EXHIBIT 4.26
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
XXXXXX XXXX-XXXX, an individual CASE NO. BC 261910
Plaintiff,
v. SETTLEMENT AGREEMENT
EPICEDGE, INC., a corporation, XXXXXXX ORIGINAL COMPLAINT
XXXXXX, an individual, XXX XXXXXXX, an FILED: NOV. 16, 2001
individual, XXXX XXXX, an individual,
and DOES 1 TO 10, inclusive. JUDGE: Xxx. Xxxxxxx Xxxxx
Defendants.
SETTLEMENT AGREEMENT
This Settlement Agreement ("Agreement") is made and entered into as of
this 15th day of April, 2002, by and between Xxxxxx Xxxx-Xxxx, an individual,
EpicEdge, Inc., Xxxxxxx Xxxxxx, Xxx XxXxxxx and Xxxx Xxxx, individuals,
hereinafter referred to as "Nour-Omid," "EpicEdge," "Xxxxxx," "XxXxxxx" and
"Xxxx" respectively, and collectively referred to as the "Parties."
RECITALS
WHEREAS, bona fide disputes and controversies exist between the Parties.
WHEREAS, by reason of such disputes and controversies Nour-Omid filed a
lawsuit against EpicEdge, Xxxxxx, XxXxxxx and Xxxx in the Superior Court of the
State of California, County of Los Angeles, case no. BC 261910 (the "Lawsuit").
WHEREAS, the Parties desire to settle fully and finally, in the manner set
forth in this Agreement, all claims and causes of action of any kind whatsoever
which have arisen or which may arise, prior to, or at the time of, the execution
of this Agreement, including, but in no way limited to, any and all claims and
controversies which were asserted in or which could have been asserted by them
in the Lawsuit.
NOW, THEREFORE, in consideration of the Recitals and the mutual promises,
covenants, and agreements set forth herein, and in full compromise, release and
settlement, accord and satisfaction, and discharge of all claims or causes of
action, known or unknown, possessed by or belonging to the Parties hereto, the
Parties covenant and agree as follows:
1. Settlement Terms:
(a) EpicEdge will make an initial settlement payment of $300,000.00 in
immediately available funds upon the closing of the Preferred Equity round of
financing with Edgewater Funds, but in no event later than five court days after
the Closing. If the Closing does not occur by April 22, 2002, all provisions of
this Settlement Agreement are null and void.
(b) Upon completion of the initial settlement payment EpicEdge will
continue to owe Nour-Omid $221,000.00 under the terms of the December 1, 2000
Note between Nour-Omid and EpicEdge (the "Note"). Interest will accrue on this
outstanding balance of $221,000 at 8% pursuant to the terms of the Note. The
outstanding balance and all accrued interest thereon will be due and payable in
full in immediately available funds on January 10, 2003. If such payment is not
made in full as of such date, in addition to and not in substitution of any of
Nour-Omid's other rights and remedies with respect to such nonpayment, the
outstanding remaining balance of principal and interest shall bear interest at
the rate of 18% until paid in full.
Nour-Omid will continue to hold the one million warrants he holds in EpicEdge.
Nour-Omid acknowledges that he is bound by the restrictions of Rule 144 and
agrees that any sale of shares obtained upon exercise of the Warrant will be
sold in the public markets only in accordance with such Rule.
(c) Nour-Omid agrees to dismiss, within five court days after the funds
described in subsection (a) above clear his account, all claims raised in the
Lawsuit, (i) provided that the initial settlement amount has been paid in full
pursuant to subsection (a), and (ii) under the following terms:
(1) claim 3 against EpicEdge and Rose and claim 4 against EpicEdge,
Xxxxxx, XxXxxxx and Xxxx shall be dismissed without prejudice;
(2) all other claims shall be dismissed with prejudice.
(f) Upon completion of the final payment pursuant to subsection 1(b), this
Agreement shall have the effect of a dismissal with prejudice for all claims
asserted and shall constitute a final judgment of all claims.
