GENERAL RELEASE AND SETTLEMENT AGREEMENT
This
General Release and Settlement Agreement (“Agreement”) is made this 30th day of
June, 2006 by and between Xxxxxxxxxxx Xxxxx (“Xxxxx”), Paramount Trading Co.,
Inc. (“Paramount”), Xxxxx Xxxxxxx (“Xxxxxxx”), Xxxxxx Xxxxxxx (“Xxxxxxx”), Xxxx
Xxxxx (“Xxxxx”), Xxxx X. Xxxxx Law Associates, P.C. (“Xxxxx Law Firm”) - (all
collectively the “Claimant Parties”) and SmartVideo™ Technologies, Inc.
(“SmartVideo”). The term “Parties” shall refer to the Claimant Parties and
SmartVideo collectively.
WITNESSETH:
WHEREAS,
Xxxxx, Paramount, Xxxxxxx and Xxxxxxx have asserted certain claims and rights
against and with respect to SmartVideo, including, but not limited to, those
claims made in Civil Action No. l:06-cv-0849-MHS currently pending in the United
States District Court for the Northern District of Georgia; and
WHEREAS,
Xxxxx and the Xxxxx Law Firm represent Xxxxx, Paramount, Xxxxxxx and Xxxxxxx
with respect those certain claims and rights referenced above;
WHEREAS,
Xxxxx is the sole beneficial owner (as such term is defined in Rulel3d-3(a)
of
the Securities Exchange Act of 1934) of 872,500 shares of SmartVideo common
stock;
WHEREAS,
Paramount is the sole beneficial owner (as such term is defined in Rule 13d-3(a)
of the Securities Exchange Act of 1934) of 246,667 shares of SmartVideo common
stock;
WHEREAS,
Xxxxxxx is the sole beneficial owner (as such term is defined in Rule l3d-3(a)
of the Securities Exchange Act of 1934) of 872,500 shares of SmartVideo common
stock; and WHEREAS, the Claimant Parties and SmartVideo desire to resolve all
such alleged claims and rights and any and all other alleged claims and rights,
as set forth herein.
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 immediately after the Parties hereto have
signed the Agreement (“the Effective Date”).
2.
Shares
and Registration Rights.
(a)
Ownership
and Title.
Xxxxx,
Paramount and Xxxxxxx each severally and not jointly represent and warrant
to
SmartVideo that they each are the sole beneficial owner of 872,500, 246,667
and
872,500 shares of SmartVideo common stock (collectively, the “Shares”) and that
each has valid and marketable title to such shares of common stock, free and
clear of all claims, liens, charges, encumbrances, “adverse claims” (as defined
in Article 8 of the Georgia Uniform Commercial Code), security interests and
rights of third parties.
(b) Commitments.
Prior
to the transfer to Xxxxx of 311,083 shares of SmartVideo common stock owned
by
Xxxxx, Paramount and Xxxxxxx, each of Xxxxx, Paramount and Xxxxxxx severally
and
not jointly represent and warrant to SmartVideo that they have not created
and
will not have created any subscriptions, options, warrants, claims, calls,
commitments, proxies or agreements for the purchase, voting or control of any
of
such shares.
(c) Transfer
of Shares to Xxxxx.
In
consideration of his representation of Xxxxx, Paramount and Xxxxxxx in the
matters discussed herein, Xxxxx, Paramount and Xxxxxxx are hereby transferring
and selling to Xxxxx 174,500, 49,333 and 87,250 shares, respectively, of
SmartVideo common stock. Xxxxx, Paramount and Xxxxxxx hereby severally and
not
jointly represent and warrant to SmartVideo that such transfer and sale to
Xxxxx
will be conducted in a transaction exempt from registration under the Securities
Act of 1933. After the transfer of a total 311,083 shares of SmartVideo common
stock to Xxxxx from Xxxxx, Paramount and Xxxxxxx, each of Xxxxx, Paramount,
Xxxxxxx and Xxxxx shall remain the sole beneficial owner (as such term is
defined in Rule 13d-3(a) of the Securities Exchange Act of 1934) of 698,000,
197,334, 785,250 and 311,083 shares of SmartVideo common stock, respectively
(collectively hereinafter referred to as the “Registered Shares”) until such
time as any of such shares are sold. Each of Xxxxx, Paramount, Xxxxxxx and
Xxxxx
shall advise SmartVideo in writing of any sale of such shares within ten
calendar days after the closing of a sale. Xxxxx, Paramount, Xxxxxxx and Xxxxx
severally and not jointly represent and warrant to SmartVideo that they do
not
have any agreement, understanding or arrangement with any other person or entity
with regard to the proceeds from the sale of the Registered Shares, nor will
such an agreement, understanding or arrangement be made by Xxxxx, Paramount,
Xxxxxxx or Xxxxx subsequent to the date of this Agreement.
