EXHIBIT 10.1
SETTLEMENT AND MUTUAL RELEASE AGREEMENT
THIS SETTLEMENT AND MUTUAL RELEASE AGREEMENT ("Agreement") is made and entered
into effective this 31st day of October, 2005, by and between INTERLAND, INC.
("Interland") and NOVELL, INC., ("Novell"). Interland and Novell are
collectively referred to herein as the "Parties," and individually as a "Party."
RECITALS
A. The dispute between the Parties arises out of and relates to certain OEM
Agreements between Novell on the one hand and Micron Electronics, Inc.
("Micron") and NetFrame Systems, Inc. ("NetFrame"), on the other (the "OEM
Contracts"). Novell asserts that Interland is obligated to Novell under the OEM
Contracts as the successor-in-interest to Micron and NetFrame. Interland denies
Novell's allegations in the litigation.
B. Novell filed a Complaint for Damages ("Complaint") in Case No. 990403118, in
the Fourth Judicial District Court for the State of Utah against Micron ("the
Litigation"). The Complaint asserts claims for royalty payments claimed to be
due under the OEM Contracts. During the course of the Litigation, Interland
and/or Micron has asserted certain defenses and/or counterclaims against Novell.
C. Pursuant to the terms and conditions set forth herein, the Parties have now
agreed to entirely settle and resolve their dispute, and to mutually dismiss all
of their respective claims and defenses in the Litigation.
AGREEMENT
1. Adoption of Recitals. The recitals set forth above are adopted and
incorporated herein.
2. Execution of Master License Agreement and Payment from Interland to Novell.
Interland hereby covenants and agrees to execute a standard Master License
Agreement ("MLA") and MLA Order Form substantially in conformance with the
attached Exhibit "A," which MLA shall include the payment to Novell under the
terms of the MLA in the total amount of Nine Hundred Thousand Dollars
($900,000). Such payment shall be paid to Novell in accordance with the terms
and conditions of the MLA attached hereto as Exhibit "A."
3. Release to Interland. In consideration of the promises and covenants
contained in this Agreement, and other good and valuable consideration, the
receipt and sufficiency of which are hereby expressly acknowledged, Novell, for
itself and any and all parents, subsidiaries, affiliates, partners, and all
related entities, together with their respective owners, directors, officers,
employees, shareholders, agents, attorneys, insurers, predecessors, successors,
assigns, and representatives, do hereby release and forever discharge Interland
and any and all parents, subsidiaries (including without limitation NetFrame),
affiliates, partners, and all related entities, together with their respective
owners, directors, officers, employees, shareholders, agents, attorneys,
insurers, predecessors, successors, assigns and representatives ("Interland
Parties"), from any and all claims that may exist as of the date this Agreement
is executed, including, but not limited to, those claims previously asserted in
the Litigation, together with any and all other claims, actions, fines, damages,
penalties, sanctions, costs or attorney's fees, of any nature whatsoever,
whether in law or equity, or any other form, whether now known, unknown,
asserted, unasserted, foreseen, unforeseen, contingent, actual, liquidated, or
unliquidated, arising out of or relating to any such claims.
4. Release to Novell. In consideration of the promises and covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby expressly acknowledged, Interland, for itself and for any
and all Interland Parties, does hereby release and forever discharge Novell and
any and all parents, subsidiaries, affiliates, partners, and all related
entities, together with their respective owners, directors, officers, employees,
shareholders, agents, attorneys, insurers, predecessors, successors, assigns,
and representatives ("Novell Parties"), from any and all claims that may exist
as of the date this Agreement is executed, including, but not limited to, those
claims asserted in the Litigation, together with any and all other claims,
actions, fines, damages, penalties, sanctions, costs or attorney's fees, of any
nature whatsoever, whether in law or equity, or any other form, whether now
known, unknown, asserted, unasserted, foreseen, unforeseen, contingent, actual,
liquidated, or unliquidated, arising out of or relating to any such claims.
5. Attorney's Fees and Costs. The Parties shall remain liable for their own
attorneys' fees and costs incurred as a result of or in association with the
Litigation.
6. No Admission of Liability. This Agreement shall not be construed to contain
or constitute any admission, concession or agreement by any Party concerning the
merits of any issues of claims raised in the Litigation, or any related issues
or claims, and shall not be construed as constituting or containing any such
admission, concessions or agreements regarding fault or liability.
7. Confidentiality. The terms and conditions of this Agreement shall be treated
as confidential. Neither Party shall disclose the terms of this Agreement, nor
shall any Party make any statements or comments about any other Party, the
dispute between the Parties, or the Litigation, except to state that the Parties
have amicably resolved their disputes and dismissed their respective claims and
defenses in the Litigation, provided, however, that either Party may disclose in
any filing with the Securities Exchange Commission any facts pertaining to this
Agreement that it reasonably believes are required to be disclosed under
applicable U.S. securities laws and the rule of any applicable stock exchange.
8. Joint Motion for Dismissal of Claims Between the Parties. Upon final payment
of the Nine Hundred Thousand ($900,000) provided for under the terms of the MLA,
the Parties hereby covenant and agree to have their respective legal counsel
sign and file in the Litigation a Joint Motion for Dismissal of Claims with
Prejudice.
9. Successors and Assigns. This Agreement shall inure to the benefit of each of
the Parties, and shall be binding on the Parties and their respective successors
and assigns.
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10. Applicable Law; Jurisdiction. This Agreement shall be governed by and
construed and interpreted in accordance with the laws (excluding the choice of
laws rules) of the State of Utah. The Parties mutually agree to subject
themselves to the exclusive jurisdiction of the state and federal courts of the
State of Utah, and agree to commence and maintain any lawsuit related to this
Agreement in such courts.
11. Counterparts; Facsimile Signatures. This Agreement may be executed in one or
more counterparts, each of which shall be an original, with the same effect as
if the signatures thereto and hereto were upon the same instrument. Any Party's
facsimile signature will be deemed a binding signature of this Agreement by such
Party.
12. Titles and Headings. Titles and headings of the paragraphs and sections of
this Agreement are for convenience of reference only and shall not affect the
construction of any provision of this Agreement.
13. Severability. The provisions of this Agreement are severable, and if any
provision of this Agreement is found for any reason to be invalid or
unenforceable, in whole or in part, then such provision shall be deemed to be
deleted only to the extent that it is found to be invalid or unenforceable. Such
an invalid or unenforceable provision shall not affect the validity of the
remainder of this Agreement, which shall continue in full force and effect.
14. Integration. This Agreement contains or expressly incorporates by reference
the entire agreement of the Parties with respect to the matters contemplated
herein, and supersedes all prior negotiations and agreements.
15. Authorization. Each individual executing this Agreement represents and
warrants that such individual has been duly authorized to execute and deliver
this Agreement in the capacity and for the entity set forth where such
individual signs.
The Parties have executed this Agreement on the respective dates set forth
below, to be effective as of the date first set forth above.
INTERLAND, INC.
By: /s/ Xxxxxxx Xxxxxx
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Its: C.E.O.
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Date: October 28, 2005
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NOVELL, INC.
By: /s/
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Its: Director, Contracts
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Date: 28 October 05
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