GENERAL RELEASE AND SETTLEMENT AGREEMENT
EXHIBIT
10.1
This
General Release and Settlement Agreement (“Agreement”) is made this 11th day of
January, 2007 by and between SmartVideo™ Technologies, Inc. d/b/a uVuMobile™
(the “Company”) and the Claimant Parties (as defined herein). The term “Parties”
shall refer to the Claimant Parties and the Company collectively.
WITNESSETH:
WHEREAS,
Xxxxx and Xxxxx Xxxxx, Xxxxxx X. Xxxxx, Xxxxx X. Xxxxxxxx, Xxxx Xxxxx, Xxxxxx
Xxxxx, Xxxxxxxx Xxxxxx, Xxxxxxx Xxxxxxxxx, Xxxxxx Xxxxxxxxx, Xxxxx Xxxxxx,
Xxxxx
X. Xxxxx Revocable Trust and Xxxxxx Xxxxxxxxxx (collectively the "Xxxxx
Plaintiffs") have asserted certain claims and rights against and with respect
to
the Company, including, but not limited to, those claims made in Civil Action
No. 1:06-CV-850-MHS currently pending in the United States District Court for
the Northern District of Georgia (the "Xxxxx Lawsuit");
WHEREAS,
Xxxxxxx X. Xxxxx, Xxxxxx Xxxxxx and J. Xxxx Xxxx (collectively the "Xxxxx
Plaintiffs") have asserted certain claims and rights against and with respect
to
the Company, including, but not limited to, those claims made in Civil Action
No. 1:06-CV-2389-MHS currently pending in the United States District Court
for
the Northern District of Georgia (the "Xxxxx Lawsuit");
WHEREAS,
Xxxxxxxxxxx Xxxxxx (the "Xxxxxx Plaintiff") has asserted certain claims and
rights against and with respect to the Company, including, but not limited
to,
those claims made in Civil Action No. 1:06-CV-2388-MHS currently pending in
the
United States District Court for the Northern District of Georgia (the "Xxxxxx
Lawsuit");
WHEREAS,
the Xxxxxxx X. Xxxxxxx Trust and the Xxxx X. Xxxxxxx Trust (collectively the
"Xxxxxxx Plaintiffs") have asserted certain claims and rights against and with
respect to the Company, including, but not limited to, those claims made in
Civil Action No. 1:06-CV-2391-MHS currently pending in the United States
District Court for the Northern District of Georgia (the "Xxxxxxx
Lawsuit");
WHEREAS,
Xxxx X. Xxxxxxx and Xxxxxx X. Xxxxxxxx (collectively the "Xxxxxxx Plaintiffs")
have asserted certain claims and rights against and with respect to the Company,
including, but not limited to, those claims made in Civil Action No.
1:06-CV-2390-MHS currently pending in the United States District Court for
the
Northern District of Georgia (the "Xxxxxxx Lawsuit");
WHEREAS,
Xxxxxx Xxxxxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx XxXxxxx, Xxxxx Xxxxxxx, and Xxxxxx
Xxxxxxxxxx (collectively the "Other Claimants") believe they have certain claims
and rights against and with respect to the Company; and
WHEREAS,
Xxxx Xxxxx and Xxxx X. Xxxxx Law Associates, P.C. (collectively "Xxxxx")
represent the Xxxxx Plaintiffs, the Xxxxx Plaintiffs, the Xxxxxx Plaintiff,
the
Xxxxxxx Plaintiffs, the Xxxxxxx Plaintiffs, and the Other Claimants with respect
to those certain claims and rights referenced above;
WHEREAS,
the Xxxxx Plaintiffs, the Xxxxx Plaintiffs, the Xxxxxx Plaintiff, the Xxxxxxx
Plaintiffs, the Xxxxxxx Plaintiffs, the Other Claimants, and Xxxxx (collectively
the "Clamant Parties") desire to resolve all claims and rights alleged in the
Xxxxx Lawsuit, the Xxxxx Lawsuit, the Xxxxxx Lawsuit, the Xxxxxxx Lawsuit,
and
the Xxxxxxx Lawsuit (collectively the "Lawsuits") 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 January 11, 2007 (“the Effective
Date”).
2. Payment
and Registration Rights.
(a) Payment.
The
Company will issue Six-Million (6,000,000) shares of common stock (the “Common
Stock”) to the Claimant Parties to be allocated to them as solely agreed to by
and between the Claimant Parties. The inability of the Claimant Parties 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 Xxxxx as to the proper allocation of the Common Stock.