(d) Legend
on Common Stock.
Xxxxx,
Paramount, Xxxxxxx and Xxxxx each hereby acknowledge, understand and agree
that
their shares of SmartVideo 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.
(e) Registration
of Common Stock.
By no
later than July 31, 2006, SmartVideo shall include the Registered Shares in
a
registration statement filed with the Securities and Exchange Commission
covering the Registered Shares and 550,000 shares which SmartVideo is required
to register for Enable Growth Partners, L.P. and INSYSTCOM, Inc. Although
SmartVideo is filing a registration statement with the Securities and Exchange
Commission on June 30, 2006 covering the 550,000 shares of SmartVideo common
stock owned by Enable Growth Partners, L.P. and INSYSTCOM, Inc., SmartVideo
shall not seek acceleration of such registration statement, or permit the
Securities and Exchange Commission to declare such registration statement
effective, unless and until the Registered Shares are included in such
registration statement by way of the filing of a pre-effective amendment to
such
registration statement. In connection with such registration statement, each
of
Xxxxx, Paramount, Xxxxxxx and Xxxxx shall provide SmartVideo with the
information required to be included in such registration statement under Items
507 and 508 of Regulation S-K (Part 229 of Title 17 of the Code of Federal
Regulation) and such other information as is reasonably requested to be included
in such registration statement by SmartVideo. All of such information provided
to SmartVideo by Xxxxx, Paramount, Xxxxxxx and Xxxxx shall be true and correct
in all material respects. SmartVideo shall be required to maintain the
effectiveness of such registration statement for the Registered Shares until
the
owner of the Registered Shares can publicly sell his or its portion of the
Registered Shares under Rule 144(k) promulgated under the Securities Act of
1933.
-2-
(f) Removal
of Restrictive Legend from Registered Shares.
SmartVideo shall remove the restrictive legend from stock certificates relating
to Registered Shares if and when the registered owner of such shares provides
SmartVideo with a legal opinion, in form and substance satisfactory to
SmartVideo, stating that the restrictive legend may be removed from such stock
certificates in accordance with the provisions of Rule 144(k) promulgated under
the Securities Act of 1933 and that such shares may be publicly sold under
Rule
144(k).
(g) Delivery
of Stock Certificates.
Assuming Xxxxx or Xxxxxxxx Xxxxxxx, Paramount and Xxxxxxx deliver their stock
certificates for the Shares to Xxxxxxx Xxxxxx Xxxxxx & Dodge LLP (“EAPD”),
000 Xxxx Xxx Xxxx Xxxxxxxxx, Xxxxx 0000, Xx. Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxx, P.A. by no later than July 14, 2006, SmartVideo
shall cause to be delivered to the Xxxxx Law Firm on or before July 19, 2006,
stock certificates representing the Registered Shares in the following
denominations: Xxxxx 698,000 Shares; Paramount 197,334 Shares; Xxxxxxx, 785,250
Shares; and Xxxxx 311,083 Shares. The stock certificates for the Shares
delivered to EAPD shall be accompanied by stock transfer instructions, stock
powers signed by each of Xxxxx, and Xxxxxxxx Xxxxxxx, Paramount and Xxxxxxx,
and
a medallion signature guarantee for each of such persons. In addition, Paramount
shall provide EAPD with certified resolutions of its Board of Directors
authorizing the person signing the stock powers on behalf of Paramount to act
in
its behalf in connection with this matter. If any of the stock certificates
for
all or a portion of Shares are delivered to EAPD after July 19, 2006, then
the
delivery to Xxxxx of the denominated Shares shall be delivered to the Xxxxx
Law
Firm by no later than five (5) days following the delivery of the last stock
certificate to EAPD.
3.
Release
of Claims by Claimant Parties,
As a
material inducement to SmartVideo to enter into this Agreement, the Claimant
Parties hereby irrevocably release SmartVideo 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 SmartVideo, and all persons acting by, through, under or in
concert with them, including without limitation, Xxxxxxx Xxxxxx, Xxxxxx X.
Xxxxxxx, Xxxxx Xxxxxx, Xxxxxxx Xxxxxxx 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, know 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
(“Claim” or “Claims”), which the Claimant Parties now have, or claim to have, or
which the Claimant Parties 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.
4.
