EXHIBIT 8.3.2.
ACCORD, MUTUAL RELEASE AND NON-DISPARAGEMENT AGREEMENT
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THIS ACCORD, MUTUAL RELEASE AND NON-DISPARAGEMENT AGREEMENT (this
"Agreement") is made as of April 25, 2005, by and between eChex, Inc., a
California corporation, and Xxxxxx Beaumont, Inc., a Nevada corporation, with
reference to the following.
1. PARTIES.
The following persons and entities are parties to this Agreement:
"eCHEX" shall refer to eChex, Inc.
"MBI" shall refer to Xxxxxx Beaumont, Inc.
2. RECITALS.
Effective November 26, 2004, the parties entered into a written
contract called "Distributor Agreement." Effective January 10, 2005, eCHEX
entered into a written contract with Xxxxxx, Inc. ("Xxxxxx") called
Broker-Client Agreement. Effective January 21, 2005, the parties entered into a
contract called "Security and Loan Agreement" for a Secured Promissory Note (the
"Note") for money loaned by MBI to eCHEX in the amount of Two Hundred Two
Thousand Dollars ($202,000). Also on January 21, 2005, the parties, along with
Xxxxxx signed an Addendum to the Broker-Client Agreement as a condition of the
Note. For convenience and brevity hereafter, the Broker-Client Agreement and
Addendum shall be referred collectively as the "Broker-Client Agreement."
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The parties have mutually decided to terminate any contractual
relationship to each other with regard to the Distributor Agreement and the
Broker-Client Agreement and allow MBI to assume all rights and certain duties of
eCHEX under the Broker-Client Agreement, release Xxxxxx from certain
liabilities, extend the due date of the Note and to compromise, resolve and
settle their differences.
3. EFFECTIVE DATE.
The effective date of this Agreement shall be as of the last date that
both parties sign this Agreement. This Agreement shall not be effective until
signed by each of the parties to this Agreement and delivered to the other
parties. This Agreement will be signed by both parties at the same time as the
Release for Xxxxxx which is attached as Exhibit A to this Agreement. This
Agreement is subject to the approval of the board of directors of MBI and by the
Board of Directors of eCHEX, which shall be sought by both parties within two
(2) business days of the date hereof. If either party notifies the other that
its board has not approved this Agreement within two (2) business days, this
Agreement shall be cancelled. If no such notice is provided, both parties' board
shall be presumed to have approved this Agreement. This Agreement and the
obligations and releases described herein are subject to the approval of Xxxxxx
and the agreement of and the signing of said agreement by Xxxxxx to work
directly with MBI.
4. CONSIDERATION.
In consideration of the mutual release as set forth below in Section 5
and the assignment and assumptions set forth below, it is hereby agreed by all
parties to this Agreement that:
(a) MBI hereby extends the due date of the Note for a period of six (6)
months from the date of the signing of this Agreement. If eCHEX defaults on the
Note, eCHEX agrees that MBI can file for a Summary Judgment against eCHEX for
the principal, interest and late fees of the Note.
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(b) MBI forever releases and terminates any and all personal
guarantees, which includes Xxxxxxxxx Xxxxxx, Xxxxxx Xxxxxxxx, Xxxxxx Xxxxxx and
their family members, connected in anyway to or documented in any way in the
Security & Loan Agreement and any of its attachments which includes but is not
limited to the Note, General Continuing Guaranty and Stock Pledge Agreement or
any and all personal guarantees towards any and all documents signed between
eCHEX and MBI, known or unknown.
(b) Upon execution of this Agreement by MBI and eCHEX and the approvals
set forth herein, MBI shall assume all rights and certain obligations of eCHEX
under the Broker- Client Agreement with Xxxxxx and perform each of the duties of
eCHEX thereunder;
(c) MBI shall relinquish the right to use, in any way, the name,
trademarks, intellectual property, logos, art or designs of eCHEX, unless eCHEX
defaults on the Note;
(d) MBI shall not use the eCHEX logo and collateral material prepared
by eCHEX, except upon the occurrence of a default by eCHEX under the Loan and
Security Agreement, as modified by this Agreement;
(e) MBI shall not xxx Xxxxxx for the failure of eCHEX, or eCHEX and
Xxxxxx, to perform under the Broker-Client Agreement through the date of this
Agreement;
(f) eCHEX agrees that MBI may use the eCHEX Kiosk programs and purchase
the Kiosks from or through any source;
(g) eCHEX, on behalf of itself and its offices and directors, agrees
not to work with Xxxxxx or in any way interfere with MBI's relationship with
Xxxxxx, as long as MBI works with Xxxxxx;
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(h) Until such time as the Note is paid in full, eCHEX shall not
transfer or encumber any assets or violate any of the representations,
warranties or covenants of the Loan and Security Agreement or the Note without
the approval of MBI;
(j) Thirty percent (30%) of any revenue generated by eCHEX shall be
paid to MBI until the Note is paid in full;
(k) If eCHEX raises any debt or equity capital or conducts any
financing, any funding of less than Five Hundred Thousand Dollars ($500,000)
fifty percent (50%) of said money raised shall be paid towards the Note. If more
than Five Hundred Thousand Dollars ($500,000) is raised, the Note shall be paid
in full;
(l) No commissions or fees shall be paid to eCHEX for any business
conducted by and through Xxxxxx on behalf of MBI.