Assuming Xxxxx notifies the Company in writing of the proper allocation of
the
Common Stock on or before January 16, 2007, the Company will use its best
efforts to issue the applicable stock certificates and deliver them to Xxxxx
by
January 30, 2007.
(b) Taxes
and Indemnity.
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 Xxxxx. The Company will issue to each of the Claimant Parties an
IRS
Form 1099 reflecting their pro rata share (inclusive of attorneys' fees) of
the
Share Basis for the Common Stock. The Claimant Parties 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 Claimant
Parties, including but not limited to reporting the Share Basis for the Common
Stock on IRS Form 1099.
(c) Legend
on Common Stock.
The
Claimant Parties 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.
(d) Registration
Rights Agreement.
The
Parties agree to enter into a Registration Rights Agreement (the “Registration
Rights Agreement”) which shall include, among others, the following terms:
(i) The
Company will prepare a registration statement on Form S-1 covering the resale
of
the Common Stock under Rule 415 of the Securities Act of 1933 (the “Registration
Statement”) which will be filed with the United States Securities and Exchange
Commission (the "SEC") on or before February 12, 2007. The Company shall pay
for
the cost of the Registration Statement as set forth in the Registration Rights
Agreement. The Company will use its best efforts to have the Registration
Statement declared effective by the SEC on or before April 5, 2007.
Notwithstanding the above, if the SEC notifies the Company that the SEC intends
to review the Registration Statement, the Company will use its best efforts
to
have the Registration Statement become effective as soon as reasonably practical
after the SEC review, but in no event will the Company be required to meet
the
April 5, 2007 deadline.
(ii) The
Company will use its best efforts for a period of five (5) years to maintain
the
effectiveness of the Registration Statement in accordance with the terms of
the
Registration Rights Agreement. Notwithstanding the above, the Registration
Rights Agreement shall provide that the Company may suspend the use of the
Registration Statement for periods not to exceed thirty days in length if,
in
the good faith opinion of the Board of Directors of the Company, after
consultation with counsel, material, nonpublic information exists, including
without limitation, due to the passage of time or the existence of pending
material corporate developments, the public disclosure of which would be
necessary to cause the Registration Statement to be materially true and to
contain no material misstatements or omissions, and in each such case, where,
in
the good faith opinion of the Board of Directors, such disclosure will require
time to develop or would be reasonably likely to have a material adverse effect
on the Company.
(iii) Claimant
Parties will provide information as is reasonably requested by the Company
be
included in the Registration Statement. All of such information shall be true
and correct in all material respects.
The
final
terms of the Registration Rights Agreement shall be as mutually agreed to by
the
Parties.
3. Release
of Claims by Claimant Parties.
As a
material inducement to the Company to enter into this Agreement, the Claimant
Parties 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, 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, 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 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. Notwithstanding the above, the Claimant Parties shall continue to own
the
shares and warrants, if any, they owned prior to the Effective Date; however,
claims accruing or arising prior to the Effective Date relating to those shares
and warrants are released hereby. The terms and conditions of such warrants,
if
any, shall continue as stated in the
applicable
warrant agreements between the Parties, without any right or claim to additional
or better terms sought in (or similar to those sought in) the
Lawsuits.
4. Covenants
Not to Xxx.
The
Xxxxx Plaintiffs, the Xxxxx Plaintiffs, the Xxxxxx Plaintiff, the Xxxxxxx
Plaintiffs, the Xxxxxxx Plaintiffs and the Other Claimants agree 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
Parties 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
Xxxxx Plaintiffs, the Xxxxx Plaintiffs, the Xxxxxx Plaintiff, the Xxxxxxx
Plaintiffs, the Xxxxxxx Plaintiffs and the Other Claimants shall immediately
destroy all pleadings, depositions, files, correspondence, computer records,
disks, and other documents obtained in the Lawsuits or relating to the Lawsuits
or the Claims (collectively the “Files”). Xxxxx 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
Xxxxx Plaintiffs, the Xxxxx Plaintiffs, the Xxxxxx Plaintiff, the Xxxxxxx
Plaintiffs, the Xxxxxxx Plaintiffs and the Other Claimants represent and agree
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.
8. Agreement
Not to Use 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 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 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 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 the Company,
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 the
Company, such disclosure of truthful information shall not constitute a breach
of this section or of this Agreement, provided that the Claimant Parties give
the Company reasonable advance notice of the request for such
disclosure.
