SETTLEMENT AGREEMENT
This Settlement Agreement (the "Agreement"), entered into this
23rd day of February 2005, is by and between Caneum, Inc., a Nevada
corporation (hereinafter the "Company"), and Xxxx Chess Xxxxx, an
individual (hereinafter the "Consultant").
RECITALS:
WHEREAS, on or about October 28, 2004, the Company granted to the
Consultant options to purchase 150,000 shares of common stock of the
Company, exercisable at $0.75 per share and subject to certain vesting
requirements;
WHEREAS, these options were granted for consulting services
provided by the Consultant prior to the date of the grant;
WHEREAS, the options were granted pursuant to the Company's Stock
Option Stock Issuance Plan;
WHEREAS, 37,500 of the options granted were granted in excess of
the number of shares authorized under the plan which required that the
options would lapse if the plan were not amended to increase the
number of shares authorized to include the shares underlying the
options granted to Xx. Xxxxx;
WHEREAS, that Company was unable to amend the plan within such
period and the 37,500 options lapsed;
WHEREAS, the Company wishes to grant to the Consultant warrants
to purchase shares of the Company's common stock at $0.75 per share,
in part to replace the options which lapsed and to reward the
Consultant for additional services performed subsequent to the
original grant of options.
NOW, THEREFORE, in consideration of the terms and conditions of
this Agreement, the parties hereto agree as follows:
1. Issuance of Warrants. The Company shall, and hereby does,
issue to the Consultant 50,000 warrants to purchase shares of the
Company's common stock as provided in the Warrant Certificate attached
hereto as Exhibit A and incorporated herein. Immediately upon
execution of this Agreement by the Consultant, the Company shall
deliver the warrant certificate to the Consultant.
2. Release of Claims. In connection with the lapsing of the
37,500 options granted to the Consultant on or about October 28, 2004,
the Consultant hereby releases, forgives, and waives any cause of
action against the Company, its officers, or directors, which the
Consultant may have in connection with the lapse of such options.
Without limiting the generality of the
foregoing, the Consultant expressly waives all rights under Section
1542 of the Civil Code of California, which states:
A general release does not extend to claims which the
creditor does not know of 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.
3. Vesting of Remaining Options. Consultants hereby
acknowledges and agrees that the lapsed options shall be treated as
and were vested options and that the remaining options shall vest in
accordance with the provisions of the original grant of options.
4. Representations and Warranties of the Consultant. The
Consultant represents and warrants to the Company as set forth below.
These representations and warranties are made as an inducement for the
Company to enter into this Agreement and, but for the making of such
representations and warranties and their accuracy, the Company would
not be a party hereto.
a. Restricted Securities. The Consultant understands that
the warrants to be issued to him will not have been registered
pursuant to the Securities Act of 1933, or any state securities act,
and thus will be restricted securities as defined in Rule 144
promulgated by the Securities and Exchange Commission (the "SEC").
b. Accredited Investor. The Consultant is an accredited
investor as defined in Rule 501 of Regulation D.
c. Non-distributive Intent. The Consultant acknowledges
that the warrants are acquired for his own account and not with the
present view towards the distribution thereof and he will not dispose
of such shares except (i) pursuant to an effective registration
statement under the Securities Act, or (ii) in any other transaction
which, in the opinion of counsel acceptable to the issuer, is exempt
from registration under the Securities Act, or the rules and
regulations of the SEC thereunder, and that an appropriate legend will
be placed upon each of the certificates representing the warrants.
d. Evidence of Compliance with Private Offering Exemption.
The Consultant has such knowledge and experience in business and
financial matters that he is capable of evaluating the risks of the
prospective investment, and that the financial capacity of the
Consultant is of such proportion that the total cost of such person's
commitment in the warrants would not be material when compared with
its total financial capacity.
e. Access to Information. The Consultant has received and
read and is familiar with information concerning the Company publicly
available on the SEC website, and confirms that all documents,
records, and books pertaining to this proposed investment have been
made available to him.
