EXHIBIT 10.33
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release ("Agreement") is entered into by
and between Irata, Inc., a Texas corporation having its principal place of
business at 0000 Xxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000 (the "Company"),
and Corporate Laser Charge, Inc. d/b/a Toner Cartridge Express and having its
principal place of business at 00000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx
00000 ("Creditor"), and is dated effective as of November 18, 1996.
RECITALS
Creditor has asserted a claim against Irata for certain products and
services provided to the Company in the amount of $118,686.14 (herein the
"Claim"). The parties acknowledge that because of costs, hazards, uncertainties
and pitfalls of adversarial collection efforts, including litigation and
appeals, they desire to enter into this Agreement to settle all controversies,
to avoid further costs, litigation and risk and to facilitate the Company's
continued business operations. Accordingly, the parties desire to resolve and
satisfy all claims against each other.
NOW THEREFORE, in consideration of the premises and the covenants
hereinafter set forth, the parties have agreed as follows:
1. Settlement of Claim. The Claim of Creditor shall be satisfied and
settled as follows:
(a) Cash. One-fourth of Creditor's Claim will be paid by the Company
in cash installments agggregating $30,000.00, (i) the first of which in the
amount of $18,000.00 has been paid by the Company to Creditor upon
execution of this Agreement, receipt of which is hereby acknowledged by
Creditor, (ii) with a cash installment in the amount of $4,000.00 to be
paid on December 31, 1996, (iii) with a cash installment in the amount of
$4,000.00 to be paid on January 31, 1997, and (iv) with a final cash
installment of $4,000.00 to be paid on February 28, 1997; and
(b) Stock. The balance of Creditor's Claim shall be satisfied by the
issuance of 50,678 shares of Class A Common Stock of the Company.
2. Representations and Warranties of Creditor. As a material inducement
for the Company to enter into this Agreement, Creditor hereby represents,
warrants and agrees as follows:
(a) That the shares of Class A Common Stock, $.10 per share (herein
the "Common Stock"), have been offered and the terms and arrangements
relating to the transfer of Common Stock of the Company have been arrived
at through direct communication between the Company and the Creditor and
that the offer was not made pursuant to any general advertisement, public
solicitations, broadcast or other medium.
(b) That Creditor has been fully advised as to the business and
affairs and the proposed business and affairs of the Company and its
operations and its proposed operations and has had disclosed to her such
information regarding the Company and the controlling persons thereof as
would have been contained in a registration statement under the Securities
Act of 1933, as amended, and the rules and regulations promulgated
thereunder ("33 Act") covering the shares of Common Stock being acquired
by Creditor.
(c) That the Creditor has such knowledge and experience in financial
and business matters that Creditor is capable of utilizing the information
referred to in the immediately preceding paragraph to evaluate the risks of
investment in the Common Stock and of making an informed investment
decision in connection therewith and that Creditor has utilized the
information referred to in the immediately preceding paragraph in
evaluating the risks of an investment in the Common Stock and that Creditor
has made an informed investment decision with respect to the Common Stock.
(d) That the Common Stock being acquired by Creditor in view of the
economic risks associated therewith and the size and nature of the
investment in the Common Stock by Buyer is an appropriate and suitable
investment for Creditor and that Creditor's personal and financial
condition is such that it is capable of bearing the economic risks of an
investment in the Common Stock.
(e) That Creditor is acquiring the Common Stock for its own account
for investment and
not with a view to or for sale in connection with any distribution thereof
except as provided or otherwise permitted under (i) the 33 Act and (ii) under
any applicable Blue Sky Act.
(f) That Creditor has been informed by the Company that the Common
Stock being issued to Creditor has not been registered under the 33 Act or
any Blue Sky Act and that accordingly, the Common Stock must be held
indefinitely unless it is subsequently registered under the 33 Act and
unless sold in compliance with all of the applicable Blue Sky Acts or any
exemption from such registration is available.
(g) That Creditor understands that Company has not registered the
Common Stock under the 33 Act or any Blue Sky Act in reliance upon the
representations herein contained and that accordingly, Creditor will not at
any time or times directly or indirectly, offer, sell or otherwise dispose
of or solicit any offer to buy, purchase or otherwise acquire any Common
Stock which Creditor receives unless one of the following conditions has
been fulfilled:
(i) a registration statement under the 33 Act is in effect as to
the Common Stock and the Common Stock has been duly qualified under
any applicable Blue Sky Laws; or
(ii) there is presented to the Company an opinion of counsel
satisfactory to the Company in form and substance satisfactory to the
Company to the effect that the proposed transfer of the Common Stock
is exempt from the registration provisions of the 33 Act and any
applicable Blue Sky Act.
