Exhibit

10.05




 




SETTLEMENT AGREEMENT AND

RELEASE




 




This Settlement Agreement and Release (“Agreement”) is entered into as of

September    , 2002, by and between Fidelity Leasing, a division

of EAB Leasing Corp., successor-in-interest to Herman Miller Capital  (“Fidelity”), ZAMBA Corporation d/b/a

Zamba Solutions (“Zamba”), and Michael H. Carrel (“Guarantor”).




 




F  A

C  T  S




 




A.            On

or about November 6, 2000, January 12, 2001, March 19, 2001, May 22, 2001, May

23, 2001, and July 27, 2001, Fidelity and Zamba entered into certain Equipment

Lease Agreements (the “Leases”) for certain office furniture identified

in documents entitled “Schedule A” to such Leases and attached to each Lease

(the “Equipment”).




 




B.            Fidelity alleges that the January 12, 2001, Lease

has been guaranteed by Michael H. Carrel, an officer of Zamba.




 




C.            Fidelity and Zamba have agreed to terminate the Leases,

and any amendments or modifications thereto, on the terms and conditions set

forth below.




 




Now, therefore, for good and

valuable consideration, the receipt and sufficiency of which is hereby

acknowledged, the parties hereto agree as follows:




 




1.             Termination

of Leases.  Provided that Zamba

performs all of its obligations under Section 2 of this Agreement, the Leases

shall be deemed terminated as of the first event occurring in Section 3 of this

Leases (the “Termination Date”).




 




2.             Termination

Payment.  As a condition to

Fidelity’s obligations under this Agreement, and in consideration for

Fidelity’s agreement to terminate the Leases, Zamba shall pay to Fidelity the

sum of One Hundred Twenty Thousand Dollars ($120,000) (the “Termination Payment”).  The Termination Payment shall be payable in

eight increments of Fifteen Thousand Dollars ($15,000), with the first payment

to be made on October 1, 2002, and the seven subsequent payments to be made on

the fifteenth of each respective month, commencing on October 15, 2002, and

ending on April 15, 2003 (a “Payment”). 

Each Payment shall

be delivered to Fidelity’s attorney in the form of a check made payable to “The

Law Office of Josh Jacobson P.A. IOLTA Account f/b/o Fidelity Leasing, a

division of EAB Leasing Corp.” and mailed to the following address: The Law

Office Of Josh Jacobson, P.A., 120 South Sixth Street, Suite 1515, Minneapolis,

MN 55402.  Additionally, on or

before October 31, 2002, Zamba shall make available for collection by Fidelity

the Equipment in the types and quantities listed on Exhibit 1, which is

attached to this Agreement and incorporated herein by this reference.  At no additional cost to Zamba, Zamba shall

reasonably cooperate with Fidelity to effectuate Fidelity’s collection of the

Equipment.  Fidelity shall provide Zamba

with at least one week advance notice of the date(s) and approximate time(s) it

intends to collect the equipment.




 




3.             Termination

Date.  Subject to prior execution of

this Agreement by Fidelity and Zamba, the Leases shall terminate upon receipt

by Fidelity of the eighth and final Payment.




 




4.             Zamba

Release.  As of the Termination

Date, Zamba, for itself and for its affiliated

corporations and partnerships, officers, directors, shareholders, agents,

representatives, employees, attorneys, shareholders, successors in interest,

personal representatives, heirs,

assigns and each of them, absolutely, fully and forever releases and discharges

Fidelity and Fidelity’s respective members, officers, partners, agents,

representatives, employees, servants, attorneys, successors in interest,

assigns and each of them, whether past, present or future, of and from any and

all claims, demands, liabilities, obligations, losses, controversies, costs,

expenses, attorneys’ fees and damages of every kind, nature, character or

description whatsoever, whether in law or in equity, and whether known or

unknown, suspected or unsuspected, arising out of, connected with, or in any

way related to the Leases or the Equipment. 

Zamba acknowledges and agrees that the release set forth above applies

to all claims relating to the Leases or the Equipment whether those claims are

known or unknown, foreseen or unforeseen.




 




5.             Fidelity

Release.  Subject to the performance

by Zamba of all of its obligations under this Agreement, as of the Termination

Date, Fidelity, for itself and for its

affiliated corporations and partnerships, members, officers, agents, representatives,

employees, attorneys, shareholders, successors in interest, personal

representatives, heirs, assigns and each of them, absolutely, fully and forever

releases and discharges Zamba and its officers, directors,




 




	

  Initialed by:


  
	

  /s/ DHE


  	

  Fidelity


  
	

  /s/ IN


  	

  Zamba


  
	

  /s/ MHC


  	

  Guarantor


  





 




1





























 




shareholders, agents, representatives, employees,

servants, attorneys, successors in interest, assigns and each of them, whether

past, present or future, of and from any and all claims, demands, liabilities,

obligations, losses, controversies, costs, expenses, attorneys’ fees and

damages of every kind, nature, character or description whatsoever, whether in

law or in equity, and whether known or unknown, suspected or unsuspected,

arising out of, connected with, or in any way related to the Leases or the

Equipment.  Fidelity acknowledges and

agrees that the release set forth above applies to all claims relating to the

Leases or the Equipment whether those claims are known or unknown, foreseen or

unforeseen.