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f. Opportunity to Ask Questions. The Consultant has had
the opportunity to question and receive answers from representatives
of the Company concerning the terms and conditions of the proposed
investment and the business of the Company. In addition, the
Consultant has received all requested additional information and
documents.
g. Limitations on Transfer of Shares. The Consultant
acknowledges that he is aware that there are substantial restrictions
on the transferability of the warrants. Since the warrants will not
be registered under the Securities Act or any applicable state
securities laws, the warrants may not be, and the Consultant agrees
that they shall not be, transferred unless the warrants are registered
under the Securities Act and state securities laws or unless such sale
is exempt from such registration under the Securities Act and any
other applicable state securities laws or regulations.
4. Miscellaneous Provisions
a. Default Costs. Should any party to this Agreement
default in any of the covenants, conditions, or promises contained
herein, the defaulting party shall pay all costs and expenses,
including a reasonable attorney's fee, which may arise or accrue from
enforcing this Agreement, or in pursuing any remedy provided hereunder
or by the statutes of the State of California.
b. Rights Are Cumulative. The rights and remedies granted
to the parties hereunder shall be in addition to and cumulative of any
other rights or remedies either may have under any document or
documents executed in connection herewith or available under
applicable law. No delay or failure on the part of a party in the
exercise of any power or right shall operate as a waiver thereof nor
as an acquiescence in any default nor shall any single or partial
exercise of any power or right preclude any other or further exercise
thereof or the exercise of any other power or right.
c. Waiver and Amendment. Neither this Agreement nor any
provision hereof may be changed, waived, terminated or discharged
orally, but only by an instrument in writing signed by the party
against whom enforcement of the change, waiver, termination or
discharge is sought.
d. Notices. All communications provided for herein shall
be in writing and shall be deemed to be given or made on (a) the date
of delivery, if delivered in person, by nationally recognized
overnight delivery service, or by facsimile, or (b) three days after
mailing if mailed from within the continental United States by
registered or certified mail, return receipt requested, to the party
entitled to receive the same.
e. Governing Law. This Agreement and the rights and duties
of the parties hereto shall be construed and determined in accordance
with the laws of the State of California, and any and all actions to
enforce the provisions of this Agreement, shall be brought in a court
of competent jurisdiction in Orange County, State of California and in
no other place.
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f. Successors and Assigns. This Agreement shall be binding
upon the parties and their successors and assigns and shall inure to
the benefit of the other parties and successors and assigns.
g. Counterparts. This Agreement may be executed in any
number of counterparts and all such counterparts taken together shall
be deemed to constitute one instrument.
h. Entire Agreement. This Agreement constitutes the entire
understanding between the parties hereto with respect to the subject
matter hereof and supersedes all negotiations, representations, prior
discussions, and preliminary agreements between the parties hereto
relating to the subject matter of this Agreement.
i. Survival of Covenants, Etc. All covenants,
representations and warranties made herein shall survive the making of
this Agreement and shall continue in full force and effect until the
obligations of this Agreement have been fully satisfied.
j. Partial Invalidity. If any term of this Agreement shall
be held to be invalid or unenforceable, such term shall be deemed to
be severable and the validity of the other terms of this Agreement
shall in no way be affected thereby.
k. Headings. The descriptive headings of the various
Sections or parts of this Agreement are for convenience only and shall
not affect the meaning or construction of any of the provisions
hereof.
l. Full Knowledge. By their signatures, the parties
acknowledge that they have carefully read and fully understand the
terms and conditions of this Agreement, that each party has had the
benefit of counsel, or has been advised to obtain counsel, and that
each party has freely agreed to be bound by the terms and conditions
of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed and delivered
this document the day and year first above written.
COMPANY: Caneum, Inc.
By /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, Chairman
Compensation Committee
CONSULTANT: /s/ Xxxx Chess Xxxxx
Xxxx Chess Xxxxx
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