims, demands, liabilities, and
causes of action against one another based upon or arising out of the subject
matter of the Action referred to above, as well as fully resolve any and all
other claims which may exist between them whether known or unknown.
NOW, THEREFORE, for good and valuable consideration, including the mutual
covenants herein contained, the parties hereto agreed as follows:
TERMS
1. Settlement of the Action. For and in consideration of settlement
between the parties, QMI hereby agrees to make payment to CW in the amount of
Forty-Three Thousand Two Hundred and Fifty Dollars ($43,250.00). The parties
hereto hereby release and forever discharge each other, and the other's
predecessors, successors, assigns, affiliates, parent corporations, subsidiary
corporations, officers, directors, agents, servants, representatives,
employees, heirs, and assigns, and any other person, firm or corporation now,
previously, or hereafter affiliated in any manner with any of the parties
hereto, of and from any and all claims, demands, assertions of liability,
causes of action, obligations, damages, claims for indemnity of any kind,
nature or character whatsoever, except for the obligations set forth within
this Agreement, whether or not now known, suspected, or claimed, which any may
have against the other, including (1) those arising by reason of any mater,
cause, or event arising directly or indirectly out of the facts and
circumstances of the Action (complaint prepared by CW, as against Q Matrix,
Inc., et al., and (2) those arising out of or in any way connected with any
loss, damage or injury whatsoever of whatever kind or nature, whether known or
unknown, suspected or unsuspected, resulting from any act or omission by, or
on the part of, any party, committed or omitted, prior to the date that this
Agreement is executed.
The parties hereby, on behalf of themselves and the entities on whose
behalf they have signed, represent and warrant that the undersigned have the
authority and the capacity to make this Agreement and to carry out the terms
hereof.
In connection with such waivers and relinquishment, the parties hereto
acknowledge that they are aware that they or their attorneys may hereafter
discover claims or facts in addition to or different from those which they now
know or believe to exist with respect to the subject matter of this Agreement,
but that it is their intention hereby to fully, finally and forever to settle
and release all of the disputes and differences known or unknown, suspected or
unsuspected, which do now exist, may exist in the future, or heretofore have
existed arising out of or in connection with the released matters. In
furtherance of such intention, the release hereby given shall be and remain in
effect as a full and complete release notwithstanding the discovery or
existence of any such additional or different claims or facts arising out of
or in connection with the released matters.
2. Payment Terms. The Forty-Three Thousand Two Hundred Fifty Dollar
($43,250.00) payable by QMI to CW will be made as follows:
a. Q-Matrix will make a lump sum payment of $5,000 within 10 days
of execution of this Agreement, thus, $43,250 - $5,000 =
$38,250.
b. The remaining balance of $38,250 will be paid off in monthly
installment payments within one year. Thus, $38,250 / 12
months = $3,187.50 payments to be made by the 15th of each
month beginning February 2005 through February 2006.
c. All payments from QMI to CW will be made by way of company
check made payable to "Copier Warehouse, Inc.," and sent
by U.S. Mail to:
Mr. Xxxxx Xxxxxxxx
Attorney at Law
0000 000xx Xxxxxx Xxxx
Xxxxx Xxxxxx, XX 00000
and placed in the U.S. Mail by the 15th of each month.
3. Dismissal of Action. After receipt by CW of all payments specified
in paragraph 2 hereinabove, CW shall authorize, direct, and cause its
respective attorney of record to take all necessary actions to file a RULE 41
dismissal, with prejudice, and to provide QMI a copy of said dismissal.
4. No Admission of Liability. All parties represent and acknowledge
that they have entered into this Agreement solely for the purpose of
preventing further involvement in protracted and costly litigation based upon
the disputed claims in the Action and issues surrounding settlement of the
Action. Neither the settlement of the Action nor the settlement of issues
pertaining to the Action, nor anything contained herein, shall be construed to
be at any time or any place an admission on the part of any party hereto of
any of the claims in the Action or referred to herein.
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5. Persons/Entities Bound by Agreement. This Agreement shall be binding
upon and for the benefit of the parties hereto and their respective
successors, subsidiaries, division, affiliates, representative, assigns,
officers, directors, employees and beneficiaries, wherever the context
requires or admits.
6. Advice of Counsel. The parties hereto expressly state that they have
consulted with their respective attorneys of record concerning this Agreement,
and have been fully advised by such attorneys with respect to their rights and
obligations hereunder.
7. No Oral Modification of This Agreement. This Agreement constitutes
the entire Agreement between the parties, and it is expressly understood and
agreed that this Agreement may not be altered, amended, modified, or otherwise
changed in any respect or particular whatsoever, except by a writing duly
executed by authorized representative of all of the parties hereto, and that
no extrinsic evidence whatsoever may be introduced in any judicial or
arbitration proceeding.
8. No Claim of Oral Modification of Agreement. The parties hereto
acknowledge and agree that they will make no claim at any time or place that
this Agreement has been orally altered or modified in any respect whatsoever
and that they will not hereafter claim that this Agreement has been altered,
modified, or otherwise changed by oral communication of any kind or character
whatsoever.
9. Each Party Responsible for Their Own Costs. Each party to this
Agreement shall be responsible for the payment of its own costs, attorney's
fees and all other expenses it has incurred in or arising in any way out of
the Action.
10. Attorneys' Fees for Prevailing Party in Action to Enforce/Interpret
Agreement. If any legal action, arbitration, or other proceeding is brought
for the enforcement of this Agreement, or because of an alleged dispute,
default, or misrepresentation in connection with any of the provisions of this
Agreement, the successful or prevailing party or parties will be entitled to
recover reasonable attorney's fees and other costs incurred in that action or
proceeding in addition to any other relief to which it or they may be
entitled.
11. Venue for Enforcement Action. If any legal action is brought for
the enforcement of this Agreement, IT IS STIPULATED AND AGREED by the parties
hereto that the venue for any such action shall be in Hennepin, State of
Minnesota.
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12. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original and shall be deemed duly executed upon
the signing of the counterparts by the parties hereto. The parties agree that
facsimile signatures hereto shall have the same force and effect as original
signatures.
Copier Warehouse, Inc.
Dated: January 26, 2005 By: /s/ Xxxxx X. Xxxxxxxx
Print Name: Xxxxx X. Xxxxxxxx
Title: Attorney and Authorized Agent
Q-Matrix, Inc.
Dated: February 7, 2005 By: /s/ Xxxxx Xxxxxxx
Print Name: Xxxxx Xxxxxxx
Title: Chief Operations Officer
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