SETTLEMENT AND RELEASE AGREEMENT
SETTLEMENT AND RELEASE
AGREEMENT
This Settlement and Release Agreement
(the “Agreement”) is entered into on this _____ day of September 2008 by and
among InterClick, Inc. f/k/a Customer Acquisition Network Holdings, Inc.
(“InterClick”), Options Media Group Holdings, Inc. and its subsidiaries
(collectively, “Options”) and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (“▇▇▇▇▇▇▇▇”).
WHEREAS, InterClick and ▇▇▇▇▇▇▇▇ are
parties to that certain Agreement and Plan of Merger dated December 18, 2007
(“Merger Agreement”) and that certain Employment Agreement dated January 4, 2008
(“Employment Agreement”).
WHEREAS, the certain disputes have
arisen between the parties regarding the Merger Agreement and Employment
Agreement.
WHEREAS, InterClick and
▇▇▇▇▇▇▇▇ have agreed to compromise and settle all claims arising
between them on the terms and conditions set forth in this
Agreement.
WHEREAS, Options assumed liability for
the Employment Agreement.
NOW THEREFORE, in consideration of the
mutual covenants and agreements set forth herein, and other consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
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1.
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Recitals:
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The foregoing recitals are true and
correct material representations that are incorporated herein by
reference.
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2.
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Payment:
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a. Upon
the execution of this Agreement, InterClick shall deliver the sum of $600,000
payable to the ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇. P.A. Trust Account for the benefit of
▇▇▇▇▇▇▇▇.
b. In
addition, InterClick shall deliver a promissory note, in the form of Exhibit “A”
(the “Note”) to ▇▇▇▇▇▇▇▇ in the sum of $500,000, payable in two equal
installments on October 15, 2008 and January 15, 2009. The Note is
attached and incorporated by reference into this Agreement.
c. Options
and ▇▇▇▇▇▇▇▇ shall execute a commercial lease in the form of Exhibit
“B”.
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3.
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Distribution
of Settlement Funds and Executed
Documents:
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The parties agree that all executed
settlement documents shall be delivered to ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, P.A. to be held
in escrow. Upon receipt of all settlement documentation from each
party and receipt of the settlement check and Note from InterClick, ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, P.A. shall deliver a complete set of executed settlement documents to
each party and the settlement check and Note to ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇. P.A. for the
benefit of ▇▇▇▇▇▇▇▇.
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4.
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Resignation
and Termination:
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The execution of this Agreement shall
operate as ▇▇▇▇▇▇▇▇’▇ resignation from all employment at InterClick and Options
and as an officer of Options. This resignation shall not be construed
as “cause” or “good reason”, as defined in the Employment Agreement, and the
parties shall construe the resignation as a mutually-agreed upon
separation.
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5.
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Personal
Guaranties:
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Options shall attempt to effect the
removal of ▇▇▇▇▇▇▇▇ from any and all personal guaranties for vendor
relationships that relate to or arise from the Merger Agreement and subsequent
events arising from that agreement, specifically identified as : (a)
▇▇▇▇▇▇ Leasing A/C 001-037-4743-002; (b) ▇▇▇▇▇▇ Leasing A/C 001-037-4743-001;
(c) American Express A/C ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇; and (d) American Express A/C
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇. In the event that Options is unable to effect
the removal of ▇▇▇▇▇▇▇▇ as guarantor from the obligations identified as Section
5(b)-(d) within 5 days of this Agreement, it shall pay off and discharge those
obligations in full and indemnify and hold harmless ▇▇▇▇▇▇▇▇ from any and all
damages for any action filed in connection with these
obligation. In the event that Options is unable to effect the
removal of ▇▇▇▇▇▇▇▇ as guarantor from the obligation identified as 5(a) within 5
days of this Agreement, Options shall deposit a sum equal to the full payout of
that obligation, including principal, interest, fees, and costs, into the trust
account of its attorneys, ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP with irrevocable instructions that
the sum shall be solely used for the monthly payment of the obligation, and
Options shall pay off and discharge those obligations in full, and indemnify and
hold harmless ▇▇▇▇▇▇▇▇ from any and all damages for any action filed in
connection with these obligation.
