|
033-22128D
(Commission
File Number)
|
84-1062062
(IRS
Employer Identification Number)
|
|
ITEM
1.01
|
ENTRY
INTO A MATERIAL DEFINITIVE
AGREEMENT
|
|
ITEM
3.02
|
UNREGISTERED
SALES OF EQUITY SECURITIES
|
|
Exhibit
No.
|
Page
No.
|
Description
|
|
1.
|
The
Parties hereto understand, acknowledge, and agree that the execution
of
this Agreement constitutes a compromise of the obligations and debts
that
exist between them, that this Agreement is not to be considered as
any
finding of fact nor construed as an admission of wrongdoing or default
by
any party.
|
|
2.
|
Nexia
will issue 200,000 shares of its Series C Preferred Stock to Corso
(the
Settlement Shares). These shares would be delivered to Corso
upon the final execution of this Agreement by both
parties.
|
|
3.
|
The
parties hereby agree and stipulation that it is their intention that
the
Settlement Shares are to be treated as part of the settlement of
the
obligation due to Corso under the terms of the Debenture and that
Nexia’s
obligation to satisfy that debt has existed since the creation of
the
Debenture on November 1, 2004 and that any calculation of the period
during which Corso has been at risk shall begin as of that
date.
|
|
4.
|
Corso
hereby agrees that conversion of the Settlement Shares into common
stock
of Nexia shall be done such that any conversion does not result in
the
issuance of more than 9.9% of the issued and outstanding shares of
common
stock of Nexia in any single issuance and that Corso shall if requested
certify that he is not a holder of common stock at the time of any
requested conversion such that the conversion would make him a holder
of
more than 9.9% of Nexia’s issued and outstanding shares of common
stock.
|
|
5.
|
The
respective Parties have agreed to jointly draft and execute this
Settlement Agreement and General Release, and after the language
is
finalized, to provide the other with a copy of the executed signature
page
with all due expediency.
|
|
6.
|
The
Parties agree that payment made in the form of items 1 through 5
of this
agreement by Nexia shall constitute full and complete settlement
of all
claims and obligations arising from, or related to the
Debenture. .
|
|
7.
|
Each
party agrees for itself, its predecessors, successors, and assigns,
to
fully and unconditionally release and forever discharge the other
party,
including each party successors, assigns, subsidiaries,
affiliates, transferees, attorneys, representatives, agents, officers,
directors, employees, insurers, and reinsurers, past, present, and
future,
from and on account of any and all claims, demands, actions, causes
of
action, or charges of any nature or kind whatsoever against the other
party, whether known or unknown, asserted or unasserted, choate or
inchoate, related to or arising out of the Debenture in any
nature.
|
|
10.
|
In
executing this Agreement, the Parties acknowledge that they have
been
advised to consult with and have consulted with and had the advice
of an
attorney duly admitted to practice law prior to executing this Agreement
and that they have voluntarily executed this Agreement after a careful
and
independent investigation, and not under fraud, duress, or undue
influence.
|
|
11.
|
This
Agreement shall be binding on and inure to the benefit of the Parties
hereto, their heirs, executors, administrators, successors-in-interest,
and assigns.
|
|
12.
|
All
Parties hereby agree that this Agreement is the complete and exclusive
statement of the mutual understanding of the Parties and supersedes
and
cancels all previous written and oral agreements and communications
relating to the Debenture.
|
|
13.
|
The
Parties hereby agree that no inference or rule of inference shall
be made
by reason of the fact that one Party caused this Agreement to be
drafted.
For purposes of interpretation of the Agreement, it shall be assumed
that
all Parties drafted each provision of the Agreement. This Agreement
shall
be deemed to have been made in, and shall be construed pursuant to
the
laws of the State of California.
|
|
14.
|
If
any provision of this Agreement shall be adjudged by any court of
competent jurisdiction to be unenforceable or invalid, that provision
shall be limited or eliminated to the minimum extent necessary so
that
this Agreement shall otherwise remain in full force and effect and
enforceable.
|
|
15.
|
The
Parties hereto specifically acknowledge, affirm, agree, and intend
on
their own behalf and on the behalf of their attorneys and representatives,
that the terms of this Agreement shall remain entirely confidential
unless
disclosure is required by the court, by law, any reporting requirements
of
the Securities and Exchange Commission, or otherwise necessary to
carry
out the terms and conditions of this
Agreement.
|
|
16.
|
No
failure to exercise, and no delay in exercising, on the part of any
Party,
any privilege, any power or any rights hereunder will operate as
a waiver
thereof, nor will any single or partial exercise of any right or
power
hereunder preclude further exercise of any right
hereunder.
|
|
17.
|
Each
of the parties shall hereafter execute all documents and take all
actions
that are reasonably necessary to effectuate the provisions of this
Agreement.
|
|
18.
|
Corso
further warrants and certified that he is at the time of the execution
of
this Agreement an accredited investor as that term is defined by
the SEC
and that he is fuly informed of the nature and risk of his investment
in
Nexia as represented by the terms of this
Agreement.
|
|
18.
|
The
Parties hereby acknowledge that there is a risk that subsequent to
the
execution of this Agreement. They will discover, incur, or suffer
claims
which were unknown or anticipated at the time this Agreement was
executed,
which, if known on the date this Agreement is executed, may have
materially affected their decision to execute this Agreement. The
Parties
expressly assume the risk of such unknown and unanticipated claims
and
agree that this Agreement and the general release contained herein
apply
to all such known or unknown or unanticipated
claims.
|
|
19.
|
If
any actual controversy arises as to the enforcement of any provision
of
this Agreement, the prevailing party, in any action or arbitration
to
enforce this Agreement, shall be entitled to recover all costs and
expenses including, without limitation, attorney
fees.
|
|
20.
|
The
Parties agree that this Agreement may be executed in counterparts.
The
Parties further agree that, in order to expeditiously effect the
execution
of this Agreement, a facsimile transmission of the signature pages
will be
deemed an original.
|