SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release (this "Agreement") is entered into
this 20th day of March, 2004, by and between Reality Wireless Networks, Inc., a
Nevada corporation ("RWNT"), and Xxxxxxx Communication, LLC, a California
limited liability company ("Xxxxxxx"). RWNT and Xxxxxxx shall be referred to
collectively herein as the "Parties."
WITNESSETH:
WHEREAS, Xxxxxxx alleges that it is currently owed approximately
$14,079.00 by RWNT (the "Outstanding Debt") in connection with services rendered
by Xxxxxxx to Dicom Imaging Systems, Inc., the predecessor to RWNT (the
"Services").
WHEREAS, Xxxxxxx, in connection with its allegation that it is owed the
Outstanding Debt by RWNT for the Services, filed a complaint in the Superior
Court of California, County of Santa Xxxxxxx, against RWNT, on or around October
24, 2003, case number: 103 CV007768, alleging breach of contract and unjust
enrichment and seeking damages of $9,170.47, 18% interest from the date of June
28, 2001 and attorney's fees of $660.00 (the "Suit").
WHEREAS, RWNT and Xxxxxxx desire to amicably settle, compromise and
resolve any and all controversies and claims between themselves, including, but
not limited to, all controversies and claims between themselves with respect to
the Outstanding Debt, the Services and the Suit, to avoid the burden and expense
of arbitration and/or litigation.
WHEREAS, in connection with the resolution of such matters, Xxxxxxx shall
provide RWNT with (i) a full release and settlement, and (ii) a Stipulation for
Entry of Judgment Upon Default, a copy of which is attached hereto as Exhibit A
(the "Stipulation"), in exchange for the Cash (defined in Section 1 below) in
accordance with the terms hereinafter set forth.
NOW, THEREFORE, it is the desire of the Parties to state in writing the
details of their agreements. For money paid and received and other valuable
consideration between the Parties, it is mutually agreed as follows:
1. Settlement of Claims against and Release of RWNT. In exchange for the
payment by RWNT to Xxxxxxx of $6,0001 (the "Cash"), Xxxxxxx, on behalf of
itself, its employees, affiliates and assigns, hereby fully, forever,
irrevocably and unconditionally releases, remises and discharges RWNT and each
of its former, current and future officers, directors, stockholders, attorneys,
agents, spouses, administrators, employees and all persons acting by, through,
under, or in concert with them from any and all claims, charges, complaints,
demands, actions, causes of action, suits, rights, debts, sums of money, costs,
accounts, reckonings, covenants, contracts, agreements, promises, doings,
omissions, damages, executions, obligations, liabilities, and expenses
(including attorneys' fees and costs), of every kind and nature, known or
unknown, which Xxxxxxx ever had or
(1) The Cash shall be paid as follows: One Thousand Dollars ($1,000) shall
be paid to Xxxxxxx on or before the 25th day of each month for six (6) months
following the execution of this Agreement, with the first payment being made on
March 25, 2004, and the final payment being made on August 25, 2004.
now has against RWNT, including, but not limited to, all claims arising out of
the Outstanding Debt, the Services and the Suit, all common law claims
including, but not limited to, actions in tort, defamation, breach of contract,
and any claims under federal, state or local statutes or ordinances not
expressly referred to above.
2. Representations and Warranties of the Parties.
2.1 Authority. Each of the Parties has full power and authority to
enter into this Agreement. All action on the part of each of the Parties
necessary for the authorization, execution and delivery of this Agreement, the
performance of all obligations of each of the Parties hereunder has been taken,
and each of the Parties has all requisite power and authority to enter into this
Agreement.
2.2 Consents and Approvals; No Conflict. The execution and delivery
of this Agreement by each of the Parties does not, and the performance of this
Agreement by the Parties will not, require any consent, approval, authorization
or other action by, or filing with or notification to, any governmental or
regulatory authority. The execution, delivery and performance of this Agreement
by the Parties does not (i) conflict with or violate the charter or by-laws,
partnership or other governing documents of any of the Parties, or (ii) conflict
with or violate any law, rule, regulation, order, writ, judgment, injunction,
decree, determination, contract or award applicable to any of the Parties.
