EXHIBIT 10.26
RELEASE AND SETTLEMENT AGREEMENT
This Release and Settlement Agreement ("Settlement Agreement") is made and
entered into effective as of April 12, 2000, by and between Intrex Data
Communications Group, Suite 1400, 0000 X. Xxxxxxx Xxxxxx, Xxxxxxxxx, X.X. X0X
0X0, Xxxxxx (referred to as "Company"), and entrenet Group, LLC, 0000 Xxxxxxxxxx
Xxxx., Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000 (referred to as "entrenet").
RECITALS
A. Company and entrenet entered into an Engagement Agreement dated April
12, 1999, whereby entrenet agreed to perform certain services for
Company (hereinafter referred to as the "Engagement Agreement").
B. As part of the services provided to the Company by entrenet under the
Engagement Agreement, entrenet introduced FiberChem, Inc. to the
Company and has advised the Company related to a merger with
FiberChem, Inc. which is pending closing (hereinafter referred to as
the "Merger").
C. Disputes as to the amounts due to entrenet by Company under the
Engagement Agreement as well as disputes regarding Convertible Notes
and warrants for the acquisition of stock in Company pursuant to the
Engagement have arisen between Company, and entrenet (the "Disputes").
D. The purpose of this Settlement Agreement is to resolve the disputes
between the Company and Entrenet and between Entrenet & the company
E. The Settlement Agreement allows the parties to avoid substantial
expenditures, the burden of further negotiations, and the likelihood
of arbitration or litigation, all on the terms and conditions set
forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the payments, mutual covenants, warranties
and representations set forth below, the parties hereto do hereby agree to
settle the Disputes among them on the following terms and conditions:
1. SETTLEMENT SUBJECT TO THE COMPLETION OF MERGER. This Settlement
Agreement shall not become effective and the Engagement Agreement shall remain
in effect unless and until the consummation of the Merger which is currently
pending.
2. ACKNOWLEDGED AMOUNT OWED. The parties acknowledge and agree that
upon the completion of the Merger the entire amount due under the Engagement
Agreement from Company to entrenet is $3,557.10 in cash, 3,000,000 shares of
FiberChem, Inc. Common Stock, a 10% Subordinated Convertible Note in the amount
of $126,500 ($115,000 principal plus interest of $11,500 through April 11, 2000)
convertible into FiberChem, Inc. Common Stock at a conversion
price of $0.185 per share, and a four year Warrant to purchase 960,000 shares of
FiberChem, Inc. Common Stock at the price of $0.185 per share (collectively, the
"Debt"). Payment of the Debt will result in full payment and full satisfaction
of all amounts and obligations due entrenet from Company under the Engagement
Agreement.
3. TERMINATION OF ENGAGEMENT AGREEMENT. Upon consummation of the
Merger and payment of the Debt described in paragraph 2 to entrenet or its
assigns, the Engagement Agreement shall be deemed terminated and void effective
as of the Merger date. Thereafter, no party shall have any further obligation or
liability, whether accrued or potentially to accrue under the Engagement
Agreement, including but not limited to any further obligation by Company to
entrenet or its affiliates for (i) the payment of any monies to entrenet under
the Engagement Agreement or (ii) the issuance of any Company equity.
4. MUTUAL RELEASE. Except for the provisions of this Settlement
Agreement, effective as of the Merger date, all parties to this Setttlement
Agreement on their own behalf and on behalf of their respective representatives,
agents, servants, employees, heirs, successors, administrators, executors,
attorneys, co-partners, co-venturers, insurers, stockholders, predecessors,
officers, directors, shareholders and assigns, hereby forever releases and
discharges all other parties to this Agreement and each of their respective
representatives, agents, servants, employees, officers, administrators,
executors, co-partners, co-venturers, directors, shareholders, partners, heirs,
successors, assigns, insurers, predecessors, and attorneys of and from any and
all present and future obligations (accrued or unaccrued), claims, demands,
actions, causes of actions, debts, liabilities, agreements, or losses of any
type, whether known or unknown, suspected or unsuspected, fixed or contingent,
which have arisen or may hereafter arise out of or are in any way connected with
any of the following: any claim to monies owed by or equity ownership or rights
to acquire equity ownership in Company, the Engagement Agreement, and the
Disputes (collectively, the "Released Claims").