Contingent on performance of the above, the Parties agree to the following:
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2. Mutual Releases:
(a) Nour-Omid, for himself and on behalf of his attorneys, heirs, assigns,
successors, executors, administrators, current and former parent, subsidiary,
affiliated, and related corporations, firms, associations, partnerships, and
entities, their respective successors and assigns, and the current and former
owners, shareholders, directors, officers, employees, agents, attorneys,
representatives and insurers of said corporations, firms, associations,
partnerships, and entities and their guardians, successors, assigns, heirs,
executors, and administrators, IRREVOCABLY AND UNCONDITIONALLY RELEASES,
ACQUITS, AND FOREVER DISCHARGES EpicEdge, Xxxxxx, Xxxx and XxXxxxx and each of
their current and former parent, subsidiary, affiliated, and related
corporations, firms, associations, partnerships, and entities, their respective
successors and assigns, and the current and former owners, shareholders,
directors, officers, employees, agents, attorneys, representatives and insurers
of said corporations, firms, associations, partnerships, and entities and their
guardians, successors, assigns, heirs, executors, and administrators, of and
from any and all claims, complaints, grievances, liabilities, obligations,
promises, agreements, damages, causes of action, rights, debts, demands,
controversies, costs, losses, damages, and expenses (including attorneys' fees
and expenses) whatsoever, other than any arising under this Agreement, under any
municipal, local, state, or federal law, common or statutory, whether arising in
contract or tort or otherwise including, but not limited to, each and every
claim asserted or assertable in the Lawsuit, for any actions or omissions
whatsoever, whether known or unknown and whether arising under the claims and
causes of action asserted or assertable in the Lawsuit, or not, which existed or
may have existed prior to, or contemporaneously with, the execution of this
Agreement provided that nothing herein shall be construed to affect (i) the
validity of Warrants Nour-Omid holds in EpicEdge; (ii) any claim arising if
EpicEdge disputes the validity or the terms of such warrants; and (iii) any
right to defense and/or indemnity if any claim is made against Nour-Omid for
actions or inactions taken within the course and scope of his duties for
EpicEdge.
(b) EpicEdge, for itself and on behalf of its attorneys, heirs, assigns,
successors, executors, and administrators, IRREVOCABLY AND UNCONDITIONALLY
RELEASES, ACQUITS, AND FOREVER DISCHARGES Nour-Omid and his current and former
parent, subsidiary, affiliated, and related corporations, firms, associations,
partnerships, and entities, their respective successors and assigns, and the
current and former owners, shareholders, directors, officers, employees, agents,
attorneys, representatives and insurers of said corporations, firms,
associations, partnerships, and entities and their guardians, successors,
assigns, heirs, executors, and administrators, of and from any and all claims,
complaints, grievances, liabilities, obligations, promises, agreements, damages,
causes of action, rights, debts, demands, controversies, costs, losses, damages,
and expenses (including attorneys' fees and expenses) whatsoever, other than any
arising under this Agreement, under any municipal, local, state, or federal law,
common or statutory, whether arising in contract or tort or otherwise including,
but not limited to, each and every claim asserted or assertable in the Lawsuit,
for any actions or omissions whatsoever, whether known or unknown and whether
arising under the claims and causes of action asserted or assertable in the
Lawsuit, or not, which existed or may have existed prior to, or
contemporaneously with, the execution of this Agreement.
(c) Xxxxxx, for himself and on behalf of his attorneys, heirs, assigns,
successors, executors, and administrators, IRREVOCABLY AND UNCONDITIONALLY
RELEASES,
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ACQUITS, AND FOREVER DISCHARGES Nour-Omid and his current and former parent,
subsidiary, affiliated, and related corporations, firms, associations,
partnerships, and entities, their respective successors and assigns, and the
current and former owners, shareholders, directors, officers, employees, agents,
attorneys, representatives and insurers of said corporations, firms,
associations, partnerships, and entities and their guardians, successors,
assigns, heirs, executors, and administrators, of and from any and all claims,
complaints, grievances, liabilities, obligations, promises, agreements, damages,
causes of action, rights, debts, demands, controversies, costs, losses, damages,
and expenses (including attorneys' fees and expenses) whatsoever, other than any
arising under this Agreement, under any municipal, local, state, or federal law,
common or statutory, whether arising in contract or tort or otherwise including,
but not limited to, each and every claim asserted or assertable in the Lawsuit,
for any actions or omissions whatsoever, whether known or unknown and whether
arising under the claims and causes of action asserted or assertable in the
Lawsuit, or not, which existed or may have existed prior to, or
contemporaneously with, the execution of this Agreement.
(d) XxXxxxx, for himself and on behalf of his attorneys, heirs, assigns,
successors, executors, and administrators, IRREVOCABLY AND UNCONDITIONALLY
RELEASES, ACQUITS, AND FOREVER DISCHARGES Nour-Omid and his current and former
parent, subsidiary, affiliated, and related corporations, firms, associations,
partnerships, and entities, their respective successors and assigns, and the
current and former owners, shareholders, directors, officers, employees, agents,
attorneys, representatives and insurers of said corporations, firms,
associations, partnerships, and entities and their guardians, successors,
assigns, heirs, executors, and administrators, of and from any and all claims,
complaints, grievances, liabilities, obligations, promises, agreements, damages,
causes of action, rights, debts, demands, controversies, costs, losses, damages,
and expenses (including attorneys' fees and expenses) whatsoever, other than any
arising under this Agreement, under any municipal, local, state, or federal law,
common or statutory, whether arising in contract or tort or otherwise including,
but not limited to, each and every claim asserted or assertable in the Lawsuit,
for any actions or omissions whatsoever, whether known or unknown and whether
arising under the claims and causes of action asserted or assertable in the
Lawsuit, or not, which existed or may have existed prior to, or
contemporaneously with, the execution of this Agreement.
