GENERAL RELEASE AND SETTLEMENT AGREEMENT
Exhibit 10.24
This
General Release and Settlement Agreement (“Agreement”) is made this 29th day of
December, 2008 by and between uVuMobile, Inc. (the “Company”) and the Xxxxxx
Family (as defined herein). The term “Parties” shall refer to the Xxxxxx Family
and the Company collectively.
WITNESSETH:
WHEREAS,
Xxxxxxx X. Xxxxxx, Xx., Xxxxxxx X. Xxxxxx Xx. Trust, Xxxxxxx X. Xxxxxx, III,
Xxxxxxx X. Xxxxxx III IRRV TR UA, Xxxxxxxx X. Xxxx, Xxxxxx X. Xxxxxx, Xxxxx X.
Xxxxxx, and Xxxxxx X. Xxxxxx (collectively the "Xxxxxx Family") have asserted
certain claims and rights against and with respect to the Company, including,
but not limited to, certain claims and rights they believe they have respect to
the Company; and;
WHEREAS,
the Xxxxxx Family desires to resolve all claims and rights alleged and any and
all other claims and rights against the Company.
NOW,
THEREFORE, for and in consideration of the mutual promises and covenants set
forth herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as
follows:
AGREEMENT
1.
Effective Date.
This Agreement shall become effective on December 29, 2008 (“the Effective
Date”).
2.
Payment.
(a)
Payment. The
Company will issue Six-Million (6,000,000) shares of common stock (the “Common
Stock”) to the Xxxxxx Family to be allocated to them as solely agreed to by and
between the Xxxxxx Family. The inability of the Xxxxxx Family to
agree on the proper allocation of the common stock will not affect the validity
or enforceability of this Agreement. The Company may rely upon the
written representation of Xxxxxxxx X. Xxxx as to the proper allocation of the
Common Stock. Assuming Xxxxxxxx X. Xxxx notifies the Company in
writing of the proper allocation of the Common Stock on or before January 15,
2008, the Company will use its best efforts to issue the applicable stock
certificates and deliver them to Xxxxxxxx X. Xxxx by January 30,
2008.
(b)
Taxes and
Indemnity. Except as may be set forth by the rules and regulations of the
Internal Revenue Service, the agreed upon value for Federal income tax purposes
for each share of Common Stock (the "Share Basis") will be the lower of fifty
percent (50%) of the publicly traded closing price of the Company’s stock on (i)
the Effective Date, or (ii) the day on which the Stock Certificates for the
Common Stock are physically received by Xxxxxxxx X. Xxxx. The Company
will issue to each of the Xxxxxx Family an IRS Form 1099 reflecting their pro
rata share of the Share Basis for the Common Stock. The Xxxxxx Family
shall be solely responsible for the payment of any taxes or any withholdings
resulting from the issuance of the Common Stock and shall, jointly and
severally, indemnify the Company and hold the Company harmless from any taxes,
amounts required by law to be withheld as a result of the issuance of the Common
Stock, penalties, costs, expenses and interest assessed against, paid by, or
incurred by the Company as a result of or relating to the issuance of the Common
Stock, the Share Basis, or the reporting of the Share Basis to any government
authority or to the Xxxxxx Family, including but not limited to reporting the
Share Basis for the Common Stock on IRS Form 1099.
(c)
Legend on Common
Stock. The Xxxxxx Family each hereby acknowledge, understand
and agree that the Common Stock will be legended and restricted securities
within the meaning of the Securities Act of 1933, and that as such, such shares
may not be offered or sold publicly unless such shares are registered under the
Securities Act of 1933 or offered and sold pursuant to an exemption
therefrom.
3.
Release of Claims by
the Xxxxxx Family. As a material inducement to the Company to enter into
this Agreement, the Xxxxxx Family hereby irrevocably release the Company and
each of the owners, stockholders, predecessors, successors, directors, officers,
employees, representatives, attorneys, subsidiaries and affiliates (and agents,
directors, officers, employees, representatives and attorneys of such
subsidiaries and affiliates) of the Company, and all persons acting by, through,
under or in concert with them, including without limitation, Xxxxxx XxXxxxxx,
Xxxxxxx Xxxxxxx, Xxxxxxx Xxxxxxxxx, Xxxxx Xxxxxx, and Xxx Xxxxxx (collectively
the “Releasees”), from any and all charges, claims, liabilities, agreements,
damages, causes of action, suits, costs, losses, debts and expenses (including
attorneys’ fees and costs actually incurred) of any nature whatsoever, known or
unknown, including, but not limited to, any claim of breach of fiduciary duty,
rights arising out of alleged violations of any contracts, express or implied,
any covenant of good faith and fair dealing, express or implied, or any tort, or
any federal, state or other governmental statute, regulation or ordinance (the
“Claim” or “Claims”), which the Xxxxxx Family may have had, now have, or claim
to have, or which the Xxxxxx Family at any time hereinafter may have or claim to
have, against each or any of the Releasees occurring up to and including the
Effective Date. Notwithstanding the above, the Xxxxxx Family shall
continue to own the shares, if any, they owned prior to the Effective Date;
however, claims accruing or arising prior to the Effective Date relating to
those shares are released hereby.