5. NO DISPARAGEMENT AND COVENANT NOT TO XXX. All parties to this
Agreement shall refrain from making any public statements or statements to third
parties which demean any of the other parties to this Agreement or which call
into question the ethics or competence of any of the other parties to this
Agreement. All parties to this Agreement covenant and agree never to commence,
voluntarily aid in any way or prosecute or participate in any way in any action
or proceeding based upon the Released Claims. If any such action or proceeding
is commenced, this Settlement Agreement may be pleaded as a full and complete
defense thereto.
6. SECTION 1542. All parties to this Agreement agree that the waivers
and releases provided for in this Settlement Agreement shall be effective as a
full and final release of and from all matters set forth in this Settlement
Agreement, and, in furtherance of this intention, each party hereby acknowledges
and agrees that it is familiar with and has been advised by legal counsel
concerning the legal effect of California Civil Code Section 1542, which
provides as follows:
A general release does not extend to claims that the creditor does not
know or suspect to exist in his favor at the time of executing this
release, which if known by him, must have materially affected his
settlement to debtor.
7. ADVICE OF COUNSEL. All parties to this Settlement Agreement being
aware of, and having been advised by legal counsel as to the significance and
legal effect of Section 1542 of the California Civil Code, hereby expressly
waives and relinquishes any and all rights and benefits it may have thereunder
or under any other statute or common law principle of similar effect with
respect to the waiver and release provided for in this Settlement Agreement.
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8. UNKNOWN FACTS. All parties to this Settlement Agreement hereby
further acknowledge that they are aware that they may hereafter discover facts
in addition to or different from those which they now know or believe to be true
with respect to the subject matter of this Settlement Agreement, but they agree
that it is each party's intention fully, finally, and forever to settle and
release all of the matters which are the subject of the waiver and release
provided for herein, notwithstanding the discovery hereafter of any additional
or different facts existing as of the date of this Settlement Agreement.
9. AFFIRMATIVE COVENANTS. Upon execution of this Settlement Agreement
by all parties, Company shall deliver $3,557.10 in cash to entrenet and upon
consummation of the Merger the Company shall deliver to entrenet or its assigns
the remainder of the Debt as described in Paragraph 2, collectively as full
payment and satisfaction for all obligations under the Engagement Agreement.
10. WARRANTIES AND REPRESENTATIONS. Each of the parties hereto
represents and warrants that:
a. It has the right and authority to enter into and execute this
Settlement Agreement;
b. It has not sold, assigned, transferred, conveyed,
hypothecated, encumbered or otherwise disposed of any of its rights
hereunder;
c. It has been represented by independent legal counsel of its
own choice in connection with the negotiation and execution of this
Settlement Agreement and has had adequate opportunity to undertake
whatever due diligence or investigation it deemed necessary to enter
into this Settlement Agreement; and
d. It has not commenced any litigation pending with respect to
the facts, circumstances, matters or events which are the subject
matter hereof except as expressly disclosed herein, and it has not
pledged said rights as security for the performance of any obligation
or otherwise encumbered said rights.
11. NO ADMISSION OF LIABILITY. Nothing in this Settlement Agreement
constitutes an admission of liability, responsibility or the merit or lack of
merit of any claim or defense on the part of entrenet or the Company.
12. MISCELLANEOUS.
a. ADDITIONAL DOCUMENTS. Each of the parties agrees to execute
and deliver, at the request of the other parties, any and all other
documents or other written instruments as may be reasonably necessary
to effectuate this Settlement Agreement.
b. APPLICABLE LAW. This Settlement Agreement shall be governed by
and construed in accordance with the laws of the State of California
applicable to contracts between California residents entered into and
to be performed entirely within the State of California.
c. ATTORNEYS' FEES COSTS/BREACHES. In the event either party
hereto engages the services of an attorney to bring suit to enforce,
interpret, or otherwise construe the whole or any part of this
Agreement, or for damages on account of any breach of covenant
contained herein, or to quiet title, or to enforce any other claim or
cause of action arising
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out of the circumstances surrounding the execution of this Agreement,
the prevailing party in any such litigation shall be entitled to
recover from the other, reasonable attorneys fees and costs incurred
therein as part of any judgment awarded by the court in which such
litigation is determined.