(h) That to implement the foregoing, Creditor consents to the placing
of a legend in substantially the following form upon each certificate
evidencing the Common Stock transferred to Creditor from Company:
"The securities evidenced hereby have not been registered under the
Securities Act of 1933. They may not be offered or sold and no
transfer of them will be made by the Company unless (i) they are
registered under the Securities Act of 1933; or (ii) there is
presented to the Company an opinion of counsel satisfactory to the
Company in form and substance satisfactory to the Company to the
effect that such registration is not necessary".
(i) Creditor shall indemnify the Company against all liability, cost
or expenses arising out of or resulting from any misrepresentation or
breach of warranty or breach of any covenant contained herein or in the
offer, sale, distribution or other distribution or other disposition of any
shares of Common Stock or any solicitation of any offer to buy, purchase or
otherwise acquire any Common Stock, in violation of the 33 Act or any Blue
Sky Act.
(j) Creditor has had the benefit of independent legal counsel in
entering into this Agreement.
(k) No promise or inducement has been offered or made to Creditor
except as expressly stated in the Agreement, the Agreement is executed
without reliance on any statement or representation by any third party or
any third party's agent and the Agreement supersedes all prior negotiations
and discussions.
(l) Creditor is the sole owner of the Claim and Creditor has not
previously assigned or transferred or purported to have assigned or
transferred any interest in the Claim to any person or entity.
(m) Creditor is not in a disparate bargaining position with respect to
the negotiation of this Agreement and Creditor is executing this Agreement
of its own free will, act and deed.
(n) Creditor has fully authority to enter into this Agreement and is
competent to do so.
(o) The person or persons executing this Agreement on Creditor's
behalf are duly authorized
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and empowered to do so and all corporate and other formalities necessary
for approval of this Agreement have been satisfied.
3. Release. Except for the obligations of the Company to deliver to
Creditor the certificate evidencing the Common Stock as is provided herein and
the obligation to make the deferred payments as are provided herein, Creditor,
for itself and on behalf of its employees, principals, successors and assigns
(the "Releasing Parties"), hereby unconditionally and irrevocably compromises,
settles and fully releases and forever discharges the Company and its officers,
agents, directors, shareholders, successors and assigns (the "Released Parties")
from any and all costs, expenses, claims, demands, damages, actions, causes of
action, liability or suits at law or in equity, of whatever kind or nature,
whether arising under state or federal law, rule or regulation which any of them
now has, in the past had or in the future may have against the Released Parties
or any of them, whether known or unknown, asserted or unasserted, that directly
or indirectly or any way relate to, are based upon or arise out of the Claim or
any of the transactions giving rise to the Claim. Each Releasing Party hereby
covenants and agrees not in any manner whatsoever to xxx any Released Parties in
any court or tribunal or bring any action, lawsuit or cause of action (whether
by way of direct action, counterclaim, cross-claim or interpleader) against any
Released Party in any manner whatsoever based upon any matter directly or
indirectly related to the Claim or the transactions giving rise to the Claim.
4. Denial of Liability. The parties hereto specifically acknowledge that
they understand and agree that the execution hereof by the parties does not
constitute in any manner whatsoever an admission of liability on the part of any
party for any matters covered by this Agreement, but that such liability is
specifically denied and that the entering into this Agreement is simply to
compromise, settle and release claims, if any, which may have been alleged by
the parties hereto.
5. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas and the applicable laws of the
United States of America. This Agreement has been entered into in Xxxxxx
County, Texas, and shall be performable for all purposes in Xxxxxx County,
Texas.
6. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
7. Entire Agreement. This Agreement embodies the final, entire agreement
among the parties hereto and supersedes any and all prior commitments,
agreements, representations and understandings, whether written or oral,
relating to the subject matter hereof and may not be contradicted or varied by
evidence of prior, contemporaneous or subsequent oral agreements or discussions
of the parties hereto. There are no oral agreements between the parties hereto.
The provisions of this Agreement may be amended or waived only by an instrument
in writing signed by the parties hereto.
8. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of November 18, 1996.
IRATA, INC.
By:__________________________
Xxxx X. Xxxxxxxxx
Vice President & Chief Financial Officer
CORPORATE LASER CHARGE, INC. d/b/a
TONER CARTRIDGE EXPRESS
By:___________________________
Xxxxx Xxxxxxxxx, Authorized Officer
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