Exhibit 10.15
SETTLEMENT AGREEMENT AND RELEASE
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The parties to this Settlement Agreement and Release (Settlement Agreement)
are Xxxxxxx XxXxxxxx ("XxXxxxxx") and Nighthawk Systems, Inc. ("Nighthawk").
RECITALS
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WHEREAS, XxXxxxxx commenced an action against Nighthawk in the Second
Judicial District Court of the State of Nevada entitled Xxxxxxx X. XxXxxxxx,
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Plaintiff, v. Nighthawk Systems, Inc., a Nevada Corporation, and Does I-X,
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Defendants, Case No. CV03-5406 (the Litigation); and
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WHEREAS, XxXxxxxx and Nighthawk desire to fully and finally resolve all
issues pertaining to the Litigation and the surrounding circumstances; and
WHEREAS, XxXxxxxx and Nighthawk have reached a compromise and settlement
with respect to the Litigation and the surrounding circumstances and do hereby
memorialize the terms of their compromise and settlement by entering into this
Settlement Agreement, which they do so freely and voluntarily, after having
received the benefit of independent counsel and with full knowledge of the
binding and conclusive nature thereof.
TERMS
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NOW, THEREFORE, XxXxxxxx and Nighthawk, for and in consideration of the
agreements and undertakings contained herein and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
agree to a full and final compromise and settlement of all issues pertaining to
the Litigation and the surrounding circumstances in accordance with the
following terms and conditions:
1. Purpose of the Settlement Agreement. The parties to this Settlement
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Agreement understand and agree that the purpose of this Settlement Agreement is
to resolve all disputes relating to the Litigation, including any amounts owed
or other claims or causes of action pertaining to the Litigation.
2. Payment. Nighthawk shall pay to XxXxxxxx the sum of FIFTY-FIVE
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THOUSAND DOLLARS AND NO/100 DOLLARS ($55,000.00) (the Settlement Payment),
according to the following terms and schedule:
a. $10,000.00, to be wired to the account of Xxxx and Xxxxx by 5:00
p.m. October 25, 2004; and
b. $20,000.00 to be paid to XxXxxxxx within 90 days of the date of
execution of this Settlement Agreement; and
c. $25,000.00 to be paid to XxXxxxxx within one year from the date of
the execution of this Settlement Agreement.
3. Confessions of Judgment. In the event that payment is not made in
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accordance with the terms set forth above, XxXxxxxx shall be allowed to file
with the Court the Confessions of Judgment under the following terms:
a. If payment of the $20,000.00 described in paragraph 3(b) above
is not paid to XxXxxxxx within 91 days of execution of this Settlement
Agreement, XxXxxxxx can file with the Court a Confession of Judgment in the
amount of $15,000.00; and
b. If payment of the $25,000.00 described in paragraph 3(c) above is
not paid to XxXxxxxx within 366 days of execution of this Settlement Agreement,
XxXxxxxx can file with the Court a Confession of Judgment in the amount of
$25,000.00.
4. Dismissal of the Litigation. The parties agree that following the
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execution of this Settlement Agreement they will promptly file with the court
all papers necessary to effectuate the dismissal of Nighthawk with prejudice
from the Litigation.
5. Release. Except as otherwise provided in this Settlement Agreement,
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in consideration of the terms of this Settlement Agreement, XxXxxxxx hereby
releases, acquits and discharges Nighthawk and its parents, subsidiaries,
affiliates, officers, directors, employees, representatives, insurers,
attorneys, successors, assigns, and/or agents from any and all accounts, claims,
demands, damages, debts, liabilities, actions, causes of action or suits of
whatsoever kind or nature, presently known or unknown, asserted or unasserted,
arising out of or relating to the Litigation and the surrounding circumstances.
Nighthawk releases XxXxxxxx, save and except for any claims that it may have
against the former Board of Peregrine Control Technologies and XxXxxxxx in his
capacity as the former Chairman of the Board of Peregrine Control Technologies.
6. No Admission as to Liability. The parties to this Settlement
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Agreement each acknowledge and agree that this Settlement Agreement is in
compromise of disputed claims and contentions and that the settlement made
pursuant to this Settlement Agreement shall not be construed as an admission of
liability on the part of any party hereto.
7. Voluntary and Informed Agreement. The parties to this Settlement
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Agreement represent that each of them is legally sophisticated and represented
by counsel and that each of them have read completely and understood fully the
terms of this Settlement Agreement. The parties further represent that after
receiving advice of counsel they have voluntarily entered into this Agreement to
make a full, final and complete compromise of all disputes pertaining to the
Litigation existing between them upon the terms and conditions set forth herein.