10. Dismissal.
Within
48 hours of delivery of the stock certificates to Xxxxx as provided in paragraph
2(a) hereon, Xxxxx, on behalf of the Claimant Parties, shall dismiss with
prejudice the Lawsuits and the proceeding pending in the United States District
Court for the Southern District of Florida, Fort Lauderdale Division, Civil
Action No. 0:06-CV-61800-Dimitrouleas.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. Retention
of Xxxxx.
Xxxxx
agrees to consult with and/or represent the Company at the Company's option
in
connection with the filing or evaluation of or assistance with, one or more
claims which the Company may have against third parties. In addition, Xxxxx
agrees to assist the Company in other legal matters, as needed (and subject
to
reasonable time
limitations).
As a result, Xxxxx understands and agrees that he will not be able to litigate
against 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) in the
future, unless authorized in writing by the Company.
17. Consent
Motions.
The
Parties agree to immediately file consent motions to stay rulings on and
responses to motions pending in the Lawsuits. The Parties also agree to file
a
consent motion in the Xxxxx litigation requesting that the court seal the entire
record of the proceeding. Finally, the Parties agree that no further documents
(pleadings, depositions, etc…) shall be filed in any of the Lawsuits by either
Party, except dismissals of the Lawsuits.
18. Amendment.
This
Agreement may not be modified, amended, supplemented, or terminated except
by a
written instrument executed by the Parties hereto.
19. 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.
20. 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
SmartVideo™
Technologies, Inc.
d/b/a
uVuMobile™
0000
Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx,
Xxxxxxx 00000
|
|
|
|
|
If
to Claimant Parties:
|
Xxxx
X. Xxxxx, Esquire
Xxxx
X. Xxxxx Law Associates, P.C.
0000
Xxx Xxxx Xxxx, Xxx. 000
Xxxxxx
Xxxx, XX 00000
|
21. 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.
22. 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 11th day of January, 2007 by and between:
SmartVideo™
Technologies, Inc. d/b/a uVuMobile™
By:
/s/
Xxxxxxx X. Xxxxxxxx
Its: Chief
Financial Officer
/s/
Xxxxx
Xxxxx
XXXXX XXXXX
/s/
Xxxxx
Xxxxx
XXXXX XXXXX
/s/
Xxxxxx X. Xxxxx
XXXXXX
X.
XXXXX
/s/
Xxxxx
X. Xxxxxxxx
XXXXX
X.
XXXXXXXX
/s/
Xxxx
Xxxxx
XXXX
XXXXX
/s/
Xxxxxx Xxxxx
XXXXXX
XXXXX
/s/
Xxxxxxxx Xxxxxx
XXXXXXXX
XXXXXX
/s/
Xxxxxxx Xxxxxxxxx
XXXXXXX
XXXXXXXXX
/s/
Xxxxxx Xxxxxxxxx
XXXXXX
XXXXXXXXX
/s/
Xxxxx
Xxxxxx
XXXXX
XXXXXX
/s/
Xxxxx
X. Xxxxx
XXXXX
X.
XXXXX
/s/
Xxxxxx Xxxxxxxxxx
XXXXXX
XXXXXXXXXX
/s/
Xxxxxxx X. Xxxxx
XXXXXXX
X. XXXXX
/s/
Xxxxxx Xxxxxx
XXXXXX
XXXXXX
/s/
J.
Xxxx Xxxx
J.
XXXX
XXXX
/s/
Xxxxxxxxxxx Xxxxxx
XXXXXXXXXXX
XXXXXX
/s/
Xxxxxxx X. Xxxxxxx
XXXXXXX
X. XXXXXXX
/s/
Xxxx
X. Xxxxxxx
XXXX
X.
XXXXXXX
/s/
Xxxx
X. Xxxxxxx
XXXX
X.
XXXXXXX
/s/
Xxxxxx X. Xxxxxxxx
XXXXXX
X.
XXXXXXXX
/s/
Xxxxxx Xxxxxxxxx
XXXXXX
XXXXXXXXX
/s/
Xxxxx
Xxxxx
XXXXX
XXXXX
/s/
Xxxxxxxxxx Xxxxxxx
XXXXXXXXXX
XXXXXXX
/s/
Xxxxx
Xxxxxxx
XXXXX
XXXXXXX
/s/
Xxxxxx Xxxxxxxxxx
XXXXXX
XXXXXXXXXX
/s/
Xxxx
X. Xxxxx, Esquire
XXXX
X.
XXXXX, ESQUIRE
XXXX
X.
XXXXX LAW ASSOCIATES, P.C.
By:
/s/
Xxxx
X. Xxxxx, Esquire