5. MUTUAL RELEASE.
On the effective date of this Agreement, the parties agree on the
following releases:
(a) eCHEX's Obligations to MBI and Xxxxxx. The Distributor Agreement is
hereby terminated and MBI and eCHEX release each other from any obligations or
condition thereof.
(b) Both parties release the other from any and all contractual
relationship or obligations with regard to the Broker-Client Agreement.
Therefore, MBI can work with Xxxxxx directly under the Broker-Client Agreement
in place of eCHEX and the MBI/Xxxxxx relationship does not have to be through
eCHEX. MBI shall be entitled to perform on behalf of eCHEX. Additionally, eCHEX
will not work with or interfere with the relationship with Xxxxxx as long as MBI
is working with Xxxxxx and eCHEX has the right to work with any processor,
software provider or bank of its choosing, provided such activity does not
violate the terms of any Non-Disclosure Agreement, Non-Circumvention Agreement,
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Confidentiality Agreement or other similar agreement binding eCHEX or its
officers or directors. Nothing in this Agreement shall be construed or is
intended to waive or modify any such agreement or any proprietary or
confidential rights.
(c) eCHEX will immediately sign an agreement releasing Xxxxxx from any
liabilities and stating that Xxxxxx may work with MBI to fulfill the
Broker-Client Agreement or any successor agreement. MBI may desire to enter into
with Xxxxxx and MBI may perform on behalf of eCHEX under the Broker-Client
Agreement and assume all rights and certain obligations. A form of release is
attached to and made a part of this Agreement as EXHIBIT "A".
(d) MBI will immediately sign the same agreement as referred to in 5(c)
above releasing Xxxxxx from any liabilities which is attached and made a part of
this Agreement as EXHIBIT "A".
6. MUTUAL COVENANTS RE: NON-DISPARAGEMENT.
(a) Non-Disparagement of eCHEX. MBI agrees for itself and all others
acting on its behalf, either directly or indirectly: (i) Not to publish, repeat,
utter or report any statement or comment, nor to take, encourage, induce or
voluntarily participate in any action, that would negatively comment on,
disparage, defame or call into question the business operations, policies or
conduct of eCHEX or its affiliates or employees; (ii) Not to act in any way with
respect in eCHEX's business operations, polices or conduct that would damage
eCHEX's reputation, business relationships or present or future business, or the
reputation of eCHEX's past or present executives, agents, employees or
affiliates; and (iii) Not to comment about eCHEX to any person or entity,
including, but not limited to, eCHEX's customers or vendors concerning eCHEX's
business operations, policies or conduct. The foregoing shall not apply to the
extent disclosures are necessary in the enforcement of the Note or other
agreements, as required by law or are truthful or factual statements that MBI is
required to make or disclose to its shareholders or as a public company.
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(b) Non-Disparagement of MBI. eCHEX agrees for itself and all others
acting on its behalf, either directly or indirectly: (i) Not to publish, repeat,
utter or report any statement or comment, nor to take, encourage, induce or
voluntarily participate in any action, that would negatively comment on,
disparage, defame or call into question the business operations, policies or
conduct of MBI or its affiliates or employees; (ii) Not to act in any way with
respect in MBI's business operations, polices or conduct that would damage MBI's
reputation, business relationships or present or future business, or the
reputation of MBI's past or present executives, agents, employees or affiliates;
and (iii) Not to comment about MBI to any person or entity, including, but not
limited to, MBI's customers or vendors concerning MBI's business operations,
policies or conduct except as required or permitted by law.
(c) Press Release. Within five (5) business days, eCHEX and its
officers will issue a press release concerning the assignment of the
Broker-Client Agreement to MBI, reflecting the transaction in a positive manner,
which form and content shall be acceptable to MBI, eCHEX and Xxxxxx.
7. HEIRS, SUCCESSORS AND ASSIGNS.
The agreement, undertakings, acts, covenants and other things done or
to be done by the parties pursuant to this Agreement shall run to and be binding
upon their respective heirs, successors, executors, administrators and assigns.
8. COUNTERPARTS.
It is agreed by the parties, that this Agreement may be executed in
counterpart form, and that any counterpart copy when executed by any party
hereto shall be legally binding and enforceable against said party. Facsimile
signatures of the parties and counsel shall be deemed original and acceptable as
signatures.
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9. CONCLUSION.
This Agreement supercedes any prior written or oral agreement between
the parties. This Agreement contains the entire agreement between the parties.
The terms of this Agreement are contractual and not a mere recital, and are
governed by the laws of California.
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IN WITNESS WHEROF, each of the parties has executed this Agreement as
of the date first set forth above.
"eCHEX"
eCHEX, Inc., a California corporation
Dated:___________________ By: _______________________________________
Xxxxxxxxx Xxxxxx, President & Chairman
"MBI"
XXXXXX BEAUMONT, INC., a Nevada corporation
Dated:___________________ By: _______________________________________
Xxxxx Xxxxxx, Chief Executive Officer
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