EXHIBIT 10.70
MUTUAL RELEASE AND SETTLEMENT AGREEMENT
This Mutual Release and Settlement Agreement is entered into by and between
ALTERNATIVE TECHNOLOGY RESOURCES, INC., a Delaware corporation, formerly
known as 3Net Systems, Inc. ("ATR"), and Omnitech Migrations International,
Inc., formerly known as CENTRE de TRAITMENT I. T. I. OMNITECH, INC.
("Omnitech") (each of whom may be referred to herein as a "Party" and all
of whom may sometimes be referred to herein as the "Parties").
Whereas ATR and Omnitech have entered into a Distributor and Co-
Development Agreement dated April 1, 1994, as amended on June 1, 1994,
June 15, 1994, January 27, 1995, and March 22, 1995;
Whereas disputes have arisen between ATR and Omnitech regarding
performance under the Distributor and Co-Development Agreement, as amended;
and
Whereas ATR and Omnitech wish to terminate their relationship under
the Distributor and Co-Development Agreement and settle their differences.
Now therefore, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by all Parties, ATR and
Omnitech agree as follows:
1. SETTLEMENT. ATR and Omnitech agree to the settlement of any and all
issues arising from or relating to (i) the Distributor and Co-Development
Agreement dated April 1, 1994, including any successor agreement(s) or
modification(s) thereto, whether oral or written, entitled as modifications
or not, (collectively the "94 Agreement"); and (ii) any and all other
matters arising from or relating to any relationship or agreement(s)
between ATR and Omnitech arising prior to the effective date (as defined in
paragraph 8) of this Mutual Release and Settlement Agreement by mutually
agreeing to cancel and terminate the 94 Agreement except as set forth in
paragraph 5 below, and by releasing each other as hereinbelow agreed from
any and all claims, demands, or liabilities which have arisen or which may
arise from the 94 Agreement or the other issues recited in (i) through (ii)
above. ATR and Omnitech further agree that after the effective date,
Omnitech shall continue to have the right to serve its existing Cortex
clients and any marketing, territorial or ownership rights it had before
the effective date will continue.
2. MUTUAL RELEASE. ATR, on the one hand, and Omnitech, on the other hand,
agree to (a) release and discharge the other from any claims, causes of
action, liabilities, and demands each has or might have with respect to or
arising out of any matter set forth above; (b) never commence, aid,
prosecute or cause to be commenced or prosecuted against the other any
action or proceeding based directly or indirectly upon any such matter; and
(c) defend, indemnify, and hold the other Party harmless against all
claims, demands and causes of actions, including costs, expenses and
attorney's fees, directly or indirectly, arising from any action or other
proceeding brought or prosecuted contrary to this Mutual Release and
Settlement Agreement.
3. WAIVER. Each Party agrees that this is a general release and expressly
waives the application of Section 1542 of the California Civil Code, which
provides as follows:
A general release does not extend to claims that the
creditor does not know or suspect to exist in his favor
at the time of executing the release, which if known
must have materially affected his settlement with the
debtor.
Each Party understands and acknowledges that the significance and
consequence of this waiver of the application of California Civil Code
Section 1542 is that even if a Party should eventually suffer additional
damages arising out of the matters referred to above, the Party will not be
able to make any claim for those damages. Furthermore, each Party
acknowledges that the Party intends these consequences even as to claims
for damages that may exist as the date of execution of this Mutual Release
and Settlement Agreement, but as to which the Party does not have knowledge
of their existence and which, if known, would materially affect the Party's
decision to execute this Mutual Release Agreement, regardless of whether
the Party's lack of knowledge is the result of ignorance, oversight, error,
negligence, or any other cause.
4. REPRESENTATION. Each Party represents and warrants that in executing
this Mutual Release and Settlement Agreement, either (i) the Party has
relied upon legal advice from an attorney licensed to practice in the State
of California, who is the attorney of that Party's choice, or (ii) the
Party has been given the opportunity to and has voluntarily executed this
Mutual Release and Settlement Agreement without legal advice from an
attorney licensed to practice in the State of California. Each Party
further represents and warrants that the terms of this Mutual Release and
Settlement Agreement and its consequences have been completely read and
explained to the Party by the Party's attorney if that Party was
represented, and if the Party is unrepresented, that the Party fully
understands the terms of this Mutual Release and Settlement Agreement and
has specifically chosen not to consult an attorney of its choice for which
the other Party shall have no risk for such decision. Further, the Parties
represent and warrant that they, through the signatories indicated below,
are duly authorized to enter into this Mutual Release and Settlement
Agreement, to make its warranties and representations, to perform its
covenants, to give its releases, and to fulfill its conditions, and that
none of the rights, claims, demands, or obligations being released under
this Mutual Release and Settlement Agreement, have been conveyed, assigned,
or otherwise transferred.
5. INDEMNIFICATION, RESOLUTION OF DISPUTES, ARBITRATION, GOVERNING LAW,
VENUE, ATTORNEY'S FEES, AND REPRESENTATION. Nothing in this Mutual Release
and Settlement Agreement is intended to replace, supersede or amend
Articles 14.04, 14.16, 14.17, 14.18, 14.19, and 14.22 of the Distributor
and Co-Development Agreement dated April 1, 1994, as they apply to the
Parties, individually or collectively. Notwithstanding any provisions of
this Mutual Release and Settlement Agreement, and without limitation, the
Parties shall each continue to have all rights and other obligations which
they have pursuant to the provisions of Articles 14.04, 14.16, 14.17,
14.18, 14.19, and 14.22 of the Distributor and Co-Development Agreement.
6. ACKNOWLEDGMENT. Each Party acknowledges and warrants that the Party's
execution of this Mutual Release and Settlement Agreement is free and
voluntary.
7. INTEGRATION. This Mutual Release and Settlement Agreement shall
constitute the entire agreement between the Parties concerning its subject
matter and supersedes all prior or contemporaneous contracts, agreements,
understandings, negotiations and discussions of the Parties, whether oral
or written, concerning its subject matter.
8. EFFECTIVE DATE. This Mutual Release and Settlement Agreement is
effective when it has been fully executed by ATR and Omnitech.
9. SUCCESSORS AND ASSIGNS. This Mutual Release and Settlement Agreement
shall be binding on and inure to the benefit of the heirs, executor,
administrators, trustees, successors, assigns and transferees of the
respective Parties.
10. COUNTERPARTS. This Mutual Release and Settlement Agreement may be
executed in counterparts, and each of which shall be deemed an original,
but all of which together shall constitute one and same instrument.
Dated: May 6, 1997
ALTERNATIVE TECHNOLOGY RESOURCES, INC.
W. XXXXXX XXXX
W. Xxxxxx Xxxx, Chief Executive Officer
Dated: May 6, 1997
OMNITECH MIGRATIONS INTERNATIONAL INC.
ANDRE ST. XXXX
Xxxxx St. Xxxx, President and
Chief Executive Officer