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6.
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InterClick
Options:
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Notwithstanding the provisions of
Paragraph 4 of this Agreement, ▇▇▇▇▇▇▇▇ shall be fully vested and entitled to
the options to purchase 300,000 shares of InterClick common stock in accordance
with all of the terms within the Options Grant except they shall only be
exercisable, as follows: 1) the option to purchase 100,000 shares of InterClick
common stock shall not be exercised before January 15, 2009; and 2) the option
to purchase 200,000 shares of InterClick common stock shall not be exercised
before one (1) year from the date of this Agreement. InterClick,
pursuant to the terms of the Option Grant, shall, upon ▇▇▇▇▇▇▇▇’▇ exercise of
his rights and payment of the exercise price issue shares of InterClick common
stock to ▇▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇▇ and Options agree that neither party has
any obligation or liability to the other under the Employment Agreement or
otherwise.
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7.
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InterClick
Stock:
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In addition to the executed settlement
documents, ▇▇▇▇▇▇▇▇ shall deliver a duly executed stock certificate permitting
the transfer of 10,000 shares of InterClick common stock to Mr. Hakan Koyunco
and letter of investment intent from Mr. Hakan Koyunco to InterClick together
with Mr. Koyunco’s acknowledgment that the shares are restricted and remain
subject to the twelve (12) month lock-up agreement within the Merger
Agreement. Thereafter, InterClick shall then issue a new stock
certificate representing 10,000 shares of InterClick common stock (restricted)
to Mr. Hakan Koyunco.
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8.
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Cooperation
in Issuing Press Release:
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▇▇▇▇▇▇▇▇ shall cooperate in preparing
an disseminating a jointly-prepared statement indicating that he is departing
from InterClick under amicable circumstances and otherwise indicating his
support for InterClick and Options. The press release shall be
mutually agreed upon before distribution for publication.
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9.
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Releases:
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a. On
behalf of InterClick and its predecessors, successors, assigns, parent
corporations, subsidiary corporations and affiliated corporations, InterClick
hereby releases, remises, acquits, satisfies and forever discharges ▇▇▇▇▇▇▇▇ and
his predecessors, successors, assigns, heirs, executors, beneficiaries, and
present and former agents, present and former representatives and present and
former attorneys, whether or not expressly named herein (such persons or
entities, individually and collectively, referred to in this Paragraph 9 as the
“▇▇▇▇▇▇▇▇ Released Parties"), from any and all claims, demands, damages, suits,
remedies, actions and causes of action, debts, sums of money, agreements,
promises, losses and expenses of any and every kind or
character, whether known, unknown or suspected, whether direct or derivative,
for or because of anything done or not done, omitted or suffered to be done by
any of the ▇▇▇▇▇▇▇▇ Released Parties, individually and collectively, prior to
and including the date by which this Agreement is signed by all of the parties,
except for those obligations arising pursuant to this Agreement.
b. On
behalf of ▇▇▇▇▇▇▇▇ and his heirs, executors, administrators, trust
administrators and beneficiaries, predecessors, successors, assigns, and any
other persons or entities they represents or purports to represent, ▇▇▇▇▇▇▇▇
hereby releases, remises, acquits, satisfies and forever discharges InterClick,
Options and each of its predecessors, successors, assigns, affiliated
corporations, officers, directors, shareholders, present and former agents,
present and former employees, present and former representatives and present and
former attorneys, present and former insurers, whether or not expressly named
herein (such persons or entities, individually and collectively, referred to in
this Paragraph 9 as the “InterClick and Options Released Parties"
from any and all claims, demands, damages, suits, remedies, actions and causes
of action, debts, sums of money, agreements, promises, losses
and expenses of any and every kind or character, whether
known, unknown or suspected, whether direct or derivative, for or because of
anything done or not done, omitted or suffered to be done by any of the
InterClick Released Parties individually and collectively, prior to and
including the date by which this Agreement is signed by all of the parties,
except for those obligations arising pursuant to this Agreement.