 




6.             Confession of Judgment.  Zamba shall execute the attached Confession of Judgment (the “Confession

of Judgment”) in the amount of the Termination Payment, reduced by the

aggregate amount of each Payment received by Fidelity prior to its submission

of the Confession of Judgment.  Upon a

default in payment by Zamba under this Agreement that is not remedied within

fifteen (15) business days of written notice of such default from Fidelity to

Zamba, Fidelity may submit the Confession of Judgment to the court identified

in the Confession of Judgment.




 




7.             Fidelity Release of Guarantor.  Subject to the receipt by Fidelity of the

fourth Payment, which is  to be made on

December 15, 2002, Fidelity, for itself and

for its affiliated corporations and partnerships, members, officers, agents,

representatives, employees, attorneys, shareholders, successors in interest,

personal representatives, heirs, assigns and each of them, absolutely, fully

and forever releases and discharges the Guarantor of and from any and all

claims, demands, liabilities, obligations, losses, controversies, costs,

expenses, attorneys’ fees and damages of every kind, nature, character or

description whatsoever, whether in law or in equity, and whether known or

unknown, suspected or unsuspected, arising out of, connected with, or in any

way related to the Leases or the Equipment. Fidelity acknowledges and agrees

that the release set forth above applies to all claims relating to the Leases

or the Equipment whether those claims are known or unknown, foreseen or

unforeseen.




 




8.             Release by Guarantor.  As of the date of Fidelity’s Release of Guarantor, Guarantor, for itself and for its affiliated corporations

and partnerships, officers, directors, shareholders, agents, representatives,

employees, attorneys, shareholders, successors in interest, personal

representatives, heirs, assigns and each of them, absolutely, fully and forever

releases and discharges Fidelity and Fidelity’s respective members, officers,

partners, agents, representatives, employees, servants, attorneys, successors

in interest, assigns and each of them, whether past, present or future, of and

from any and all claims, demands, liabilities, obligations, losses,

controversies, costs, expenses, attorneys’ fees and damages of every kind,

nature, character or description whatsoever, whether in law or in equity, and

whether known or unknown, suspected or unsuspected, arising out of, connected

with, or in any way related to the Leases or the Equipment.  Guarantor acknowledges and agrees that the

release set forth above applies to all claims relating to the Leases or the

Equipment whether those claims are known or unknown, foreseen or unforeseen.




 




9.             Notices.  Any written notices to be given hereunder by

either party shall be deemed effective upon personal delivery or within three

business days of mailing the notice to the party to be served at the address

below.




 




	

  Fidelity:


  	

   


  	

  Zamba:


  	

   


  
	

  The Law

  Office of Josh Jacobson, P.A.


  	

   


  	

  Zamba Corporation


  	

   


  
	

  120 South Sixth Street


  	

   


  	

  3033 Excelsior Blvd.


  	

   


  
	

  Suite 1515


  	

   


  	

  Suite 200


  	

   


  
	

  Minneapolis, MN 55402


  	

   


  	

  Minneapolis, MN 55416


  	

   


  
	

  Fax: 612-339-5123


  	

   


  	

  Fax: 952-832-9383


  	

   


  
	

  Attn: Josh Jacobson


  	

   


  	

  Attn: General Counsel


  	

   


  





 




	

  Guarantor:


  	

   


  	

   


  	

   


  
	

  Michael H. Carrel


  	

   


  	

   


  	

   


  
	

  Zamba Corporation


  	

   


  	

   


  	

   


  
	

  3033 Excelsior Blvd.


  	

   


  	

   


  	

   


  
	

  Suite 200


  	

   


  	

   


  	

   


  
	

  Minneapolis, MN 55416


  	

   


  	

   


  	

   


  
	

  Fax: 952-832-9383


  	

   


  	

   


  	

   


  





 




10.           Entire Agreement. This Agreement contains the entire agreement

between the parties and may only be modified or amended by a writing signed by

all parties.




 




11.           Governing Law.  This Agreement shall be governed in all

respects, including validity, interpretation and effect, by the laws of the

State of Minnesota, except for its choice of laws principles.  Any action regarding or relating to this Agreement

shall be venued in a state or federal court located in Hennepin County in the

State of




 




	

  Initialed by:


  
	

  /s/ DHE


  	

  Fidelity


  
	

  /s/ IN


  	

  Zamba


  
	

  /s/ MHC


  	

  Guarantor


  





 




2





























 




Minnesota.




