SETTLEMENT AGREEMENT AND MUTUAL RELEASERelease Agreement |
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MANHATTAN INVESTMENTS, INC | UVUMOBILE, INC F/K/A SMARTVIDEO TECHNOLOGIES, INC. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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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 agrees that it is wholly and solely responsible
for
the evaluation of any legal or financial obligations related to the
tax
liability or implication of this compromise, the issuance of new
shares of
common stock, the relinquishment of the Claims, and the dismissal
of the
Lawsuit.
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6.
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Warranties.
The Parties warrant that no promises or inducements have been offered
except as set forth herein, that this Agreement is executed without
reliance upon any statements or representations by persons or parties
released or their representatives concerning the nature and extent
of the
damages and/or legal liability therefor; that it is binding on the
Parties, as well as their respective companies, organizations, successors,
agents, heirs and assigns. The Parties further warrant that they
are
legally competent and authorized to execute this Agreement, and that
they
accept full responsibility
therefor.
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7.
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Compromise.
This Agreement constitutes a full and final compromise and settlement
of
any and all disputes between the Parties, known or unknown, including,
but
not limited to, the Lawsuit and the Claims, which are disputed and
uncertain, and about which Manhattan Investments and SmartVideo make
no
admissions as to validity or
enforceability.
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8.
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Reliance
on Own Judgment and Legal Consultation.
Each of the Parties acknowledges that it relies wholly upon advice
of
counsel and its own judgment, belief and knowledge as to the nature,
extent and duration of the issues, claims, defenses, rights and
obligations relating to the Lawsuit, Claims, and this Agreement,
and each
represents that it has not been influenced to any extent whatsoever
in
making this Agreement by any representations or statements concerning
the
Lawsuit, Claims or regarding any other matters made by persons, firms,
or
corporations who are hereby released, or by any person or persons
representing them. The Parties acknowledge that they have retained
and
consulted their own attorneys in executing this Agreement and the
legal
effect thereof.
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9.
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Representations.
Manhattan Investments and SmartVideo further represent and warrant
as
follows:
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