Settlement and Release Agreement - American Registrar & Transfer Co., YP.Net Inc. and Hudson Consulting Group Inc.
SETTLEMENT AND RELEASE AGREEMENT
This Settlement And Release agreement ("Agreement") effective as of the ___ day
of July, 2001, is made and entered into by and among American Registrar &
Transfer Company, a Utah Corporation ("ARTCO"); YP.Net, Inc., a Nevada
Corporation, formerly known as RIGL Corporation ("YPNT"); and Hudson Consulting
Group, Inc., a Nevada corporation ("Hudson"). YPNT and Hudson may hereinafter
collectively be referred to as "Defendants" and all entities, who execute this
Agreement shall be referred to collectively as the "Parties."
RECITALS
A. There is currently pending in the Third Judicial District Court For Salt
Lake County, State of Utah ("Court") an action in Interpleader commenced by
ARTCO, as Plaintiff, naming YPNT, Hudson and others as defendants, being
Civil No. 000902312 ("Pending Action").
B. The Parties desire to terminate the Pending Action pursuant to the terms
and conditions of this Agreement without further incursion or expense and
to settle all disputes existing between or among them alleged in the
pleadings filed in the Pending Action.
C. Certain other defendants named in the Pending Action, namely Bruce
Pritchett ("Pritchett"), Montana Capital International, Inc. ("Montana")
and Moore & Elrod, Inc. ("M&E") have failed to answer or otherwise file a
response to the Complaint filed in the Pending Action. Montana & M&R have
been duly served with the Complaint and may therefore be defaulted pursuant
to Utah law. The Complaint against Pritchett may be dismissed, as he has
not yet been served.
D. The Parties have voluntarily submitted the mediation of their claims to
Paul S. Felt, as Mediator in this matter, and met with the Mediator on July
16, 2001 in Salt Lake City, Utah, and agreed to settle all of their claims
arising out of or in connection with the allegations of the Complaint; and
this Agreement is the embodiment of their settlement verbally agreed upon
and accepted by the Mediator.
In the context of these Recitals (which are hereby incorporated as part of
this Agreement), and in consideration of the mutual promises of the parties and
other valuable consideration, IT IS AGREED AS FOLLOWS:
1. STIPULATION TO DISMISS. Upon execution of this Agreement and the
fulfillment of all Contingencies hereinafter enumerated, the Parties shall
execute and file with the Court a Stipulation Of Dismissal With Prejudice of the
Pending Action, substantially in the form attached hereto as Exhibit A, and
shall lodge a proposed Order to that effect, substantially in the form attached
hereto as Exhibit B.
2. SETTLEMENT OF CLAIMS.
(a) In full and final settlement of all claims of Hudson against YPNT,
arising out of or in connection with the Pending Action, YPNT agrees
to pay Hudson the sum of Eighty-Five Thousand Dollars ($85,000) in the
manner set forth in Paragraph 3 below.
(b) In full and final settlement of all claims of YPNT against Hudson,
arising out of or in connection with the Pending Action, Hudson shall
transfer to YPNT an aggregate of One Million, Four Hundred Twenty Five
Thousand Three Hundred and Thirty Four (1,425,334) shares of YPNT
Common Stock previously issued to Hudson by YPNT to wit:
CERTIFICATE NO. NUMBER OF SHARES
2634 50,000.
2635 50,000.
2636 50,000.
2637 50,000.
2638 50,000.
2639 50,000.
2640 50,000.
2641 50,000.
2642 50,000.
2643 50,000.
2644 40,000.
2789 56,951.
2834 385,716.
2851 442,667.
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TOTAL: 1,425,334 SHARES
<PAGE>
3. PAYMENT.
(a) Payment shall be made by Cashier's Check drawn on a State of Arizona
or federally chartered bank in the sum of $85,000 made payable to
Hudson Consulting Group, Inc.
(b) Payment by YPNT shall be made not later than ten (10) days following
performance of all Contingencies enumerated in Paragraph 10 below.