Agreement
Not to Use Non-Public and/or Confidential Information by Claimant Parties.
The
Claimant Parties covenant and agree, for a period of five (5) years from the
Effective Date of this Agreement, not to use any non-public and/or Confidential
Information which is or may come into the possession or knowledge of the
Claimant Parties, including, but not limited to, any such information that
was
or is obtained through the Xxxxxxx arbitration (Matter No. 30 181 Y 00559 05),
Xxxxx litigation (Case No. 1:06-cv-0849-MHS) or Xxxxx litigation (Case No.
1:06-cv-0850-MHS), or through any other means not herein specified, in any
way
against the Releasees with respect to any Claim released herein. 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 SmartVideo’s business which is not generally known to its
competitors or the public and is subject to reasonable efforts to maintain
its
secrecy. 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 SmartVideo’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 SmartVideo’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 SmartVideo’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 SmartVideo (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.
-3-
5.
Agreement
Not to Disparage by Claimant Parties:
The
Claimant Parties agree 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 SmartVideo,
its subsidiaries or affiliates, its respective officers, directors, agents
or
employees, or the Releasees. Provided, however, that if any of the Claimant
Parties are required by any applicable law, regulation, statute, subpoena,
court
order or other compulsory process to disclose information related to SmartVideo,
such disclosure of truthful information shall not constitute a breach of this
section or of this Agreement.
6.
Agreement
Not to Assist by Xxxxx, Paramount, Xxxxxxx and Xxxxxxx.
Xxxxx,
Paramount, Xxxxxxx and Xxxxxxx covenant and agree not to institute or
participate in any way in anyone else’s actions against any of the Releasees
with respect to any Claim released herein, except as required by any subpoena,
court order, or other compulsory process.
7.
Dismissal.
Upon
receipt of the payment set forth in Section 2 above, Paramount and Xxxxx shall
immediately dismiss, with prejudice, Civil Action No. 1:06-cv-0849-MHS currently
pending in the United States District Court for the Northern District of
Georgia.
8.
Release
of Claims by SmartVideo.
SmartVideo hereby irrevocably releases the Claimant Parties 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 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 violation of any other legal or contractual duty arising under the
laws
of the State of Georgia or the laws of the United States (“Claim” or “Claims”),
which SmartVideo now has, or claims to have, or which SmartVideo at any time
heretofore had, or claimed to have, against the Claimant Parties, in each case
as to acts or omissions by the Claimant Parties occurring up to and including
the Effective Date.
-4-
9.
Agreement
Not to Disparage by SmartVideo.
SmartVideo agrees that, as part of the consideration for this Agreement, and
for
a period of three (3) years from the Effective Date, the members of the Board
of
Directors, and all SmartVideo officers covered by Section 16(a) of the
Securities Exchange Act of 1934, as amended, 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 or damage the reputation and good name of any of the Claimant Parties,
nor will they authorize, condone, or encourage any such disparagement from
others. Notwithstanding the foregoing, the Claimant Parties recognize and
acknowledge that SmartVideo will not be liable for unauthorized remarks by
individuals employed by or otherwise associated with SmartVideo, other than
the
members of the Board of Directors and the SmartVideo officers covered by Section
16(a) of the Securities Exchange Act of 1934, as amended. Provided, however,
that if SmartVideo or any of the Releasees are required by an applicable law,
regulation, statute, subpoena, court order, or other compulsory process to
disclose information related to any of the Claimant Parties, such disclosure
of
truthful information shall not constitute a breach of this Agreement. Moreover,
this Section 9 shall not apply to any communications: (1) between SmartVideo
and
its independent public auditors; (2) necessary to comply fully with all
applicable requirements and policies of federal and state laws, stock exchange
rules, and the rules and regulations of the Securities and Exchange Commission
and other federal and state agencies; (3) necessary to cooperate fully with
any
investigation or request for information from any state or federal governmental
agency, stock exchange, or regulatory organization; (4) necessary in the course
of preparing and filing appropriate tax returns or dealing with federal or
state
taxing authorities; (5) necessary in connection with obtaining advice from
legal
counsel; or (6) made in connection with any judicial or administrative
proceeding or arbitration with respect to which such communications are
relevant.
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 obtain specific performance or
injunctive relief pursuant to this Agreement shall be entitled to an award
of
its reasonable costs and expenses, including, without limitation, attorneys’
fees.
-5-
13.
Severability.
Except
for Sections 3, 4 and 5, 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. If
Section 3, 4 or 5 is declared illegal, invalid or otherwise unenforceable,
SmartVideo may, at its option, declare this entire Agreement null and
void.
