Settlement Agreement and Mutual Release - Byair Inc. f/k/a GW Com Inc., Intelecady Inc., James S. Lindsey and Align Technology Inc.
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release ("Agreement") is made and
entered into as of February 6, 2003, by and among GW Com, Inc., now known as
Byair, Inc. ("GW"), Intelecady, Inc. ("Intelecady"), James S. Lindsey
("Lindsey"), and Align Technology, Inc. ("Align").
I. RECITALS
1. On May 1, 2002, GW filed a complaint (the "Complaint") against Lindsey
and Align thereby initiating an action (the "Action") in the Santa Clara County
Superior Court numbered Case No. CV 807489.
2. On August 1, 2002, Lindsey filed a cross-complaint (the
"Cross-Complaint") in the Action against GW and Intelecady.
3. The Action arose out of a dispute between the parties relating to a
Lease (the "Lease") dated October 4, 1999 between Lindsey as Lessor and Golfpro
International, Inc. ("Golfpro") as Lessee for approximately 50,000 square feet
of space at 851 Martin Avenue, Santa Clara, California (the "Leased Premises");
a sublease (the "Sublease") dated April 17, 2000 between Golfpro as Sublessor
and GW as Sublessee for the Leased Premises; a Consent to Sublease (the
"Consent") dated on or about April 20, 2000 by and among Golfpro, GW, and
Lindsey; a Sub-Sublease (the "Sub-Sublease") dated July 27, 2000 between GW as
Sub-Sublessor and Align as Sub-Sublessee for a portion of the Leased Premises; a
proposed amendment (the "November Amendment") to the Sub-Sublease dated November
1, 2000 between GW and Align for an additional portion of the Leased Premises; a
proposed amendment (the "February Amendment") to the Sub-Sublease dated February
2001 between GW and Align for an additional portion of the Leased Premises. On
September 18, 2001, the United States Bankruptcy Court for the Northern District
of California approved Golfpro's Chapter 11 Plan of Reorganization including
Golfpro's assignment of its rights under the Lease, Sublease, and Consent to
Intelecady and Intelecady's assumption of the rights and obligations under such
agreements (the "Golfpro Assignment").
4. GW holds in an account the sum of $188,000.00 earmarked for Align and
representing a cash security deposit paid by Align to GW pursuant to the
Sub-Sublease (the "Cash Security Deposit") which Align asserts must be returned
to Align pursuant to Civil Code section 1950.7.
5. Lindsey has asserted claims against GW and Intelecady of approximately
S94,000.00 in connection with alterations to the Leased Premises that he asserts
were undertaken without his prior written consent.
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6. Align and Lindsey contend that each has incurred attorneys' fees and
costs in excess of $125,000 in connection with the Action.
7. Align filed a motion under Code of Civil Procedure section 1030 in the
Action to secure recovery of the attorneys' fees and costs incurred by Align in
connection with the Action and Lindsey contends that he was in the process of
preparing a similar motion under Code of Civil Procedure section 1030 at the
time of this Agreement.
8. The parties desire to resolve all claims and disputes related to the
Action, the Leased Premises, the Lease (except as set forth herein), the
Sublease, the Consent, the Sub-Sublease, the November Amendment, and the
February Amendment.
II. AGREEMENT
For good and valuable consideration, the parties agree as follows:
1. The Recitals are incorporated herein and made a part of this Agreement.
2. Intelecady hereby represents that Golfpro has assigned to it all of
Golfpro's rights under the Lease and the Sublease and that Intelecady is the
exclusive owner of any and all claims that Golfpro ever had under or relating to
the Lease, the Leased Premises, the Sublease, the Consent, the Sub-Sublease, the
November Amendment, or the February Amendment and that its releases herein are
effective to release Golfpro's claims to the same extent as they release
Intelecady's claims.
3. Intelecady and GW hereby represent that GW has assigned to Intelecady
all of GW's rights under the Lease and the Sublease and that Intelecady is the
exclusive owner of any and all claims that GW ever had under or relating to the
Lease, the Leased Premises, the Sublease, the Consent, the Sub-Sublease, the
November Amendment, or the February Amendment and that Intelecady's releases
herein are effective to release GW's claims to the same extent as they release
Intelecady's claims.
4. GW hereby represents that it is now known as Byair, Inc., and GW has the
authority to bind Byair, Inc. to the terms of this Agreement.
