EXHIBIT 99.1
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This SETTLEMENT AGREEMENT AND MUTUAL RELEASE (hereinafter referred to as
"Agreement") is made as of August, 2004, by and between Plaintiff, XXXX
XXXXXXXXX, and Defendant, Q-MATRIX, INC. Plaintiff and Defendant may also be
hereinafter collectively referred to as ("the parties").
Plaintiff has filed a complaint ("Complaint") against Defendant in the
Superior Court of the State of California, in and for the County of Alameda,
Case No. HG4155209, Plaintiff's Complaint will be hereinafter collectively
referred to as the "Action." As of the date of this Agreement, Defendant has
not filed a cross-complaint as against Plaintiff. There are no parties to
this action.
The parties hereto desire to settle and terminate the Action as against
Defendant 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 and as well 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, it is agreed as follows:
AGREEMENT
1. Settlement of the Action. For and in consideration of the settlement
between the parties, Defendant hereby agrees to make payment to Plaintiff in
the total amount of nineteen thousand, two-hundred eighty dollars and seventy-
five cents ($19,280.75), plus Plaintiff's costs for filing the lawsuit and
serving Defendant not to exceed $400.00. 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
known, suspected, or claimed, which any may have against the other, including
(1) those arising by reasons of any matter, cause, or event arising directly
or indirectly out of the facts and circumstances of the Action - Alameda
County Superior Court Case No. HG4155209 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 action or omission by, or on the part of, any party committed or omitted
prior to the date that this Agreement is executed.
SETTLEMENT AGREEMENT
AND MUTUAL RELEASE
Alameda County Case No. HG 4155209
Page 1 of 4
2. Waiver of Rights. This Agreement shall be construed under the laws
of the State of California. It is the intention of the parties hereto that
the release contained herein shall be effective as a full and final accord and
satisfaction, as a bar to all actions, causes of action, obligations, costs,
expenses, attorneys' fees, damages, losses, claims, liabilities, and demands
of any nature, character, or kind, known or unknown, suspected or unsuspected,
arising out of, directly or indirectly, the subject matter of the Action. The
parties hereto acknowledge that they are familiar with Section 1542 of the
California Civil Code, which provides as follows:
A general release does not extend to claims which the creditor does
not know 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.
The parties hereby expressly waive and relinquish any and all rights and
benefits which they may have under, or which may be conferred on them by, the
provisions of Section 1542 of California Civil Code, as well as under any
other State or Federal statute or common law principle of similar effect, to
the fullest extent that they may lawfully waive such rights or benefits
pertaining to the released matters.
In connection with such waiver 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 hereto 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, as they pertain to Alameda County
Superior Court Case No. HG 4155209.
3. Payment Terms. The nineteen thousand, two-hundred eighty dollars and
seventy-five cents ($19,280.75) payment by Defendant to Plaintiff will be
according to the following schedule:
* Within seven (7) days of Defendant's receipt of this fully
executed Agreement, Defendant will make a payment to Plaintiff
in the amount of $2,892.11, which is equal to 15% of the total
amount of $19,280.75;
* The balance of the total amount, $16,388.64, plus Plaintiff's
cost for filing and serving the complaint not to exceed
$400.00, will be paid by Defendant to Plaintiff by December 31,
2004.
SETTLEMENT AGREEMENT
AND MUTUAL RELEASE
Alameda County Case No. HG 4155209
Page 2 of 4
Defendant will make both payments to Plaintiff by way of check or money order,
made payable to "Xxxx Xxxxxxxxx" and sent by U.S. Mail to Xx. Xxxx Xxxxxxxxx,
000 Xxxxxx Xxxxxx, Xxxxxxx, XX 00000.
4. Dismissal of Action. Immediately upon execution of this Agreement by
the parties hereto, and upon receipt by Plaintiff of the first payment
specified in paragraph 3 above from Defendant of $2,892.11, Plaintiff shall
take all necessary actions to dismiss the entire Action with prejudice, and
to provide to Defendant's attorney, Xxxxx X. Xxxxxxx, an endorsed-filed copy
of such dismissal with prejudice.
5. No Admission of Liability. The parties represent and acknowledge
that they have entered into this Agreement solely for the purpose of
preventing further involving 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.
6. Persons/Entities Bound by Agreement. This Agreement shall be binding
upon and for the benefit of the parties hereto and their respective
successors, subsidiaries, divisions, affiliates, representatives, assigns,
officers, directors, employees and beneficiaries, wherever the context
requires or admits.
7. Advice of Counsel. The parties hereto expressly represent that they
have (1) consulted with attorney(s) concerning this Agreement and have been
fully advised by such attorneys with respect to their rights and obligations
hereunder, or, (2) elected to waive advice of counsel, but have completely
read and fully understand the terms of this Agreement.
8. 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 representatives of all of the parties hereto, and that
no extrinsic evidence whatsoever may be introduced in any judicial or
arbitration proceeding.
9. 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.
SETTLEMENT AGREEMENT
AND MUTUAL RELEASE
Alameda County Case No. HG 4155209
Page 3 of 4
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,
breach, 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 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 Sonoma County,
California.
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.
13. Authority to Contract. All parties hereby, on behalf of themselves
and/or 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.
PLAINTIFF
Dated: 8-18, 2004 By: /s/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx
Vice President of Operations
Q-Matrix, Inc., Defendant
DEFENDANT
Dated: 8-10-04, 2004 By: /s/ Xxxx Xxxxxxxxx, Plaintiff
Xxxx Xxxxxxxxx, Plaintiff
SETTLEMENT AGREEMENT
AND MUTUAL RELEASE
Alameda County Case No. HG 4155209
Page 4 of 4
