EXHIBIT 4.12
SETTLEMENT AND GENERAL RELEASE
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THIS SETTLEMENT AND GENERAL RELEASE ("Agreement") is effective as of
August 13, 2003 ("Effective Date") between
GRAL, Inc. ("GRAL") on the one side, and netGuru, Inc. ("netGuru") on the other
side, all of whom may be hereafter be referred to as the "Parties."
WHEREAS, a dispute has arisen regarding a Stock Purchase Agreement
dated March 27, 2000 and a letter stock buy-back agreement dated June 15, 2001
entered into between the Parties whereby GRAL contends that it is owed
US$271,800.00, plus interest, and netGuru disputes such contention claiming
nothing is owed (the "Dispute").
WHEREAS, the Parties wish to resolve the Dispute. By entering into this
Agreement, neither Party admits any liability to the other.
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, and in consideration of the mutual promises,
covenants and conditions herein contained, the Parties agree as follows:
1. STOCK SETTLEMENT PAYMENT: netGuru shall issue 32,004 shares of its
common stock in netGuru as soon as practicable after execution of this Agreement
by all Parties. GRAL shall receive twelve (12) share certificates in the
following respective amounts - twelve (12) respective certificates for 2,667
shares. For a period of twelve (12) months after effectiveness of the
registration statement, GRAL shall be entitled to sell no more than one-twelfth
of its respective shares in each month. GRAL acknowledges and understands that
(a) the shares to be issued will be "restricted securities" for purposes of
federal and state securities laws and may not be sold, transferred or
hypothecated in the absence of registration or qualification under those
securities laws, or an exemption from registration or qualification; and (b) the
share certificates will bear a restrictive legend evidencing the foregoing. GRAL
further acknowledges that it has received and had an opportunity to review
netGuru's Form 10-KSB for the fiscal year ended March 31, 2003, as filed with
the Securities and Exchange Commission.
2. REGISTRATION. As soon as practicable after issuance of the shares
described above, netGuru shall file a registration statement on Form S-3 with
the Securities and Exchange Commission registering for resale to the public the
shares issued to GRAL hereunder. All costs associated with the registration
shall be borne by netGuru. GRAL shall provide all information regarding itself
as the selling shareholder that netGuru may reasonably request in connection
with the preparation and filing of the registration statement. GRAL agrees to
abide by all provisions of the S-3 registration statement, including, but not
limited to, the restrictions on the manner of sale. netGuru will notify GRAL
upon receiving confirmation of effectiveness of the registration statement. Upon
effectiveness of the registration statement, GRAL may sell up to, but not more
than, 2,667 of the shares issued to him hereunder pursuant to the resale
prospectus that will be part of the registration statement, and GRAL agrees that
it will comply with the prospectus delivery requirements imposed by the
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Securities Act of 1933, as amended, in connection with any public resale of the
shares issued hereunder. GRAL understands and acknowledges that netGuru's
transfer agent will be so instructed, and that a "stop transfer" order will be
placed with the transfer agent to prevent re-sales exceeding that amount.
3. MAINTAINING REGISTRATION. netGuru hereby agrees to maintain the
effectiveness of the registration statement until such time as GRAL has sold all
of the securities set forth herein. Further, because netGuru intends to register
the stock herein pursuant to an S-3 Registration Statement, netGuru represents
and warrants that it is qualified to register these shares in this manner. In
the event netGuru is unable to register the shares pursuant to an S-3
Registration Statement, netGuru shall register said shares under an S-1
Registration Statement or any other form of registration it deems appropriate.
4. MUTUAL RELEASE. Except for the rights and obligations of the Parties
arising from this Agreement, the Parties hereby, for themselves, their
employees, agents, partners, members, representatives, successors and assigns,
discharge and release one another, their past and present employees, agents,
executors, administrators, trustees, heirs, spouses, attorneys, partners,
insurers, representatives, assigns, predecessors, successors and related
entities and/or subsidiaries, including, release each other from any and all
claims, damages, actions, judgments, obligations, attorneys' fees, indemnities,
subrogations, duties, demands, controversies and liabilities of every nature at
law or in equity, liquidated, or unliquidated, known or unknown, matured or
unmatured, foreseeable or unforeseeable, which they had or have arising out of
any circumstance, thing, or event alleged, or arising out of the dispute.