2.3 Effectiveness of Representations and Warranties. Each of the
Parties' representations and warranties contained in this Agreement are true and
correct.
3. Miscellaneous Provisions.
3.1 This Agreement constitutes the complete and exclusive agreement
of the Parties.
3.2 The Parties understand that this Agreement constitutes a
compromise and settlement of disputed claims. No action taken by the Parties
hereto, or any of them, either previously or in connection with this Agreement
shall be deemed to be (a) an admission of the truth or falsity of any claims
heretofore made or (b) an acknowledgement or admission by either party of any
fault or liability whatsoever to the other Party or to any third party.
3.3 Each of the Parties declares and represents that no promise,
inducement or agreement which is not specifically provided in this Agreement has
been made by any Party to this Agreement; that this Agreement contains the
entire agreement among the Parties; and that the terms of this Agreement cannot
be modified except in writing signed by all Parties hereto.
3.4 Each of the Parties agrees not to disclose to or discuss with
any person, except as where such disclosure may be required by law, court order,
government agency request or subpoena, or in connection with a legal proceeding,
the substance of this Agreement or matters relating to any act or omission of
any Party in connection with any other Party.
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3.5 This Agreement shall be construed, interpreted and applied in
accordance with the substantive laws of the State of Washington, without
reference to its conflicts of law rules.
3.6 Any dispute between the Parties pertaining to this Agreement
shall be resolved through binding arbitration conducted by the American
Arbitration Association. The Parties agree that any arbitration proceeding shall
be conducted in Seattle, Washington, and consent to exclusive jurisdiction and
venue there. The award of the arbitrator(s) shall be final and binding, and the
Parties waive any right to appeal the arbitral award, to the extent that a right
to appeal may be lawfully waived. Each Party retains the right to seek judicial
assistance (a) to compel arbitration, (b) to obtain injunctive relief and
interim measures of protection pending arbitration, and (c) to enforce any
decision of the arbitrator(s), including but not limited to the final award.
3.7 No Party may assign any of its rights under this Agreement
without the prior consent of the other Parties, which shall not be unreasonably
withheld. Subject to the preceding sentence, this Agreement shall apply to, be
binding in all respects upon, and inure to the benefit of the successors and
permitted assigns of the Parties. Nothing expressed or referred to in this
Agreement shall be construed to give any person other than the Parties to this
Agreement any legal or equitable right, remedy, or claim under or with respect
to this Agreement or any provision of this Agreement. This Agreement and all of
its provisions and conditions are for the sole and exclusive benefit of the
Parties to this Agreement and their successors and assigns.
3.8 All notices, demands and communications hereunder shall be in
writing and personally delivered or sent by first class mail, certified or
registered, postage prepaid, return receipt requested, addressed to the parties
at the addresses set forth below, or at such other address as any Party shall
have furnished to the other party in writing, or shall be given by telegram,
telex, facsimile transmission, overnight courier or hand delivery, in any case
to be effective when received, provided that actual receipt shall constitute
notice regardless of method of delivery.
If to RWNT: Reality Wireless Networks, Inc.
0000 Xxxxx Xxxxx xxxx
Xxx Xxxxxx, XX 00000
(000) 000-0000 tel
With a copy to: Xxxxx X. Xxxx
The Xxxx Law Group, PLLC
000 Xxxxxx Xxx., Xxxxx 0000
Xxxxxxx, XX 00000
If to Xxxxxxx: Xxxxxx X. Xxxxx, Esq.
Law Offices of Xxxxxx X. Xxxxx
0000 Xxx Xxxxxx
Xxx Xxxx, XX 00000
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3.9 If any term or provision of this Agreement or any application
thereof shall be invalid or unenforceable, such term or provision shall be
deemed to be severed and the remainder of this Agreement and any other
application of such term or provision shall not be affected or invalidated
thereby.
3.10 This Agreement may be executed by facsimile and in one or more
counterparts, all of which taken together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of
the date first above written.
REALITY WIRELESS NETWORKS, INC.
--------------------------------
Name: Xxxxx Xxxxxxx
Title: Chief Executive Officer
XXXXXXX COMMUNICATIONS, LLC
--------------------------------
Name:
Title:
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Exhibit A
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Stipulation for Entry of Judgment Upon Default
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