4. HUDSON RELEASE. Hudson, on behalf of itself and on behalf of its past,
present and future parent and subsidiary corporations, (if any), affiliates,
stockholders, officers, directors, partners, joint ventures, employees,
insurers, predecessors, successors, assigns, agents and representatives, does
hereby release and forever discharge YPNT and ARTCO and its past, present, and
future parent and subsidiary corporations, affiliates, stockholders, officers,
directors, partners, joint ventures, employees, insurers, predecessors,
successors, assigns, agents, representatives and attorneys from any and all
claims, demands, obligations, losses, causes of action, damages, penalties,
costs, expenses, attorneys' fees, liabilities, and indemnities of any nature
whatsoever, known or unknown, asserted or as yet undiscovered or unasserted,
that arise out of or relate to the issues and claims in the Pending Action. This
paragraph does not apply to any rights, duties or obligations arising out of
this Agreement.
5. YPNT RELEASE. YPNT, on behalf of itself and on behalf of its past,
present and future parent and subsidiary corporations, (if any), affiliates,
stockholders, officers, directors, partners, joint venturers, employees,
insurers, predecessors, successors, assigns, agents and representatives, does
hereby release and forever discharge Hudson and ARTCO and their past, present,
and future parent and subsidiary corporations, (if any), affiliates,
stockholders, officers, directors, partners, joint venturers, employees,
insurers, predecessors, successors, assigns, agents, representatives and
attorneys from any and all claims, demands, obligations, losses, causes of
action, damages, penalties, costs, expenses, attorneys' fees, liabilities, and
indemnities of any nature whatsoever, known or unknown, asserted or as yet
undiscovered or unasserted, that arise out of or relate to the issues and claims
in the Pending Action. This paragraph does not apply to any rights, duties or
obligations arising out of this Agreement.
6. ARTCO RELEASE. ARTCO, on behalf of itself and on behalf of its past,
present and future parent and subsidiary corporations, (if any), affiliates,
stockholders, officers, directors, partners, joint venturers, employees,
insurers, predecessors, successors, assigns, agents and representatives, does
hereby release and forever discharge Hudson and YPNT and their past, present,
and future parent and subsidiary corporations, (if any), affiliates,
stockholders, officers, directors, partners, joint venturers, employees,
insurers, predecessors, successors, assigns, agents, representatives and
attorneys from any and all claims, demands, obligations, losses, causes of
action, damages, penalties, costs, expenses, attorneys' fees, liabilities, and
indemnities of any nature whatsoever, known or unknown, asserted or as yet
undiscovered or unasserted, that arise out of or relate to the issues and claims
in the Pending Action. This paragraph does not apply to any rights, duties or
obligations arising out of this Agreement.
<PAGE>
7. INDEMNIFICATION. YPNT and Hudson agree to indemnify and save harmless
ARTCO against all costs, damages, attorney's fees, expenses and liabilities,
which it may incur or sustain in connection with its performance as "Escrow
Holder" under this Agreement or any court action arising therefrom and will pay
same on demand.
8. ESCROW HOLDER DUTIES.
(a) YPNT and Hudson agree that unless otherwise herein expressly provided,
ARTCO shall not be held liable for any action taken or omitted under
this Agreement, so long as it shall have acted in good faith and
without negligence, and shall be deemed to be acting under this
Agreement as an "Escrow Holder" only. ARTCO shall have no
responsibility to inquire into or determine the genuineness,
authenticity or sufficiency of any documents or instruments submitted
to it in connection with its duties hereunder. ARTCO shall be entitled
to deem the signatories of any document or instrument submitted to it
hereunder as being authorized to sign such documents or instruments on
behalf of the party submitting such documents or instruments, and
shall be entitled to rely upon the genuineness of signatures or such
signatories without inquiry and without requiring substantiating
evidence.
(b) This Agreement may be altered or amended only with the consent of YPNT
and Hudson and ARTCO.
(c) In the event of any disagreement between YPNT and Hudson resulting in
adverse claims and demands being made by them or any of them in
connection with or for the shares involved in or affected by this
Agreement, ARTCO shall refuse to comply with the demands of YPNT or
Hudson so long as such disagreement shall continue.
(d) In so refusing, ARTCO shall make no delivery or other disposition of
the shares or funds involved in or collected pursuant to this
Agreement, nor shall ARTCO become liable to YPNT or Hudson or either
of them for the failure of ARTCO to comply with the conflicting or
adverse demands of YPNT or Hudson, but may interplead the shares and
funds in a court having jurisdiction.