 




12.           No Assignment of Claims. The parties hereto represent and warrant that they

have not transferred or otherwise assigned, either by contract or operation of

law, any of the claims released under this Agreement.




 




13.           No Reliance on Representations.  Each party to this Agreement represents and

acknowledges that in executing this Agreement that party does not rely and has

not relied upon any representation or statement made by the other party or by

any of such other party’s agents, attorneys, or representatives with regard to

the subject matter, basis or effect of this Agreement or otherwise, other than

those representations and statements specifically stated in this written

Agreement.




 




14.           Counterparts and Facsimiles.

This Agreement may be executed in one or

more counterparts, which shall be deemed effective upon full execution of this

Agreement by all parties.  Each

counterpart shall be deemed an original, but all of which together shall

constitute one and the same instrument and agreement.  In addition, a copy of this Agreement executed by a party hereto

and telecopied to the other party shall be deemed to constitute delivery of an

originally executed copy of this Agreement to the other party.  A facsimile signature shall be enforceable

to the same extent as an original signature.




 




15.           Authority.  The

parties executing this Agreement represent that they each have authority to

enter into this Agreement, and that this Agreement is binding on such party and

enforceable in accordance with its terms. 

The persons executing this Agreement on behalf of the parties to this

Agreement represent and warrant that they individually have authority to enter

into this Agreement on behalf of such parties.




 




IN WITNESS WHEREOF, the parties hereby execute this

Agreement.




 




	

  FIDELITY


  	

  ZAMBA


  
	

   


  	

   


  
	

  Fidelity Leasing


  	

  ZAMBA Corporation


  
	

   


  	

   


  
	

  By: 


  	

  /s/ David H. English


  	

   


  	

  By: 


  	

  /s/ Ian Nemerov


  	

   


  
	

   


  	

   


  
	

  Name: David H. English


  	

  Name: Ian Nemerov


  
	

   


  	

   


  
	

  Title: Sr. VP


  	

  Title: General Counsel


  
	

   


  	

   


  
	

  Date: 9/24/02


  	

  Date: 9-27-02


  
	

   


  	

   


  
	

   


  	

  GUARANTOR


  
	

   


  	

   


  
	

   


  	

  Michael H. Carrel


  
	

   


  	

   


  
	

   


  	

  By: 


  	

  /s/ Michael H. Carrel


  	

   


  
	

   


  	

   


  
	

   


  	

  Date: 9-27-02


  
							





 




	

  Initialed by:


  
	

  /s/ DHE


  	

  Fidelity


  
	

  /s/ IN


  	

  Zamba


  
	

  /s/ MHC


  	

  Guarantor


  





 




3





























 




Exhibit

1




 




	

  Quantity


  	

   


  	

  Type


  	

   


  	

  Location


  	

   


  	

   


  
	

  16


  	

   


  	

  Tall

  Poles


  	

   


  	

  Barrett


  	

   


  	

   


  
	

  30


  	

   


  	

  Short

  Poles


  	

   


  	

  Barrett


  	

   


  	

   


  
	

  69


  	

   


  	

  48”

  Arms


  	

   


  	

  Barrett


  	

  (17

  at FSI)


  	

   


  
	

  21


  	

   


  	

  60”

  Arms


  	

   


  	

  Barrett


  	

   


  	

   


  
	

  42


  	

   


  	

  Boundary

  Screens - 60” W


  	

   


  	

  Barrett


  	

   


  	

   


  
	

  114


  	

   


  	

  Boundary

  Screens - 48”


  	

   


  	

  Barrett


  	

   


  	

   


  
	

  22


  	

   


  	

  Boundary

  Screens - 36”


  	

   


  	

  Barrett


  	

   


  	

   


  
	

  21


  	

   


  	

  Display

  Screens - 60”W


  	

   


  	

  Barrett


  	

   


  	

   


  
	

  19


  	

   


  	

  Display

  Screens


  	

   


  	

  Barrett


  	

   


  	

   


  
	

  50


  	

   


  	

  Boomerang


  	

   


  	

  Barrett


  	

   


  	

   


  
	

  50


  	

   


  	

  Input

  Table


  	

   


  	

  Barrett


  	

   


  	

   


  
	

  24


  	

   


  	

  Pole

  Shelf


  	

   


  	

  Barrett


  	

   


  	

   


  
	

  50


  	

   


  	

  Tool

  Rail


  	

   


  	

  Barrett


  	

   


  	

   


  
	

  50


  	

   


  	

  Vertical

  Tray


  	

   


  	