5. No later than 5:00 p.m., on Monday, February 10, 2003, GW shall pay to
Align the sum of $188,000 by wire transfer to Align or in the form of Cashier's
Check delivered to the attention of Roger George at Align's offices at 821
Martin Avenue, Santa Clara, California, as and for a return of the Cash Security
Deposit.
6. Concurrent with the execution of this Agreement, the parties hereto will
execute and cause to be filed a Request for Dismissal of the action in its
entirely with prejudice in the form attached hereto as Exhibit A.
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7. Except as to the obligations created by this Agreement, GW for itself
and for its current and former employees, members, partners, stockholders,
directors, officers, parents, subsidiaries, predecessors, affiliates,
successors, assigns, agents and attorneys, hereby does absolutely discharge and
release Lindsey and his current and former employees, members, partners,
stockholders, directors, officers, parents, subsidiaries, predecessors,
affiliates, successors, assigns, agents and attorneys, and Align and its current
and former employees, members, partners, stockholders, directors, officers,
parents, subsidiaries, predecessors, affiliates, successors, assigns, agents and
attorneys, from any and all liabilities, causes of action and claims which do or
may exist, whether known or unknown, suspected or unsuspected, including but not
limited to claims arising out of or in any way related to the Action, the
Golfpro Assignment, the Leased Premises, the Lease, the Sublease, the Consent,
the Sub-Sublease, the November Amendment, and the February Amendment (the "GW
Released Matters").
8. Except as to the obligations created by this Agreement, Intelecady for
itself and for its current and former employees, members, partners,
stockholders, directors, officers, parents, subsidiaries, predecessors,
affiliates, successors, assigns, agents and attorneys, hereby does absolutely
discharge and release Lindsey and his current and former employees, members,
partners, stockholders, directors, officers, parents, subsidiaries,
predecessors, affiliates, successors, assigns, agents and attorneys, and Align
and its current and former employees, members, partners, stockholders,
directors, officers, parents, subsidiaries, predecessors, affiliates,
successors, assigns, agents and attorneys, from any and all liabilities, causes
of action and claims which do or may exist, whether known or unknown, suspected
or unsuspected, including but not limited to claims arising out of or in any way
related to the Action, the Golfpro Assignment, the Leased Premises, the Lease,
the Sublease, the Consent, the Sub-Sublease, the November Amendment, and the
February Amendment (the "Intelecady Released Matters").
9. Except as to the obligations created by this Agreement and except as
provided in paragraph 11 herein, Lindsey for himself and for his current and
former employees, members, partners, stockholders, directors, officers, parents,
subsidiaries, predecessors, affiliates, successors, assigns, agents and
attorneys, hereby does absolutely discharge and release GW and its current and
former employees, members, partners, stockholders, directors, officers, parents,
subsidiaries, predecessors, affiliates, successors, assigns, agents and
attorneys, and Intelecady and its current and former employees, members,
partners, stockholders, directors, officers, parents, subsidiaries,
predecessors, affiliates, successors, assigns, agents and attorneys, from any
and all liabilities, causes of action and claims which do or may exist, whether
known or unknown, suspected or unsuspected, including but not limited to claims
arising out of or in any way related to the Action, the Golfpro Assignment, the
Leased Premises, the Lease, the Sublease, the Consent, the Sub-Sublease, the
November Amendment, and the February Amendment (the "Lindsey Released Matters").
10. Except as to the obligations created by this Agreement, Align for
itself and for its current and former employees, members, partners,
stockholders, directors, officers, parents, subsidiaries, predecessors,
affiliates, successors, assigns, agents and attorneys, hereby does absolutely
discharge and release GW and its current and former employees, members,
partners, stockholders, directors, officers, parents, subsidiaries,
predecessors, affiliates, successors,
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assigns, agents and attorneys, and Intelecady and its current and former
employees, members, partners, stockholders, directors, officers, parents,
subsidiaries, predecessors, affiliates, successors, assigns, agents and
attorneys, from any and all liabilities, causes of action and claims which do or
may exist, whether known or unknown, suspected or unsuspected, including but not
limited to claims arising out of or in any way related to the Action, the
Golfpro Assignment, the Leased Premises, the Lease, the Sublease, the Consent,
the Sub-Sublease, the November Amendment, and the February Amendment (the "Align
Released Matters").