c. On
behalf of Options and its predecessors, successors, assigns, parent
corporations, subsidiary corporations and affiliated corporations, Options
hereby releases, remises, acquits, satisfies and forever discharges ▇▇▇▇▇▇▇▇ and
his predecessors, successors, assigns, heirs, executors, beneficiaries, and
present and former agents, present and former representatives and present and
former attorneys, whether or not expressly named herein (such persons or
entities, individually and collectively, referred to in this Paragraph 9 as the
“▇▇▇▇▇▇▇▇ Released Parties"), from any and all claims, demands, damages, suits,
remedies, actions and causes of action, debts, sums of money, agreements,
promises, losses and expenses of any and every kind or character,
whether known, unknown or suspected, whether direct or derivative, for or
because of anything done or not done, omitted or suffered to be done by any of
the ▇▇▇▇▇▇▇▇ Released Parties, individually and collectively, prior to and
including the date by which this Agreement is signed by all of the parties,
except for those obligations arising pursuant to this Agreement.
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10.
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Attorneys’
Fees:
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Each party shall bear their own
attorneys fees and costs arising from the settlement of the dispute resolved by
this Agreement.
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11.
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Default:
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In the event that InterClick fails to
fully and timely perform any obligation under this Settlement Agreement and
Releases, including the Note, ▇▇▇▇▇▇▇▇ shall in his sole and exclusive
discretion, be entitled to the entry of final judgment for the full amount due
and owing under the Agreement, plus all reasonable attorneys’ fees and costs in
enforcing this Agreement, and pre-judgment interest from the date of this
Agreement, upon the filing of a Complaint to Enforce Settlement Agreement and
For Default of Settlement Agreement and an affidavit of the sum due and owing
under the Agreement. InterClick agrees that it shall not seek any
relief, assert any defense, or impose in any way on ▇▇▇▇▇▇▇▇’▇ right to obtain a
judgment for the amount due and owing under the Agreement. In the
event of a default, ▇▇▇▇▇▇▇▇ shall provide notice to InterClick, which shall
have five (5) days to cure any default.
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12.
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Entire
Agreement:
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Except as otherwise expressly set
forth, this Agreement constitutes the entire agreement between the parties with
respect to the subject matter of this Agreement and supersedes any and all prior
and contemporaneous oral and written agreements and discussions. This Agreement
may be amended only by an agreement in writing executed by all
parties.
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13.
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Litigation:
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This Agreement shall be interpreted,
construed and enforced in accordance with Florida law, In any action brought to
interpret or enforce this Agreement, the prevailing party shall recover from the
non-prevailing party their attorneys‘ fees and costs incurred in preparing for
and prosecuting said action. The parties agree that venue shall be
appropriate in Miami-Dade County, Florida in any action brought in state or
federal court.
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14.
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Notices:
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Any notices required or relating to
this Agreement shall be delivered via facsimile with facsimile confirmation and
U.S. Mail, return receipt requested to the following:
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a.
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As
to InterClick
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▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇ ▇▇▇
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▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
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With
A Copy to:
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▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, P.A.
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▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
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b.
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As
to ▇▇▇▇▇▇▇▇
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▇▇▇
- ▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
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With
a Copy to:
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▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇.
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▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇. P.A.
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▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
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c.
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As
to Options:
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Options
Media Group Holdings, Inc.
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▇▇▇
▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
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Attention: ▇▇.
▇▇▇▇▇ ▇▇▇▇▇▇▇
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With
a Copy to:
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▇▇▇▇▇▇
▇▇▇▇▇▇ LLP
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▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
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▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇
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Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
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Attention:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
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15.
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Counterparts:
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This Agreement may be executed in
counterparts, which taken together, will have the same effect as if the original
signatures were affixed to the same document.
IN WITNESS WHEREOF, the parties hereto
have executed this Agreement on the day and year first above
written.
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InterClick,
Inc. f/k/a Customer Acquisition Network
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Holdings,
Inc.
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By:
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/s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, Chief Executive Officer
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Options
Media Group Holdings, Inc.
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By:
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/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇
▇▇▇▇▇▇▇, Chief Executive Officer
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/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇
▇▇▇▇▇▇▇▇
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