5. WAIVER OF CIVIL CODE SECTION 1542. The Parties agree to waive the
provisions of California Civil Code Section 1542 and agree that the Parties'
releases set forth hereinabove extend to all claims of every kind, nature and
description whatsoever, known or unknown, suspected or unsuspected this release
covers all claims which the Parties know, as well as those claims that the
Parties do not know or suspect to exist in their favor at the time of executing
this release. Section 1542 states 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."
6. CONFIDENTIALITY. The Parties agree that they will keep all facts
relating to this Agreement and the dispute confidential and will not disclose
any portion of this Agreement or any facts relating to the dispute, unless
compelled by law or an order of a court.
7. ENTIRE AGREEMENT. This Agreement contains the sole, complete and
entire agreement and understanding of the Parties concerning the matters
contained herein and may not be altered, modified, or changed in any manner
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except by a writing duly executed by the Parties. No Party is relying on any
representations other than those expressly set forth herein. No conditions
precedent to the effectiveness of this Agreement exists, other than as expressly
provided for herein. There are no oral or written collateral agreements. All
prior discussions and negotiations have been and are merged, integrated into and
superseded by this Agreement.
8. NO LIABILITY. The Parties execute this Agreement for the sole
purpose of settling the matters involved in the Dispute, and it is expressly
understood and agreed, as a condition hereof, that this Agreement should not
constitute nor be construed to be an admission of the truth or correctness of
any claim asserted.
9. REPRESENTATION OF AUTHORITY. Each individual executing this
Agreement on behalf of any Party expressly represents and warrants that he/she
has authority to execute and thereby bind the Party on behalf of which he/she
executes this Agreement to the terms of this Agreement and agrees to indemnify
and hold harmless each other Party from any claim that such authority did not
exist
10. HEADINGS. The headings included in this Agreement are for
convenience only and do not limit, alter, or affect the matters contained in
this Agreement.
11. WAIVER. The delay or failure of a Party to exercise any right,
power or privilege hereunder, or failure to strictly enforce any breach or
default shall not constitute a waiver with respect thereto; and no waiver of any
such right, power, privilege, breach or default on any one occasion shall
constitute a waiver thereof on subsequent occasion unless clear and express
notice thereof in writing is provided.
12. ATTORNEYS' FEES UPON BREACH. If any action at law or in equity, or
any motion, is brought to enforce this Agreement, the prevailing Party shall be
entitled to all of its costs in bringing and prosecuting said action or motion,
including reasonable attorneys' fees.
13. APPLICABLE LAW. This Agreement shall be construed, interpreted and
enforced in accordance with and be governed by the laws of the State of
California. Additionally, the Parties consent to personal jurisdiction
exclusively in the state and federal courts located in Los Angeles County,
California with respect to any dispute, action, claim or proceeding arising out
of this Agreement.
14. ADVICE OF COUNSEL. The Parties represent that prior to the
execution of this Agreement they had the opportunity to seek the benefit of
independent legal counsel of their own selection regarding the substance of this
Agreement.
15. COSTS. The Parties to this Agreement agree to bear their own costs
and attorneys' fees in connection with the Dispute.
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16. WARRANTIES. The Parties, and each of them, represent and warrant to
the other Parties that (i) they, and each of them, have the sole right and
exclusive authority to execute this Agreement; and (ii) they have not sold,
assigned, transferred, conveyed or otherwise disposed of any claim, demand,
cause of action, obligation, damage or liability covered in this Agreement.
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which together constitute one single document.
18. TELEFACSIMILE SIGNATURES. This Agreement and any documents relating
to it may be executed and transmitted to any other party by facsimile, which
facsimile shall be deemed to be, and utilized in all respects as, an original
wet-inked document.
19. DATE OF EXECUTION. The Parties execute this Agreement on the date
set forth below effective as of the Effective Date first above set forth.
SO AGREED:
netGuru, Inc.
Dated: AUGUST 14, 2003 By: /s/ XXXXX X. XXX
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Xxxxx X. Xxx,
Chief Executive Officer
GRAL, Inc.
Dated: AUGUST 14, 2003 By: /s/ XXXXXXXX XXXXX
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Xxxxxxxx Xxxxx,
President
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