11. Notwithstanding anything to the contrary in this Agreement, Lindsey is
not by this Agreement releasing his claims against Intelecady or GW for breach
of the Lease, the Sublease, or the Consent. Lindsey is hereby, however,
releasing Intelecady and GW from any claim that either or both are responsible
for the costs of removing from the Leased Premises alterations made to that
portion of the Leased Premises subject to the Align Sub-Sublease, including the
demising wall between such premises and the remaining Leased Premises, and
thereafter restoring such premises. Lindsey, GW, and Intelecady are concurrently
entering into another agreement entitled the "Lease Termination Agreement"
regarding the Lease, the Sublease, and the Consent and containing releases
thereto.
12. Each of the parties to this Agreement warrants that it has not
assigned, conveyed, granted, transferred, or otherwise disposed of any of the
claims released by such party pursuant to this Agreement.
13. Each party to this Agreement covenants and agrees that neither it nor
its current and former employees, members, partners, stockholders, directors,
officers, parents, subsidiaries, predecessors, affiliates, successors, assigns,
agents and attorneys will hereafter commence, maintain or prosecute any action
at law or otherwise, or assert any claim or charge against any other party or
such other partys' current and former employees, members, partners,
stockholders, directors, officers, parents, subsidiaries, predecessors,
affiliates, successors, assigns, agents and attorneys for damages or loss of any
kind or amount arising out of each party's Released Matters.
14. Each party to this Agreement acknowledges that it may hereafter
discover facts different from or in addition to those now known or believed to
be true regarding the subject matter of the above and agree that this Agreement
shall remain in full force and effect, notwithstanding the existence of any such
different or additional facts. Each party to this Agreement acknowledges that it
has been informed by its counsel of the provisions of Section 1542 of the Civil
Code, and each party hereby waives any and all rights which it have or may have
under the provisions of Section 1542 of the Civil Code as now worded and as
hereafter amended, which section presently reads as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO ANY 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."
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Each party waives and relinquishes any right or benefit which it has or may have
under any similar provision of the statutory or nonstatutory law of any
jurisdiction. Each party acknowledges that it is aware that it or its respective
attorneys and/or agents may hereafter discover facts in addition to or different
from those which it now knows or believes to exist with respect to the subject
matter of this Agreement, but that it is its intention hereby to fully, finally
and forever to settle and release all of its claims, disputes and differences,
known or unknown, suspected or unsuspected, which now exist or may exist
hereafter against each other party and such other party's current and former
employees, members, partners, stockholders, directors, officers, successors,
assigns, agents and attorneys, relating to the Released Matters, except as
provided for herein. This Release shall be and remain in effect as a full and
complete release as to the Released Matters notwithstanding the discovery or
existence of any such additional or different facts.
15. Each party to this Agreement shall execute whatever documents may be
necessary and appropriate to carry out the intent and purpose of this Agreement.
16. Nothing in this Agreement shall affect any party's right to conduct or
respond to discovery as to any matter in connection with any lawsuit or
proceeding.
17. This Agreement is for the sole purpose of settling the Released Matters
and it is expressly understood and agreed that this Agreement does not
constitute or evidence any admission of any party of any liability or the truth
of any of the Released Matters. Accordingly, nothing in this Agreement shall be
construed as an admission of liability or wrongdoing on the part of any of the
parties hereto.
18. This Agreement shall be binding upon and shall inure to the benefit of
the parties and their respective representatives, heirs, predecessors,
affiliates, successors and assigns.
19. In the event that any of the terms of this Agreement are found to be
unenforceable by a court of competent jurisdiction, the remainder of this
Agreement shall not be affected thereby and shall remain in full force and
effect.
20. This Agreement may be executed in any number of separate counterparts,
all of which, when taken together, shall constitute one and the same instrument,
admissible into evidence, notwithstanding the fact that all parties did not sign
the same counterpart. Delivery of an executed counterpart of this Agreement by
telefacsimile shall be equally as effective as delivery of a manually executed
counterpart hereof. Any party delivering an executed counterpart of this
Agreement by telefacsimile shall also deliver a manually executed counterpart
hereof, but the failure to deliver a manually executed counterpart hereof shall
not affect the validity, enforceability, and binding effect of this Agreement.
21. The parties acknowledge that they have entered into this Agreement in
reliance on their own independent investigation and analysis of the facts
underlying the subject matter of the Agreement, and that, in executing this
Agreement, no representations, warranties or promises of any kind have been made
directly or indirectly to induce them to execute this Agreement other
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than those that are expressly set forth herein, and that they have not relied on
any representations, warranties or promises of any kind other than those that
are expressly set forth herein.
