Exhibit 10.2
SETTLEMENT AGREEMENT AND MUTUAL RELEASES
This SETTLEMENT A AGREEMENT AND MUTUAL RELEASES (the "AGREEMENT") is made and
entered into as of the "0 day of Mayo 1999, by and between SoftTek, Inc., a
Delaware corporation ("SoftTek") an the one hand, and Xxxx Xxxxx, dba XpressWare
("XpressWare") on the other hand.
R E C I T A L S
---------------
A. On or about February 24, 1996 SoftTek and XpressWare entered jaw a
source and Distribution License Agreement ("License Agreement") regarding The
parties XpressWare's XpressFax Product. In December 1998, XpressWare notified
SoftTek that it was in breach of the License Agreement because It had failed 10
pay approximately $20,000 in past due royalty fees (the "Claim").
B. The parties hereto wish to compromise and settle the issues raised in
connection with the Claim and to release each other from any and All liability
connected therewith, with the understanding that the releases do not constitute
an admission of any wrongdoing illegal conduct, or any other matter on the part
of the parties
AGREEMENT
---------
NOW, THEREFORE, in consideration Of the promises hereinafter set forth and
for good and valuable consideration, the receipt and adequacy of which no hereby
acknowledged, the parties agree as follows:
1. XpressWare will execute the Technology Transfer Agreement attached
hereto as Exhibit A, which transfers to SoftTek sill of XpressWare's right,
title and interest in XpressWare's software product "XpressFax" ("XpressFax
Software" including without limitation, CD master, and all copies, tapes and
software code, research data, flow charts designs technical information and
source code related to the xpressfax Software XpressWare represents and warrants
that other than source code, the materials described in the previous sentence do
not exists, SoftTek is not assuming Any liability for any exlsting third party
agreements that relate to the XpressFax Software, whether known or unknown.
2. Upon execution of this Agreement and the Technology Transfer Agreement
attached hereto as Exhibit A, SoftTek will pay to XpressWare the sum Of TM
Thousand Dollars ($10,000.00). Thereafter, SoftTek, will pay XpressWare the sum
of the Xxxxx Thousand Dollars ($30,000.00) in the following installments, (4)
$20,000.00 on June 1, 1999 land (b) 10,000.00 on July 1, 2000. All payments
shall be made payable to XpressWare and delivered to I 000 Xxxxxxx Xxxxx, Xxxx,
Xxxxxxxx 00000.
3. Upon full and complete performance of all conditions set herein
SoftTek, for itself, its legal successors and assigns, does hereby, absolutely,
fully and forver
release, waive, relinquish, and discharge XpressWare his legal successors and
assigns.. employees, representatives, attorneys, any each of them, of and from
any and all manner of action or actions, cause or causes of action, suits,
debts, liabilities, demands, sums of money in controversy, damages, accounts,
reckoning, mid liens of every kind or nature whatsoever, whother known,
suspected, or unsuspected which it shall or may have, own or hold, which It at
any time heretofore had, owned or held, or could shall or may hereafter own, or
hold, by
Initial: ____________
Reason of, arising out of, or in connection such matters which relation to or in
any way arise out, or relate to or rise out of, the Claim or the Licence
agreement From and after the date, and neither the SoftTek or its sucessors or
assigns, shall have any claim against XpressWare, his legal successors, assigns,
employees, representatives, attorneys, directly or indirectly on any such matter
or cause, facts thing, Art or omission existing, done at Admitted to be done 21
Any time whatsovever to and including the date hereof, including without
limitation, matters related to cc in any way arising out of or which could
relate to or wise out of the Claim or the License Agreement
4. Upon full and complete performance of all conditions set forth herein,
XpressWare, for himself, his legal successors and assigns, does hereby,
absolutely, fully and forever release, waive, relinquish, and discharge SoftTek
and its legal successors and assigns, employees, representatives, attorneys,
subsidiaries, affiliates, and each of them of and from any and all manner of
action or actions, cause or causes of action, suits, debts, demands, sums of
Money in controversy, damages, accounts, reckoning, and liens of every kind or
nature whatsoever, whether known, supposed or unsuspected which they shall or
may have, own or hold, which they at any time heretofore had, owned or hold, of
could, shall or may hereafter own, or hold, by reason of arising out of, or in
connection with the Claim or the License Agreement. From and after the date
hereof, neither XpressWare nor his successors or shall have any Claim of any
kind or nature on or against SoftTek or its legal successors or assigns,
directly or indirectly on any such matter or cause, Fact, thing, act or omission
existing, (lone or committed to be done at any time whatsoever to ad Including
the date hereof, related to or in soy way arising out of or which could relate
to or arise out of the Claim or the License Agreement,
5. Except at to the executory provisions of this AGREEMENT, the parties
each intention acknowledge that they are aware of the fact that It Is the,
intention of tilt parties hereto in which intention each of the parties agree,
that, upon execution by the parties this AGREEMENT shall be effective AS a full
and final accord and satisfaction in settlement of and as a bar to, any and all
claims heretofore referred to and released which any party hereto has, may have
in the future, or has had against the otherparty hereto related to the Action.