d. COUNTERPARTS. This Settlement Agreement may be executed in
separate counterparts, each of which may be executed by less than all
of the parties, each of which shall be enforceable against the parties
actually executing such counterparts, and all of which together shall
constitute one instrument.
e. DESCRIPTIVE HEADINGS. The headings used herein are descriptive
only and for the convenience of identifying provisions, and are not
determinative of the meaning or effect of any such provisions.
f. ENTIRE AGREEMENT. This Settlement Agreement constitutes the
entire agreement and understanding between the parties with respect to
the subject matters herein and therein, and shall supersede and
replace any prior agreements and understandings, whether oral or
written, by and among them with respect to such matters. The
provisions of this Settlement Agreement may be waived, altered,
amended or repealed in whole or in part only upon the written consent
of all parties to this Settlement Agreement.
g. NOTICES. All notices, requests, demands, instructions or other
communications required or permitted to be given under this Settlement
Agreement shall be in writing and directed to the parties at the
address set forth below. Such communications shall be deemed to have
been received upon delivery, if delivered personally. If given by
prepaid telegram, or if mailed first-class, postage prepaid, or if
mailed by registered or certified mail, return receipt requested, such
communications shall be deemed to have been received seventy-two (72)
hours after such dispatch. Either party hereto may change the address
to which such communications are to be directed by giving written
notice to the other party hereto of such change in the manner above
provided.
IF FOR COMPANY:
Intrex Data Communications Group
Xxxxx X. Xxxxxxx
Chief Executive Officer
Xxxxx 0000, 0000 X. Xxxxxxx Xxxxxx
Xxxxxxxxx, X.X. X0X 0X0
FAX - 000-000-0000
EMAIL - xxxxxxxx@xxxxxxxxx.xxx
IF FOR FIBERCHEM:
FiberChem, Inc.
Xxxxxxxx X. Xxxxxx
Chief Executive Officer
0000 Xxxxx Xxxxx
Xxxxxxxx X Xxx Xxxxx, XX 00000
FAX - (000) 000-0000
Email - Xxxxxxxx@xxx.xxx
IF FOR ENTRENET:
entrenet Group, LLC
Xxxx Xxxxxxxxxx
Chief Legal & Tax Officer
0000 Xxxxxxxxxx Xxxx., Xxxxx 000
Xxxxx Xxxx, XX 00000
Fax 000-000-0000
Email xxxx@xxxxx.xxx
h. SEVERABILITY. If for any reason any provision of this
Settlement Agreement shall be determined to be invalid or inoperative,
the validity and effect of the other provisions hereof shall not be
affected thereby, provided that no such severability shall be
effective if it causes a material detriment to any party.
i. SUCCESSORS AND ASSIGNS. Subject to any provisions herein with
regard to assignment, all covenants and agreements herein shall bind
and inure to the benefit of the respective heirs, executors,
administrators, successors and assigns of the parties hereto.
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j. SURVIVAL. The representations, warranties, covenants and
agreements made herein shall survive the execution and delivery at
this Settlement Agreement.
k. CONSTRUCTION. The parties hereto and their counsel have
reviewed this Settlement Agreement and specifically agree that any
rule of construction, to the effect that ambiguities are to be
resolved against the drafting party, shall not apply to the
interpretation of this Settlement Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Settlement Agreement
effective as of the date first written above.
CAUTION: THIS AGREEMENT CONTAINS A RELEASE. READ BEFORE SIGNING.
INTREX DATA COMMUNICATIONS GROUP ENTRENET GROUP, LLC
By: /s/ XXXXX X. XXXXXXX By: /s/ XXXX XXXXXXXXXX
------------------------------- ---------------------------------
Xxxxx X. Xxxxxxx Xxxx Xxxxxxxxxx
Chief Executive Officer Chief Legal and Tax Officer
Date Executed: May 30, 2000 Date Executed: May 25, 2000
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FIBERCHEM, INC.
By: /s/ XXXXXXXX X. XXXXXX
-------------------------------
Xxxxxxxx X. Xxxxxx
Chief Executive Officer
Date Executed: May 31, 2000
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