22. The parties acknowledge to each other that each was advised and
represented by independent legal counsel of each party's own choice throughout
all of the negotiations which preceded the execution of this Agreement and that
each such party has executed this Agreement after being so advised or receiving
such advice. The parties acknowledge that each party has executed this Agreement
without reliance upon any promise or representation of any person or persons
acting for or on behalf of the other, except as expressly set forth in this
Agreement. Each party further acknowledges that such party and such party's
counsel has had an adequate opportunity to make whatever investigation or
inquiry it may deem necessary or desirable in connection with the subject matter
of this Agreement prior to the execution of this Agreement. Each party and such
party's attorney has read and approved the language of this Agreement. Each
party further acknowledges that this Agreement is the product of negotiation and
preparation by and between each party and each party's attorneys, expressly
waives the provisions of Civil Code section 1654, and acknowledges and agrees
that this Agreement shall not be deemed prepared or drafted by one party or the
other.
23. This is an integrated agreement and supercedes all prior
representations and agreements, if any, between the parties to this Agreement
and their legal counsel relating to the subject matter hereof. This Agreement
when executed contains the entire and only understanding between the parties
regarding the subject matter hereof. It may not be altered, amended or
extinguished, nor may any rights hereunder be waived, except by a writing which
expressly refers to this Agreement and is signed subsequent to the execution of
this Agreement by the parties to this Agreement. No course of dealing between
the parties, no usage of trade, and no parol or extrinsic evidence of any nature
shall be used or be relevant to supplement, explain, or modify any term or
provision of this Agreement or any supplement or amendment hereto.
24. The parties agree that each shall bear its own costs including
attorneys' fees in connection with the Action and the negotiation and
preparation of this Agreement.
25. The prevailing party (the "Prevailing Party") in any litigation,
arbitration, bankruptcy proceeding, or other formal or informal resolution
(collectively, a "Proceeding") of any claims brought by any party to this
Agreement against any other party to this Agreement based upon, arising from, or
in any way related to this Agreement or the transactions contemplated herein,
including without limitation contract claims, tort claims, breach of duty
claims, and all other common law or statutory claims (collectively, the
"Claims"), shall be entitled to recover from such other party all its reasonable
fees and costs incurred in connection with the Proceeding, including without
limitation all its reasonable attorneys' fees and costs, whether incurred by
in-house counsel or outside counsel and its reasonable expert witness fees and
costs (collectively, the "Fees and Costs"). The Prevailing Party shall also be
entitled to recover from such other party all its Fees and Costs incurred in
enforcing the judgment or award giving rise to the Prevailing Party's status as
the Prevailing Party.
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26. This Agreement shall be governed by, and construed in accordance with,
the internal laws of the State of California without regard to principles of
conflicts of law. Each party hereto hereby submits to the exclusive jurisdiction
of the state and Federal courts located in the County of Santa Clara, State of
California.
27. Each signatory to this Agreement warrants and represents that he/she is
the lawful agent of the entity for whom he/she executes this Agreement and that
he/she has full authority to bind its principal as to the matters set forth
herein.
The parties have read the foregoing and understand it and agree to the
terms set forth above.
SIGNATURES ON NEXT PAGE
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Dated: Feb 6, 2003 GW COM, INC.
a Delaware Corporation,
By: /s/ Raymond Chin
-------------------------------------------
Its: CEO
Dated: 2/06/03 INTELECADY, INC.
a California Corporation,
By: /s/ Ron Davies
-------------------------------------------
Its: PRESIDENT & CEO
Dated: 2/6/03 ALIGN TECHNOLOGY, INC.
a Delaware Corporation,
By: /s/ Illegible
-------------------------------------------
Its: Vice President, Legal Affairs
& General Counsel
Dated: 2/6/03 /s/ James S. Lindsey
-----------------------------------------------
James S. Lindsey
APPROVED AS TO FORM:
GRANT, GENOVESE & BARATTA, LLP
/s/ Rogers E. George
-----------------------------------------------
By: Rogers E. George
Attorneys for Intelecady, Inc. and GW Com, Inc.
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APPROVED AS TO FORM:
REHON & ROBERTS
A Professional Corporation
/s/ Lisa Roberts
-----------------------------------------------
By: Lisa C. Roberts
Attorneys for James S. Lindsey
BROBECK, PHLEGER & HARRISON, LLP
/s/ William W. Huckins
-----------------------------------------------
By: William W. Huckins
Attorneys for Align Technology, Inc.
