Exhibit 10.13
In the Matter of an Arbitration under the
Arbitrations Xxx, 0000, S.O. 1991, c.17
BETWEEN:
BESTNET COMMUNICATIONS CORP. Plaintiff
- and -
SOFTALK INC. Defendant
MINUTES OF SETTLEMENT
WHEREAS on April 23, 1999 BestNet Communications Corp. ("BestNet") entered into
a License Agreement whereby Softalk Inc. ("Softalk") granted BestNet a licence
to market Softalk's intellectual property and Softalk transferred certain beta
accounts to BestNet and whereas the agreement was amended and restated on July
30, 1999 and further amended on October 25, 1999 (collectively hereinafter
"Licence Agreement")
AND WHEREAS on August 6, 1999 BestNet entered into a loan agreement with Softalk
whereby BestNet agreed to loan to Softalk up to US$2,000,000.00 (:Loan
Agreement")
AND WHEREAS on October 25, 1999 BestNet, Softalk and Interpretel (Canada) Inc.,
a wholly owned subsidiary of BestNet, entered into a Purchase Agreement whereby
BestNet would receive from Softalk certain products and beta accounts for use in
the transmission of voice, data and fax using Softalk's intellectual property as
contemplated under the License Agreement ("Purchase Agreement")
AND WHEREAS on June 14, 2000 BestNet and Softalk entered into a Product
Customization and Maintenance Agreement whereby Softalk would customize
proprietary software for BestNet and carry out certain Projects as defined in
the agreement ("Customization Agreement")
AND WHEREAS on September 12, 2002, Softalk turned over the monitoring and
maintenance of the BestNet network to BestNet;
AND WHEREAS on September 13, 2002, BestNet commenced an application in the
Ontario Court of Justice (Commercial List) under Court File number
02-CV-235933CM1, and moved for, and was granted, an order requiring Softalk to
continue to monitor and maintain BestNet's network until arrangements for an
orderly transition of those services could be made and requiring the delivery of
documents necessary to assume the monitoring and maintenance of the BestNet
network;
AND WHEREAS BestNet commenced a claim in accordance with the Arbitrations Act
for certain relief as against Softalk;
AND WHEREAS thereafter, Softalk commenced a counterclaim in accordance with the
Arbitration Act for certain relief as against BestNet;
AND WHEREAS on consent of the parties hereto Xx. Xxxx Xxxxx was appointed as the
arbitrator to arbitrate the above noted claim and counterclaim;
AND WHEREAS Softalk brought a motion in the arbitration proceedings which came
before Xx. Xxxx Xxxxx on February 11, 2003 resulting in an interim interlocutory
order granting, inter alia, that all commissions due and owing from June 2002 by
BestNet to Softalk shall be paid forthwith into a separate trust account at
WeirFoulds LLP and which funds are not to be paid out other than by further
Order of Xx. Xxxx Xxxxx;
AND WHEREAS the parties wish to settle all outstanding issues between them,
including those arising out of the Licence Agreement, Purchase Agreement, Loan
Agreement and Customization Agreement, Court File No. 02-CV-235933CM1, the claim
and the counterclaim commenced under the Arbitrations Act, and the Order of Xx.
Xxxx Xxxxx dated February 11, 2003.
NOW THEREFORE, in consideration of the mutual covenants hereinafter described
and in consideration of other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the parties hereto, the parties
hereby agree to settle all matters on the following terms and conditions:
1. The parties agree that the foregoing recitals are true.
Obligations under the Loan Agreement
2. BestNet agrees to release its claim against Softalk under the Loan Agreement
for payment of principal and interest in the amount of $1,589,768.21.
Obligations under the License Agreement
3. BestNet agrees to release its claim against Softalk for rights to source code
and future products as outlined and defined in the License Agreement. Further,
BestNet accepts the BestNet Network as delivered by Softalk on September 12,
2002.