<PAGE>
9. COSTS AND EXPENSES.
(a) YPNT and Hudson shall pay its own expenses, including court costs,
legal and expert witness fees, incurred in the prosecution and defense
of the Pending Action, and incurred in the negotiation, preparation
and execution of this Agreement.
(b) YPNT and Hudson shall each pay the Mediator one-half (50%) of any and
all fees or costs assessed by the Mediator forthwith upon presentation
of his Statement.
10. REPRESENTATIONS.
(a) Except for the obligations of Hudson and YPNT arising out of and in
connection with their respective obligations pursuant to this
Agreement, there are no other outstanding contracts or agreements,
verbal or written, between them in connection with any matter or
thing, and more particularly relating to the business of YPNT, or the
issuance of YPNT shares to any person or legal entity.
(b) YPNT has at no time solicited Hudson to violate any provision of the
Securities Act of 1933 or the Exchange Act of 1934, nor has Hudson
sold, assigned or otherwise disposed of any of the shares represented
by Certificates identified in Paragraph 2 above, in violation of
either of said acts.
(c) In the event that any third party shall bring an action against
Hudson, to compel Hudson to transfer any of the shares represented by
Certificates identified in Paragraph 2 above, and in the further event
that any such third party shall join YPNT in such action or shall
bring an independent action against YPNT, based upon the same claims
set forth in the Pending Action, then Hudson agrees to indemnify YPNT
against all damages recovered by way of judgment against YPNT directly
resulting from the acts or omissions of Hudson, including YPNTs
reasonable court costs and attorney fees, unless the claims of such
third party directly result from any act or omission of YPNT.
<PAGE>
11. CONTINGENCIES. Upon execution of this Agreement by all Parties, each of
the Parties shall be required to perform in accordance with the requirements of
this Paragraph 11 ("Contingencies") as follows:
(a) YPNT shall deliver an $85,000 cashier's check to ARTCO, made payable
to Hudson, for delivery by ARTCO to Hudson or its attorneys, within
ten (10) days after completion of each and all of the following
events:
(1) Hudson shall forthwith deliver to ARTCO, in good form, each and
all of the YPNT Common Stock Certificates identified in paragraph 2(b)
above, all Certificates to be duly endorsed by Hudson with signature
guaranteed by a member of a national exchange, none of which shares or
Certificates shall be subject to Hudson's prior transfer orders, and
none of which shall be subject to claims of any third parties other
than those of YPNT.
(2) Forthwith upon execution of this Agreement, ARTCO, shall cause the
Pending Action to be dismissed as against Pritchett, and shall further
cause its legal counsel to petition the Court in the Pending Action,
to pursue securing default judgments (with prejudice) against Montana
and M&E, and shall further secure such Orders signed by the Judge as
may be appropriate to give effect to the foregoing; or in the
alternative, Hudson shall secure formal written releases of all claims
against Hudson, YPNT and ARTCO signed by Montana and M&E in form
satisfactory to YPNT's legal counsel; and shall further cause all
interpleaded YPNT shares to be redelivered to ARTCO by Court Order;
and Hudson's attorney shall provide YPNT and ARTCO with copies of all
documents filed with the Court.
(3) Forthwith upon execution of this Agreement, Hudson shall tender to
ARTCO, subject to the terms and conditions of this Agreement, each and
all YPNT Common Stock Certificates identified above in paragraph 2(b)
as have not as yet been delivered to ARTCO for transfer, in the
aggregate 1,425,334 shares of YPNT standing in its name, including
shares interpleaded with the Court.