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ATTORNEY OR PARTY WITHOUT ATTORNEY (Name and Address): TELEPHONE NO. FOR COURT USE ONLY
Gordon G. May (Bar # 167112) (949) 660-1600
Grant, Genovese & Baratta, LLP FAX NO.:
2030 Main Street, Suite 1600 (949) 660-6060
Irvine, California 92614
ATTORNEY FOR (Name) GW Com, Inc., Plaintiff/Cross-Defendant, and Intelecady,
Inc. Cross-Defendant
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Insert name of court and name of judicial district and branch court,
if any:
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA
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PLAINTIFF/PETITIONER: GW Com, Inc., a Delaware Corporation
DEFENDANT/RESPONDENT: James S. Lindsey and Align Technology, Inc., a
Delaware Corporation
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REQUEST FOR DISMISSAL CASE NUMBER:
[ ] Personal Injury, Property Damage, or Wrongful Death
[ ] Motor Vehicle [ ] Other
[ ] Family Law CV 807489
[ ] Eminent Domain
[X] Other (specify): Civil
--------------------------------------------------------------------------------
-- A conformed copy will not be returned by the clerk unless a method of return
is provided with the document. --
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1. TO THE CLERK: Please dismiss this action as follows:
a. (1) [X] With prejudice (2) [ ] Without prejudice
b. (1) [ ] Complaint (2) [ ] Petition
(3) [ ] Cross-complaint filed by (name): on (date):
(4) [ ] Cross-complaint filed by (name): on (date):
(5) [X] Entire action of all parties and all causes of action
(6) [ ] Other (specify):*
Date: February 6. 2003
Gordon G. May (SIGNATURE)
(TYPE OR PRINT NAME OF [X] ATTORNEY [ ] PARTY WITHOUT ATTORNEY)
Attorney or party without attorney for:
* If dismissal requested is of specified parties only, of [X] Plaintiff/Petitioner [ ] Defendant/Respondent
specified causes of action only, or of specified [ ] Cross-complainant
cross-complaints only, so state and identify the parties,
causes of action, or cross-complaints to be dismissed.
===================================================================================================================
2. TO THE CLERK: Consent to the above dismissal is hereby given.**
SEE ATTACHMENT A
Date:
--------------------------------------------------------------- -------------------------------------------------
(TYPE OR PRINT NAME OF [ ] ATTORNEY [ ] PARTY WITHOUT ATTORNEY) (SIGNATURE)
** If a cross-complaint--or Response (Family Law) seeking Attorney or party without attorney for:
affirmative relief-- is on file, the attorney for [ ] Plaintiff/Petitioner [ ] Defendant/Respondent
cross-complainant (respondent) must sign this consent if [ ] Cross-complainant
required by Code of Civil Procedure section 581(i) or (j)
===================================================================================================================
(To be completed by clerk)
3. [ ] Dismissal entered as requested on (date):
4 [ ] Dismissal entered on (date): as to only (name):
5. [ ] Dismissal not entered as requested for the following reasons (specify):
6. [ ] a. Attorney or party without attorney notified on (date):
b. Attorney or party without attorney not notified.
Filing party failed to provide
[ ] a copy to conform [ ] means to return conformed copy
Date: Clerk, by , Deputy
---------------------------
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Form Adopted by the REQUEST FOR DISMISSAL Code of Civil Procedure. (S) 581 e1 seq.
Judicial Council of California Cal Rules of Court, rules 383, 1233
982(a)(5)[Rev January 1 1997] Judicial Council Forms for HolDocs (TM)
Mandatory Forms
EXHIBIT A
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ATTACHMENT A
TO THE CLERK: Consent to the attached dismissal with prejudice of Santa Clara
County Case Number CV807489 as to the entire action, including all parties and
all causes of action, is hereby given.
GRANT, GENOVESE & BARATTA, LLP
By:
----------------------------------------------
Gordon G. May
Attorneys for Plaintiff and Cross-Defendant
GW Com, Inc. and Cross-Defendant
Intelecady, Inc.
BROBECK, PHLEGER & HARRISON, LLP
By:
----------------------------------------------
William W. Huckins
Attorneys for Defendant Align
Technology, Inc.
REHON & ROBERTS, APC
By:
----------------------------------------------
Lisa C. Roberts
Attorneys for Defendant and Cross-
Complainant James S. Lindsey