4.
Covenants Not to
Xxx. The Xxxxxx Family agrees that they will not
hereafter file or pursue any claims, grievances, complaints, lawsuits, or
arbitrations against Releasees based on any Claim.
5.
Confidentiality
of this Agreement. The Xxxxxx Family agree to keep
confidential the terms of this Agreement, except as may be required by law
(including but not limited to SEC disclosures) or as the Company, in its sole
discretion, may deem fit to disclose in a press release.
6.
Destruction of
Files. The Xxxxxx Family shall immediately destroy all
pleadings, depositions, files, correspondence, computer records, disks, and
other documents obtained in any prior Lawsuit or relating to any Lawsuits or the
Claims (collectively the “Files”). Xxxxxx Family shall only use the
Files to assist the Company and shall destroy the Files immediately upon request
of the Company.
7.
Agreement Not to
Assist Others. The Xxxxxx Family represents and agrees
that they will not assist any other person or entity of any kind in the
institution, assertion, commencement, pursuit, prosecution, settlement or
resolution of any claim, action, cause of action, suit, right, or demand of any
kind whatsoever that in any way is based on, relates to, or arises from in whole
or in part, directly or indirectly, any act or omission of any of the Releasees
occurring up to and including the Effective Date of this Agreement, including
but not limited to any claim that was asserted or that could have been asserted
in the Lawsuits.
2
8.
Agreement Not to Use
Confidential Information by the Xxxxxx Family. The Xxxxxx
Family covenant and agree, for a period of five (5) years from the Effective
Date of this Agreement, not to use any Confidential Information which is or may
come into the possession or knowledge of the Xxxxxx Family, including, but not
limited to, any such information that was or is obtained through the Lawsuits or
through any other means not herein specified, in any way against the Releasees.
For purposes of this Agreement, “Confidential Information” means any and all
data and information, whether disclosed orally, in writing, by observation, or
otherwise, relating to the Company’s business which is not generally known to
its competitors or the public and which has value to the Company. Confidential
information covered by this Agreement does not have to be marked “Confidential”
to be treated as such, and it includes, without limitation, information relating
to the Company’s: software; designs; compilations; programs; methods;
techniques; drawings; processes; research and development; legal affairs;
accounting; filings and drafts thereof; work papers; finances; actual or
potential customer information and lists; customer, partners, prospective
customer, clients, vendors, agents, representatives, consultant, and employment
candidate contact names and information; customer preferences; the needs and
hiring habits of the Company’s customers; billing rates; pricing practices;
marketing, recruiting, and placement strategies; business plans; margins;
prices; operations; existing and future services; contract expiration dates;
forecasts and forecast assumptions and volumes; and other financial, sales,
marketing, services, and operations information, whether written or otherwise,
which is not common knowledge in the Company’s industry or to the public.
Confidential Information shall not include any data or information that has been
voluntarily disclosed to the public or its competitors by the Company (except
where such public disclosure has been made without authorization) or that has
been independently developed and disclosed by others, or that otherwise enters
the public domain through lawful means.
9.
Agreement Not to
Disparage by the Xxxxxx Family. The Xxxxxx Family agrees that, as part of
the consideration for this Agreement, and for a period of three (3) years from
the Effective Date, they will not, directly or indirectly, in any capacity or
manner, make, cause, encourage or assist to be made any statements, comments or
remarks, whether oral, verbal, in writing, or electronically transmitted, which
might reasonably be considered to be derogatory, defamatory or critical of, or
negative towards, or to malign, harm, defame, disparage, or damage the
reputation and good name of the Company, its subsidiaries or affiliates, its
respective officers, directors, agents or employees, or the Releasees. Provided,
however, that if any of the Xxxxxx Family are required by any applicable law,
regulation, statute, subpoena, court order or other compulsory process to
disclose information related to the Company, such disclosure of truthful
information shall not constitute a breach of this section or of this Agreement,
provided that the Xxxxxx Family give the Company reasonable advance notice of
the request for such disclosure.