  Barrett


  	

   


  	

   


  
	

  50


  	

   


  	

  Diagonal

  Tray


  	

   


  	

  Barrett


  	

   


  	

   


  
	

  26


  	

   


  	

  Horizontal

  Tray


  	

   


  	

  Barrett


  	

   


  	

   


  
	

  21


  	

   


  	

  Bookshelf

  & Holders


  	

   


  	

  Barrett


  	

   


  	

   


  
	

  5


  	

   


  	

  Task

  Chair - purple


  	

   


  	

  Barrett


  	

   


  	

   


  
	

  16


  	

   


  	

  Kiva

  Book Shelf w/oversail


  	

   


  	

  Barrett


  	

   


  	

   


  
	

  37


  	

   


  	

  Kiva

  Pebble table


  	

   


  	

  Barrett

  (24)


  	

  Denver

  (2)  Campbell (11)


  	

   


  
	

  4


  	

   


  	

  Martin

  Brattrud Lounge chair - purple


  	

   


  	

  Barrett


  	

   


  	

   


  
	

  3


  	

   


  	

  Martin

  Brattrud Lounge chair - green


  	

   


  	

  Barrett


  	

   


  	

   


  
	

  22


  	

   


  	

  Mobile

  ped - Meridian


  	

   


  	

  Barrett

  (8)


  	

  Denver

  (2)  Campbell (12)


  	

   


  
	

  4


  	

   


  	

  Whiteboard

  - pole attached


  	

   


  	

  Barrett


  	

   


  	

   


  
	

  3


  	

   


  	

  Whiteboard

  - Kiva mobile


  	

   


  	

  Barrett


  	

   


  	

   


  
	

  49


  	

   


  	

  Lockers


  	

   


  	

  Barrett


  	

   


  	

   


  
	

  5


  	

   


  	

  Canopy


  	

   


  	

  Barrett


  	

   


  	

   


  
	

  3


  	

   


  	

  Ladder

  shelf


  	

   


  	

  Minneapolis


  	

   


  	

   


  
	

  3


  	

   


  	

  Round

  Table -Bar height -Falcon


  	

   


  	

  Barrett


  	

   


  	

   


  
	

  3


  	

   


  	

  Versteel

  Oval Table


  	

   


  	

  Barrett


  	

   


  	

   


  
	

  4


  	

   


  	

  Versteel

  1/4 Round table


  	

   


  	

  Barrett


  	

   


  	

   


  
	

  6


  	

   


  	

  Versteel

  Rectangle Table


  	

   


  	

  Barrett


  	

   


  	

   


  
	

  52


  	

   


  	

  Keilhauer

  Side Chair


  	

   


  	

  Barrett

  (46)


  	

  Denver

  (6)


  	

   


  
	

  21


  	

   


  	

  Monitor

  pods


  	

   


  	

  Barrett


  	

   


  	

   


  
	

  22


  	

   


  	

  Kiva

  Wing Table


  	

   


  	

  Barrett

  (21)


  	

  Denver

  (1)


  	

   


  
	

  8


  	

   


  	

  Kiva

  Metal Bookshelf - Mobile


  	

   


  	

  Barrett

  (2)


  	

  Campbell

  (6)


  	

   


  
	

  1


  	

   


  	

  Geiger

  Brisk Reception Desk


  	

   


  	

  FSI


  	

   


  	

   


  
	

  1


  	

   


  	

  PeterPepper

  Drum Table


  	

   


  	

  FSI


  	

   


  	

   


  
	

  1


  	

   


  	

  Geiger

  Triuna Gallery Reception Desk


  	

   


  	

  Campbell


  	

   


  	

   


  
	

  1


  	

   


  	

  Geiger

  Round table


  	

   


  	

  Campbell


  	

   


  	

   


  
	

  4


  	

   


  	

  Bernhardt

  Sinclaire Lounge Chair


  	

   


  	

  Campbell


  	

   


  	

   


  





 




	

  Initialed by:


  
	

  /s/ DHE


  	

  Fidelity


  
	

  /s/ IN


  	

  Zamba


  
	

  /s/ MHC


  	

  Guarantor


  





 




4





























 




Legend




Barrett = Edina, MN

warehouse




FSI = Plymouth, MN

warehouse




Denver = 10900 S.

Parker Road, Suite 101, Parker, CO 80134-3453 office




Campbell = 655

Campbell Technology Parkway, Suite 100, Campbell, CA 95008 office




Minneapolis = 3033

Excelsior Blvd., Suite 200, Minneapolis, MN 55416 office




 




 




 




	

  Initialed by:


  
	

  /s/ DHE


  	

  Fidelity


  
	

  /s/ IN


  	

  Zamba


  
	

  /s/ MHC


  	

  Guarantor


  





 




5