14.
Construction.
Both
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.
No
Release from Future Actions or Inactions.
Nothing
contained herein shall be construed as a release by the Parties hereto of,
or an
agreement by the Parties hereto not to xxx on any claims, manner of actions,
causes of actions, whether at law or in equity, suits, judgments, debts, liens,
contracts, agreements, promises, liabilities, demands, damages, losses, costs,
expenses or disputes (including attorneys’ fees and costs) arising out of any
act, omission, matter, cause, conduct, claim, event or thing whatsoever which
may occur after the Effective Date of this Agreement to the end of
time.
16.
Amendment.
This
Agreement may not be modified, amended, supplemented, or terminated except
by a
written instrument executed by the Parties hereto.
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 SmartVideo:
|
Attn:
Chief Financial Officer w/ a copy also to:
Attn:
General Counsel
SmartVideo™
Technologies, Inc.
0000
Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx,
Xxxxxxx 00000
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If
to Claimant Parties:
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Xxxx
X. Xxxxx, Esquire
Xxxx
X. Xxxxx Law Associates, P.C.
0000
Xxx Xxxx Xxxx, Xxx. 000
Xxxxxx
Xxxx, XX 00000
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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.
-6-
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
SEVERANCE AGREEMENT AS SUCH PARTY’S OWN FREE ACT AND DEED.
Executed
this 30th
day of
June, 2006 by and between:
SmartVideo™
Technologies, Inc.
By:
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Its:
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VP
- Finance
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Witness:
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XXXXXXXXXXX
XXXXX
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Attest:
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PARAMOUNT
TRADING CO., INC.
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BY:
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XXXXX
XXXXXXX
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BY:
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XXXX
X. XXXXX, ESQUIRE
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BY:
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XXXX
X. XXXXX LAW ASSOCIATES, P.C.
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BY:
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-7-
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
SEVERANCE AGREEMENT AS SUCH PARTY’S OWN FREE ACT AND DEED.
Executed
this ______ day of June, 2006 by and between:
SmartVideo™
Technologies, Inc.
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By:
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Its:
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Witness:
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XXXXXXXXXXX
XXXXX
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Attest:
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PARAMOUNT
TRADING CO., INC.
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BY:
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XXXXX
XXXXXXX
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BY:
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XXXX
X. XXXXX, ESQUIRE
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BY:
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XXXX
X. XXXXX LAW ASSOCIATES, P.C.
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BY:
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-8-
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
SEVERANCE AGREEMENT AS SUCH PARTY’S OWN FREE ACT AND DEED.
Executed
this ______ day of June, 2006 by and between;
Smart
Video™ Technologies, Inc.
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By:
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Its:
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Witness:
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XXXXXXXXXXX
XXXXX
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Attest:
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PARAMOUNT
TRADING CO., INC.
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BY:
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XXXXX
XXXXXXX
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BY:
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X. XXXXX, ESQUIRE
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BY:
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X. XXXXX LAW ASSOCIATES, P.C.
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BY:
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-9-
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
SEVERANCE AGREEMENT AS SUCH PARTY’S OWN FREE ACT AND DEED.
Executed
this ______ day of June, 2006 by and between;
Smart
Video™ Technologies, Inc.
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By:
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Its:
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Witness:
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XXXXXXXXXXX
XXXXX
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Attest:
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PARAMOUNT
TRADING CO., INC.
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BY:
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XXXXX
XXXXXXX
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BY:
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XXXX
X. XXXXX, ESQUIRE
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BY:
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XXXX
X. XXXXX LAW ASSOCIATES, P.C.
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BY:
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-10-
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
SEVERANCE AGREEMENT AS SUCH PARTY’S OWN FREE ACT AND DEED.
Executed
this_____day of June, 2006 by and between:
SmartVideo™
Technologies, Inc.
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By:
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Its:
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Witness:
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XXXXXXXXXXX
XXXXX
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Attest:
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PARAMOUNT
TRADING CO., INC.
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BY:
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XXXXX
XXXXXXX
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BY:
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XXXX
X. XXXXX, ESQUIRE
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BY:
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XXXX
X. XXXXX LAW ASSOCIATES, P.C.
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BY:
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-11-
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SMARTVIDEO
TECHNOLOGIES, INC.
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BY:
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VP
- Finance
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-12-
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BY:
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XXXX
X. XXXXX LAW ASSOCIATES, P. C.
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BY:
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SMARTVIDEO
TECHNOLOGIES, INC.
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BY:
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XXXXX
XXXXXXX
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By:
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