The parties hereto further represent to each other that the releases, waivers,
discharges, covenants and agreements provided for in this Settlement Agreement
have been knowingly and voluntarily granted and without any duress or undue
influence of any nature from any person. The parties hereto represent and
warrant to each other that this Settlement Agreement is binding and enforceable
in accordance with its terms.
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8. Confidentiality. The parties to this Settlement Agreement agree to
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keep the terms of this Settlement Agreement confidential and agree not to
disclose the terms of the settlement to any third party, except as mandated by
law.
9. Warranties of Authority. The parties to this Settlement Agreement,
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and each of them, expressly warrant and represent to all other parties that each
has the full right, title and authority to enter into this Settlement Agreement
as provided herein, that no approvals or consents of any other persons,
entities, trusts or agencies are necessary to effect the same, and that no
claims, damages, settlements, verdicts or recoveries have been assigned, by
operation of law or by subrogation or otherwise, to any other person or entity.
10. Further Assurances. The parties shall execute such additional
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documents and perform such further acts as may be reasonably necessary to give
effect to the purposes and provisions of this Settlement Agreement.
11. Binding Effect. This Agreement shall be binding upon and inure to
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the benefit of the parties hereto and their respective successors, predecessors,
parents, affiliates, shareholders, employees, heirs, executors, and
administrators.
12. Entire Agreement. This Settlement Agreement constitutes the entire
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understanding and agreement between the parties with respect to the subject
matter hereof and shall not be amended, supplemented or changed, nor shall any
provision hereof be waived or terminated except by written instrument signed by
the party against whom enforcement of any such amendment, supplement,
modification, waiver or termination is sought. The parties hereto acknowledge
and agree that they have not relied upon any representations or warranties other
than those expressly contained in this Settlement Agreement in entering into
this Settlement Agreement and that no promises, representations, or warranties
have been made concerning this Settlement Agreement other than those expressly
contained herein.
13. Construction. The parties hereto acknowledge that each has had
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input into the drafting of this Settlement Agreement and that this Settlement
Agreement represents the parties' joint efforts. Should any dispute arise
concerning the meaning or construction of any term or terms of this Settlement
Agreement, no term of this Settlement Agreement shall be construed for or
against any party as the drafting party. The captions appearing at the
commencement of each paragraph are descriptive only and for convenience of
reference. In the event of a conflict between such captions and the paragraph at
the head of which they appear, the paragraph and not such caption shall govern
in the construction of this Settlement Agreement.
14. Governing Law. The law of Nevada shall govern the interpretation
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and enforcement of this Settlement Agreement.
15. Specific Performance and Settlement Agreement as Defense to Future
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Actions. The obligations and covenants set forth in this Settlement Agreement
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may be specifically enforced in any court of competent jurisdiction by any party
or parties entitled to the benefit thereof. This Settlement Agreement may,
additionally, be pleaded as a full and complete defense to, and the parties
hereto consent that it may be used as the basis for an injunction to halt any
action suit or other proceeding based upon claims released by this Settlement
Agreement.
16. Costs of Enforcement. In the event any litigation or other
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proceeding is brought for the enforcement of this Settlement Agreement, or is
brought because of an alleged dispute, default, misrepresentation, or breach in
connection with any of the provisions of this Settlement Agreement, the
successful or prevailing party or parties shall be entitled to recover
reasonable attorneys' fees, costs and expenses actually incurred in initiating
or responding to such proceeding, in addition to any other relief to which such
party or parties may be entitled.
17. Counterparts and Copies. This Settlement Agreement may be executed
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in counterparts and shall be deemed executed when counterparts of this
Settlement Agreement have been executed by all the parties; such counterparts
taken together shall be deemed to be the agreement. All fully executed copies
of this Settlement Agreement are duplicate originals, equally admissible in
evidence.
18. Effective Date. The effective date of this Settlement Agreement's
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execution shall be the date indicated below.
IN WITNESS WHEREOF, this Settlement Agreement has been executed by the parties
and attested by their duly authorized representatives this ______ day of
______________, 2004.
________________________________
XXXXXXX X. XXXXXXXX
NIGHTHAWK SYSTEMS, INC.
By: ____________________________
H. XXXXXXX XXXXXXXX
Its: Chief Executive Officer
APPROVED AS TO FORM & CONTENT
________________________________
XXXXX X. XXXXX, ESQ.
ATTORNEY FOR XXXXXXX X. XXXXXXXX
________________________________
XXXX X. XXXXXXX, ESQ.
XXXX X. XXXXXXX, ESQ.
XXXXX XXXXXX
ATTORNEY FOR NIGHTHAWK SYSTEMS, INC.