10.
Entire
Agreement. This Agreement sets forth the complete and exclusive statement
of the terms of the agreement between the Parties hereto and fully supersedes
any and all prior agreements or understandings between the Parties hereto
pertaining to the subject matter hereof.
11.
Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of
the State of Georgia, without giving effect to any principles of conflicts of
laws.
12.
Specific
Performance; Attorneys’ Fees. This Agreement may be specifically
enforced, and injunctive relief may be granted to prevent a breach of the
Agreement since there is no adequate remedy at law. The prevailing party in any
proceeding brought to enforce this Agreement shall be entitled to an award of
its reasonable costs and expenses, including, without limitation, attorneys’
fees.
13.
Severability. Should
any part, term or provision of this Agreement be declared or determined by any
court to be illegal, invalid or otherwise unenforceable, the legality, validity
and enforceability of the remaining parts, terms or provisions hereof shall be
deemed not to be affected, and the Agreement shall be interpreted and enforced
as if such illegal, invalid or unenforceable part, term or provision, to the
extent possible, is not contained herein.
3
14.
Construction.
The Parties acknowledge and agree that they participated jointly in the
negotiation and drafting of this Agreement and the rule of construction that
ambiguities are construed against the drafter is hereby waived.
15.
Amendment. This
Agreement may not be modified, amended, supplemented, or terminated except by a
written instrument executed by the Parties hereto.
16.
Heading. The
headings contained in this Agreement are for reference purposes only and shall
not in any way affect the meaning or interpretation of this
Agreement.
17.
Notice. All
notices, requests, demands, and other communications required hereunder shall be
in writing and shall be deemed to have been duly given if delivered or if
mailed, by United States certified or registered mail, postage prepaid, to the
other party to which the same is directed at the following addresses (or at such
other addresses as shall be given in writing by the Parties to one
another):
|
If
to the Company:
|
Attn:
Chief Financial Officer w/ a copy also to:
Attn:
General Counsel
0000
Xxxxxxxxx Xxxxxxxxx
Xxxxx
000
Xxxxxx,
Xxxxxxx 00000
|
|
If
to Xxxxxx Family:
|
Xxxxxxxx
X. Xxxx
000
0xx
Xxxxxx Xxxxx
Xx.
Xxxxxxxxxx, XX 00000
|
18.
Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall
be an original, and all of which together shall be deemed to be one and the same
Agreement. Executed counterparts may be delivered via facsimile
transmission.
19.
Participation in
Negotiations. EACH OF THE UNDERSIGNED PARTIES ACKNOWLEDGES AND AGREES
THAT SUCH PARTY HAS PARTICIPATED IN THE NEGOTIATION OF AND CAREFULLY READ EACH
OF THE TERMS AND PROVISIONS OF THIS AGREEMENT AND UNDERSTANDS ITS CONTENTS, AND
THAT SUCH PARTY EXECUTED THIS AGREEMENT AS SUCH PARTY’S OWN FREE ACT AND
DEED.
Executed
and agreed to this 29th day of December, 2008 by and between:
/s/
Xxxxxx X.
Xxxxxx
By: Xxxxxx
X. Xxxxxx
Its: Chief
Financial Officer
4
/s/
Xxxxxxx X. Xxxxxx,
Xx.
By: Xxxxxxx
X. Xxxxxx, Xx.
/s/
Xxxxxxx X. Xxxxxx,
Xx.
By: Xxxxxxx
X. Xxxxxx, Xx. Trust, Dated June, 3, 1996
Xxxx Xxxxxxx, Trustee
/s/
Xxxxxxx X. Xxxxxx,
III
By: Xxxxxxx
X. Xxxxxx, III
/s/
Xxxxxxx X. Xxxxxx, III
By: Xxxxxxx
X. Xxxxxx, III IRRV TR UA, Dated March 8, 2004
Xxxx Xxxxxxx, Trustee
/s/
Xxxxxxxx X.
Xxxx
By: Xxxxxxxx
X. Xxxx
/s/
Xxxxx X.
Xxxxxx
By: Xxxxx
X. Xxxxxx
/s/
Xxxxxx X.
Xxxxxx
By: Xxxxxx
X. Xxxxxx
/s/
Xxxxxx X.
Xxxxxx
By: Xxxxxx
X. Xxxxxx
5