4. Softalk agrees to release its claim for payment on the outstanding invoices
as set out in paragraph 63(a) of the counterclaim.
5. Softalk agrees to accept payment of US $27,709.42 in full and final
satisfaction of its present and future claim to commissions under the Licence
Agreement. Such payment to be made forthwith following execution of these
Minutes of Settlement from the trust account at Xxxx Xxxxxx LLP to Softalk Inc.
6. BestNet agrees to give up its claim to any future communications software
under the Amended and Restated Licence Agreement. BestNet shall be entitled to
continued commercial exclusivity and individual non-exclusivity over current
Softalk products in accordance with the terms of the Amended and Restated
License Agreement. For greater clarity, this shall include the following
products that make up the Bestnetcall network as delivered to BestNet on
September 12, 2002:
(a) WebCall
(b) Webconferencecall
(c) Desktop
(d) Pda call
(e) Callme
7. BestNet agrees to give up any and all claims to the SMS calling service as
developed by Softalk for Internet Operator.
Obligations under the Purchase Agreement
8. Softalk agrees to release to BestNet all of the outstanding warrants in
BestNet granted Softalk.
9. Bestnet acknowledges that Softalk currently has 3.8 million restricted shares
in BestNet. BestNet agrees to give an irrevocable direction to American Stock
Transfer to release these shares at the rate of 100,000 shares per month over 19
months, commencing September 1, 2003. Softalk shall have the right to accrue
unsold shares which remain unsold and to sell such shares thereafter at its
discretion.
10. The remaining 1.9 million shares held by Softalk will be returned by Softalk
to the BestNet Treasury.
11. On the successful enforcement of the US Patent No. 6,188,683 by BestNet and
upon settlement or other final determination of any enforcement proceeding,
Softalk is to receive 25% of the gross proceeds of any such infringement
recoveries or damages obtained by BestNet.
Housekeeping - Implementing Settlement
12. The parties agree to not interfere in any way with the business and affairs
of each other.
13. Subject to the right of each party to seek enforcement of the provisions of
the Minutes of Settlement, neither party shall disparage the other.
14. The parties agree to take all reasonably necessary steps and to act in good
faith to achieve the goals of these Minutes of Settlement.
15. The parties agree to execute full and final releases, in the forms attached
hereto as Schedule "A" and "B". The parties agree that such releases shall
forthwith be delivered to each of WeirFoulds LLP and Xxxxxx Xxxxxx, Esquire,
upon receipt of executed Minutes of Settlement.
16. The parties agree to execute a Consent Order dismissing the claim and
counterclaim in the Arbitration on a without cost basis, in the form attached
hereto as Schedule "C"
17. The parties agree to execute a Consent Order dismissing the application
commenced under Court file No. 02-CV-235933CM1, on a without cost basis, in the
form attached hereto as Schedule "D"
18. The parties agree that each party is entitled to the return of their
retainer deposit provided to Xx. Xxxx Xxxxx under the Arbitration.
19. These Minutes of Settlement shall be binding upon the parties hereto and
their respective parent, subsidiary, affiliate and related companies, heirs,
executors, administrators, successors, assigns, directors, officers, agents,
shareholders, employees and other legal representatives.
20. These Minutes of Settlement may be executed in counterparts and all such
counterparts shall for all purposes constitute one agreement, providing each of
the parties has executed at least one counterpart and each shall be deemed to be
an original, notwithstanding that the parties are not signatory to the same
counterpart. Signatures delivered by telecopier or facsimile shall be deemed to
be original signatures for the purpose of these Minutes of Settlement.
21. These Minutes may be amended only by a further agreement in writing.
DATED this: day of September, 2003 SOFTALK INC.
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Per: Xxxxxxxxxxx Xxxx
I have authority to bind the Company
DATED this day of September, 2003 BESTNET COMMUNICATIONS CORP.
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Per: Xxxxxx X. Xxxxxxxxx
I have authority to bind the Company