(e) Rose, for himself and on behalf of his attorneys, heirs, assigns,
successors, executors, and administrators, IRREVOCABLY AND UNCONDITIONALLY
RELEASES, ACQUITS, AND FOREVER DISCHARGES Nour-Omid and his current and former
parent, subsidiary, affiliated, and related corporations, firms, associations,
partnerships, and entities, their respective successors and assigns, and the
current and former owners, shareholders, directors, officers, employees, agents,
attorneys, representatives and insurers of said corporations, firms,
associations, partnerships, and entities and their guardians, successors,
assigns, heirs, executors, and administrators, of and from any and all claims,
complaints, grievances, liabilities, obligations, promises, agreements, damages,
causes of action, rights, debts, demands, controversies, costs, losses, damages,
and expenses (including attorneys' fees and expenses) whatsoever, other than any
arising under this Agreement, under any municipal, local, state, or federal law,
common or statutory, whether arising in contract or tort or otherwise including,
but not limited to, each and every claim asserted or assertable in the Lawsuit,
for any actions or omissions whatsoever, whether known or unknown and whether
arising under the
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claims and causes of action asserted or assertable in the Lawsuit, or not, which
existed or may have existed prior to, or contemporaneously with, the execution
of this Agreement.
(f) The parties expressly understand and agree that this Agreement fully
and finally releases and forever resolves the matters released and discharged in
Paragraphs 2(a)-2(e), including those which may be unknown, unanticipated and/or
unsuspected, and, upon the advice of legal counsel, hereby expressly waive all
benefits under California Civil Code Section 1542, as well as under any other
statutes or common law principles of similar effect, to the extent that such
benefits may contravene the release set forth in this Paragraph. The parties
hereby acknowledge that they have read and understood Section 1542, 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.
3. The Lawsuit: Nour-Omid agrees to stipulate to dismissing all claims
raised in the Lawsuit pursuant to 1(e) supra.
4. Costs and Fees. Each party will bear its own cost, attorney's fees and
expenses associated with the Lawsuit.
5. Denial of Liability: The Parties hereto recognize that, by entering
into this Agreement, the Parties do not admit, and specifically deny, any
violation of any local, state, or federal law, common or statutory. The Parties
further recognize that this Agreement has been entered into in release and
compromise of any and all claims that have been or might be asserted in
connection with the Lawsuit, and to avoid the expense and burden of any
additional litigation related thereto.
6. Severability: If any provision or term of this Agreement is held to be
illegal, invalid, or unenforceable, such provision or term shall be fully
severable; this Agreement shall be construed and enforced as if such illegal,
invalid, or unenforceable provision had never comprised part of this Agreement;
and the remaining provisions of this Agreement shall remain in full force and
effect and shall not be affected by the illegal, invalid, or unenforceable
provision or by its severance from this Agreement. Furthermore, in lieu of each
such illegal, invalid, or unenforceable provision or term there shall be added
automatically as a part of this Agreement another provision or term as similar
to the illegal, invalid, or unenforceable provision as may be possible and that
is legal, valid, and enforceable.
7. Entire Agreement: This Agreement constitutes the entire Agreement of
the Parties, and supersedes all prior and contemporaneous negotiations and
agreements, oral or written. All prior and contemporaneous negotiations and
agreements are deemed incorporated and merged into this Agreement and are deemed
to have been abandoned if not so incorporated. No representations, oral or
written, are being relied upon by either party in executing this Agreement other
than the express representations of this Agreement. This Agreement cannot be
changed or terminated without the express written consent of the Parties.
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8. Governing Law: This Agreement shall be governed by and construed in
accordance with the laws of the State of California, except where preempted by
federal law.
9. Waiver: The failure of any party hereto to object or to take
affirmative action with respect to any conduct of the other which is a breach of
any term of this Agreement shall not be construed as a waiver of any future
breach or any subsequent wrongful conduct.
10. Counterparts: This Agreement may be signed in counterparts, each of
which shall be deemed an original hereof, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, Nour-Omid, EpicEdge, Xxxxxx, XxXxxxx and Xxxx have
executed this Agreement by their duly authorized representatives.
XXXXXX XXXX-OMID
/s/ Xxxxxx Xxxx-Xxxx
-----------------------------
Xxxxxx Xxxx-Omid.
On April 15, 2002
EPICEDGE, INC.
/s/ Xxxxxxxx Xxxx
-----------------------------
Xxxxxxxx X. Xxxx, Esquire
Attorney for EpicEdge, Inc.
On April 15, 2002
/s/ Xxxxxxx Xxxxxx
-----------------------------
Xxxxxxx Xxxxxx
CEO, EpicEdge, Inc.
On April____, 2002
XXXXXXX XXXXXX
/s/ Xxxxxxx Xxxxxx
-----------------------------
Xxxxxxx Xxxxxx
individually
On April 11, 2002
XXX XXXXXXX
/s/ X. X. XxXxxxx
-----------------------------
Xxx XxXxxxx
individually
On April 11, 2002
XXXX XXXX
/s/ Xxxx Xxxx
-----------------------------
Xxxx Xxxx
individually
On April 14, 2002
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