In connection with such waiver and relinquish, the parties hereto acknowledge
that each is aware that it, or its attorneys, may hereafter discover facts
different from or in addition to, farts not known and believed true with respect
to the subject matter of this AGREEMENT, but that it is each parties' intention
hereby to fully, finally, absolutely and
forever settle Any and all claims, heretofore Wowed to, disputes and differences
which do not exist, may exist or heretofore have existed between any of the
parties to this AGREEMENT and that, in furtherance of such intention, the
releases herein given shall be and remain in effect as full and complete
Releases, notwithstanding the discovery of any such different or additional
facts, Therefore, each of the parties hereto acknowledge that each has been
informed by its respective attorneys and advisors of, and each is familiar with,
Section 1541 of the Civil Code of the State of California, which provides as
follows:
"A general release does not extend to
claims which tilt creditor does not know
or suspect to exist In his favor :at the time
of executing a release which if known to
'him must have materially affected his
settlement with the debtor."
Each of the parties does hereby waive and relinquish all rights and benefits
each has or may have under section 1542 We the Civil of the State of California
to the fullest extent that each may lawfully waive such fights and benefits
pertaining to subject matter of this AGREEMENT, and acknowledges that this
waiver is 4 material inducement to the other party's execution of the AGREEMENT.
6. The provisions of this AGREEMENT shall be binding and extended to and
inure, to the benefits of the partners, employees, legal successors, assigns,
hairs, executors, and administrators Of each of the parties, including without
limitation, any partnerships, corporations or other entities in which my of them
have a controlling interest or position, and shall also be binding upon their
agents, servants, representatives, attorneys and Persons acting for them or on
their behalf.
7. This AGREEMENT may be used by any one or more of the parties hereto as
a full mid complete defense to, and the parties hereby consent that It may be
used as the basis for an injunction against any action, emit or other proceeding
based on any Claim released by this AGREEMENT as to any one or more of the
parties.
8. This AGREEMENT is the entire agreement between the parties related to
the subject matter hereof and supersedes and replaces all prior negotiations or
propose agreements, written or oral, relating thereto. Each of the parties
hereto acknowledges that no other party, nor any giant or attorney of any other
xxxxx, has made any promise representations or warranty whatsoever express of
implied, not contained herein concerning the subject matter hereof, to induce
them to execute this AGREEMENT in reliance upon any such promise, representation
or warranty not contained herein. No provision of this document may be amended
or added hereto except by an agreement in writing signed by all parties hereto
or their respective
9. Each of the parties represents and warrants that (1) they arc the sole
and absolute owners of each and every claim covered by the Agreement and that
they have
not heretofore not Will they in the future, assign or transfer or purport to
assign or transfer to any person or entity, either voluntarily, or involuntarily
any claim, cause of action, or right, or portion thereof, Wed upon; arising out
of in connection with any matters fact, or thing described or act forth in this
Agreement; (2) that each party has full authority to release and forever
discharge the claims and to execute the AGREEMENT and bind themselves to the
AGREEMENT by execution hereof; and (3) that to the best of their knowledge, the
execution and delivery of this AGREEMENT will not violate any agreement, court
order, administrative order of any governmental entity, or any law or
governmental regulation.
10. It is understood and agreed between all of the parties that the purpose
of the AGREEMENT Is. for each of them to buy their complete peace from any
claim. Accordingly it is understood and agreed between all of the parties that,
should any party to this AGREEMENT file any other lawsuit or legal action for
the purpose of claiming recovery, at law or in equity, or any nature, whether
known or unknown, in any way related to any of the Claim, or for any typo or
form of indemnity or subrogation related to the payments to be made pursuant to
this AGREEMENT that the parties so instituting that legal action shall fully
indemnify and hold harmless all other parties to this AGREEMENT from my claims
wising out of or associated with that future lawsuit or legal action.
11. No action by either of the parties hereto, either previously or in
connection with this AGREEMENT shall be deemed or constructed to be an admission
of the truth or falsity of any matter pertaining to any Claim referred to herein
or relating to tilt subject matter of this AGREEMENT, or an
Initial:_____________
acknowledgment by such party, or any -of them, of Any liability to the other
party hereto, or to any other pardon.
12. Time A's of the essence as to the performance Of All obligations
herein.
13. This AGREEMENT may be executed In any number of counterparts, and it so
executed, each such counterpart shall have the same force mid full effect of in
original. If any term or provision of the AGREEMENT Is determined to be invalid
or unenforceable, Via remaining terms and provisions shall not be affected these
by and shall remain In full force and effect to the maximum extent permitted by
law,
14. All tile agreements, representations, warranties and obligations of the
parties set forth in this AGREEMENT shall survive the execution of this
AGREEMENT This AGREEMENT shall be governed by And construed under the laws of
the State of California.
15, In the event that a dispute arises between regarding parties prevailing
party shall be entitled to recover the full amount of their attorneys' fees
expert Agreement the
prevailing party shall be entitled to recover the fullest amount of their
attorney's fees, export conditions contained in this agreement.
16. The parties shall act reasonably and in good faith in carrying out all
terms and conditions contained in this agreement
17. THE UNDERSIGNED HEREBY CERTIFY THEY HAVE MAD ALL OF THIS SETTLEMENT
AGREEMENT AND MUTUAL GENERAL RELEASES AND FULLY UNDERSTAND ALL OF THE SAME.
DATED: May 17, 1999 By: /s/ X.X. Xxxxxx
--------------------------------
XXXX XXXXX, DBA, XPRESSWARE
DATED: May 20, 1999 By: /s/ Xxxx Xxxxx
--------------------------------