<PAGE>
12. NON-PERFORMANCE. In the event that:
(a) YPNT shall fail or refuse to deliver to ARTCO the cashier's check in
the sum of $85,000 identified above; and/or,
(b) Hudson shall fail or refuse to deliver to ARTCO, in good form, all
Certificates aggregating 1,425,334 shares of YPNT Common Stock
identified above; and/or,
(c) ARTCO shall be unsuccessful in obtaining default judgments with
prejudice against Montana and M&E, or in the alternative, Hudson shall
be unsuccessful in obtaining written releases from Montana and M&E
against Hudson, YPNT and ARTCO in form satisfactory to YPNT's legal
counsel, and
(d) if the dismissal of the Pending Action against Pritchett is not
secured, then, and in that event: (I) ARTCO shall redeliver to Hudson
all additional YPNT Certificates delivered to ARTCO under this
Agreement (but not those Certificates previously delivered to ARTCO
and interpleaded with the Court); (II) ARTCO shall redeliver to YPNT
the $85,000 cashier's check received by ARTCO; (III) the Pending
Action shall not be dismissed; and, (IV) the Parties may proceed under
the law in any manner they deem appropriate including, without
limitation, the bringing of one or more separate actions to enforce
the verbal agreement of the Parties reached before the Mediator
evidenced by this Agreement.
13. ADVICE OF COUNSEL. Each Party acknowledges that it and its independent
counsel have reviewed this Agreement and, accordingly, the normal rule of
construction that any ambiguities are to be resolved against the drafting party
shall not be employed in the interpretation of this Agreement.
14. AUTHORIZATION. The Parties hereby warrant and represent that each of
its respective corporate representative has full authority to sign and enter
into this Agreement.
15. ATTORNEY'S FEES. In the event that any Party shall bring an action to
enforce the terms and conditions of this Agreement, the prevailing party in that
action shall receive reimbursement of all reasonable attorneys' fees and costs
incurred in connection with such action.
16. UTAH LAW. This Agreement shall be construed in accordance with the laws
of the State of Utah without regard to its choice of law principles.
17. VENUE. The Parties agree that any action to enforce or construe the
terms and conditions of this Agreement shall be brought exclusively in a federal
or state court located in Salt Lake County, Utah, and each Party hereby
irrevocably consents to jurisdiction and venue in each such court.
<PAGE>
18. BINDING EFFECT. The provisions of this Agreement shall be binding upon
and inure to the benefit of the Parties and their successors, assigns, heirs,
indemnitors, executors and administrators.
19. COUNTERPARTS. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original.
20. PRIOR UNDERSTANDINGS AND AMENDMENT. This Agreement constitutes the
entire agreement of the Parties and supersedes any and all prior oral and
written agreements and understandings as to the subject matter hereof. The
Parties have not relied upon any other representations, warranties, conditions,
understandings or agreements except as specifically set forth in this Agreement,
or implied by law, and this Agreement may not be amended or modified except by
an agreement in writing signed by all Parties.
21. NOTICES. Any Notice to the Parties under this Agreement shall be in
writing, and shall be deemed to have been received on the date when personally
delivered, or on the date which is three days after mailing (postage prepaid) by
certified mail, return receipt requested, to the address of such party set forth
as follows, provided that if such date is a weekend or legal holiday (meaning a
date when the courts are closed) then the third day shall be deemed to be the
next succeeding day that is neither a weekend or a holiday;
To ARTCO:
Richard Day
American Registrar & Transfer Co.
342 East 900 South
Salt Lake City, UT 84111
With a copy to:
David R. King, Esq.
Kruse, Lada & Maycock, LLC
Post Office Box 45561
Salt Lake City, Utah 84145-0561
To YPNT:
Angelo Tullo, CEO
YP.Net.Inc.
4840 E. Jasmine Street, Suite 105
Mesa, Arizona 85205
<PAGE>
With a copy to:
Burton M. Bentley, Esq.
Burton M. Bentley, PC
7878 N. 16th Street, Suite 110
Phoenix, Arizona 85020
To Hudson:
Richard D. Surber, President
Hudson Consulting Group, Inc.
268 West 400 South
Salt Lake City, Utah 84101
With a copy to:
Michael Golightly, Esq.
268 West 400 South, Suite 84101
Salt Lake City, Utah 84101
This Agreement is hereby entered into and deemed to have been signed, and
is effective as of the date first above written.
YP.NET.INC. HUDSON CONSULTING GROUP, INC.
By: /s/ Angelo Tullo, pres. By: /s/ Richard Surber
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Angelo Tullo, President Richard Surber, President
AMERICAN REGISTRAR & TRANSFER COMPANY
By: /s/ Richard Day
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Richard Day, President