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EXHIBIT 10.1
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This
Settlement Agreement and Mutual Release (the
“Agreement”) is effective the 23rd
day
of July 2007 (the “Effective Date”), and is by and
between Plaintiff, MANHATTAN INVESTMENTS, INC.
(“Manhattan Investments”); and Defendant,
UVUMOBILE, INC. F/K/A SMARTVIDEO TECHNOLOGIES, INC.
(“SmartVideo”) (Manhattan Investments, Inc. and
SmartVideo together may be referred to as the
“Parties” or as a “Party
”).
PRELIMINARY STATEMENTS
On
July 18, 2006, Manhattan Investments filed a Complaint in an
action in the United States District Court for the Northern
District of California, as Case No. C06-04379. The case was
then transferred to the United States District Court for the
Northern District of Georgia on November 13, 2006 (Action No.
06-CV-2824-HTW). The Lawsuit arises out of a dispute over the
removal of the restrictive legend from 49,795 shares of common
stock issued to Manhattan Investments, Inc. by
SmartVideo’s predecessor. Manhattan Investments
maintains its right to have the restrictive legend removed and
SmartVideo denies any allegations that it had a duty to remove
the restrictive legend.
The
Parties now desire to resolve the Lawsuit, and any and all
other actual or potential claims that may or could have been
brought between them (whether permissive or compulsory)
(“Claims”), without the necessity for further
litigation and expense by settling the Lawsuit and the Claims,
whether known or unknown regardless of whether such claims
were asserted in the Lawsuit, between them.
AGREEMENT
In
consideration of the foregoing, the agreements, mutual
covenants and conditions contained herein, and for other good
and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties agree as
follows:
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1.
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Incorporation of Recitals .
Each of the preliminary statements is deemed to be true and
correct, and the same are hereby incorporated by reference as if
fully stated herein.
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2.
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Consideration. As
consideration for this Agreement and the dismissal of the Lawsuit
with prejudice, and the relinquishment of the Claims, the Parties
have agreed that SmartVideo shall remove the restrictive legend on
the 49,795 shares of currently held common stock within seven (7)
business days of the Effective Date of this Agreement and shall pay
Manhattan Investments a sum of $35,000 within 15 days of closing on
an equity financing transaction. SmartVideo shall make its best
reasonable efforts to obtain equity financing within 120 days of
the Effective Date of this Agreement. If SmartVideo is unable to
obtain equity financing, then SmartVideo shall have no obligation
to pay Manhattan Investments the $35,000.
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SmartVideo
shall also issue 850,000 new shares of common stock to
Manhattan Investments (the “Common Stock”),
within
seven (7) business days following a determination by the Court
that the issuance of the Common Stock as part of the
settlement is fair, reasonable and adequate. The shares of
Common Stock so issued will be issued in reliance on the
exemption from the registration requirements of the Securities
Act of 1933, as amended (the “Securities Act”),
provided by Section 3(a)(10) thereof .
The parties will set a hearing with the Court at the earliest
date reasonably possible.
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3.
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Compliance with SEC. The
new shares are issued for “outstanding securities, claims or
property interests,” within the meaning of Section 3(a)(10)
of the 1933 Act, which includes the matters in the Lawsuit and the
Claims of Manhattan Investments, and such exchange is expressly
conditioned on an approved hearing of fairness of the terms and
conditions of said exchange, before the Court in the Northern
District of Georgia, hearing this case.
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4.
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Release and Satisfaction of the Claims .
Upon and within 2 business days of the completion of the exchange
described in paragraphs 2, and 3 Manhattan Investments shall file a
dismissal with prejudice of the Lawsuit with the Court. Effective
upon the completion of that exchange, Manhattan Investments hereby
releases, acquits, and forever discharges 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 (collectively referred to in this paragraph as
“SmartVideo”), from any and all liability to Manhattan
Investments including, but not limited to, any and all claims for
damages, equitable relief, costs and attorneys’ fees, as well
as any and all other Claims, whether known or unknown, whether now
existing or hereafter arising, based on anything SmartVideo has
done or failed to do from the beginning of time through the
effective date of this Agreement, and regardless of whether such
claims were asserted in the Lawsuit. Effective upon the filing of
the dismissal by Manhattan Investments, SmartVideo hereby releases,
acquits, and forever discharges Manhattan Investments 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 Manhattan Investments, and all persons acting by, through, under
or in concert with them, from any and all liability to SmartVideo,
including, but not limited to, any and all claims for damages,
equitable relief, costs and attorneys’ fees, as well as any
and all other Claims, whether known or unknown, whether now
existing or hereafter arising, based on anything Manhattan
Investments has done or failed to do from the beginning of time
through the effective date of this Agreement, and regardless of
whether such claims were asserted in the Lawsuit.
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5.
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Tax Liabilities .
Manhattan Investments agree
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