GENERAL RELEASE AND
SETTLEMENT AGREEMENT
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, Bruce and Donna Breit, Robert A. Breit,
James L. Chittaro, Joel Cohen, Robert Gruen, Lawrence Hanson,
Richard Himmelman, Ronald Himmelman, Karyn Keller, Peter M. Vilim
Revocable Trust and Robert Winskowicz (collectively the "Breit
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 "Breit Lawsuit");
WHEREAS, William B. Bandy, Thomas Bivens and J.
Mark Leho (collectively the "Bandy 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 "Bandy
Lawsuit");
WHEREAS, Christopher Devone (the "Devone
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 "Devone Lawsuit");
WHEREAS, the Richard J. Seifert Trust and the
Rita M. Seifert Trust (collectively the "Seifert 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 "Seifert
Lawsuit");
WHEREAS, John L. Walters and Robert T. Campbell
(collectively the "Walters 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 "Walters
Lawsuit");
WHEREAS, Steven Himmelman, Brian Boxer,
Vittoriano DiLuzio, Jerry Bratton, and Darren Breitkreuz
(collectively the "Other Claimants") believe they have certain
claims and rights against and with respect to the Company;
and
WHEREAS, Alan Frank and Alan L. Frank Law
Associates, P.C. (collectively "Frank") represent the Breit
Plaintiffs, the Bandy Plaintiffs, the Devone Plaintiff, the Seifert
Plaintiffs, the Walters Plaintiffs, and the Other Claimants with
respect to those certain claims and rights referenced
above;
WHEREAS, the Breit Plaintiffs, the Bandy
Plaintiffs, the Devone Plaintiff, the Seifert Plaintiffs, the
Walters Plaintiffs, the Other Claimants, and Frank (collectively
the "Clamant Parties") desire to resolve all claims and rights
alleged in the Breit Lawsuit, the Bandy Lawsuit, the Devone
Lawsuit, the Seifert Lawsuit, and the Walters 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 Frank as to the
proper allocation of the Common Stock. Assuming Frank 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
Frank 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 Frank. 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, Michael Criden, Justin A. Stanley,
Glenn Singer, Richard Bennett and Ron Warren (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
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