Exhibit
10.1
SETTLEMENT AGREEMENT
AND
GENERAL MUTUAL
RELEASE
This Settlement
Agreement and General Mutual Release (“Agreement”) is
made and entered into as of October ___, 2009 (the “Effective
Date”), by and among Ethos Environmental, Inc. and its wholly
owned subsidiary Ecomates, LLC (collectively, “ETHOS”),
Thrive Worldwide, LLC, Amy Black, Jack Peterson, and Craig Ellins
(collectively, “Thrive”) and MKM Opportunity Master
Fund, Ltd. (“MKM”).
RECITALS
A.
Whereas Ethos and Thrive
entered into an Outsourcing Agreement in February, 2009 (the
“Outsource Agreement”), whereby Thrive and Ethos set
forth the terms and conditions of an ongoing business relationship
by and between Thrive and Ethos.
B.
Whereas, Thrive and
Ethos are currently at odds relating to various terms and
conditions of the Outsource Agreement.
C.
Whereas, Ethos and the Thrive, as
a result of negotiations, have reached a resolution deemed fair and
equitable relating to the Outsourcing Agreement, pursuant to the
terms of this Agreement, Thrive and Ethos wish to compromise,
resolve, waive and release any and all claims, known or unknown, by
and between them as fully set forth herein which exist or may exist
today.
D.
Whereas, as part of this
Agreement, Thrive shall assign all of its rights, title and
interest hereunder to MKM in the manner set forth
herein.
E.
Whereas, each party,
without admitting any liability whatsoever, enters into this
Agreement to settle all disputes, claims and actions between the
Parties, as well as to settle any and all events or relationships
between the Parties.
AGREEMENT
NOW, THEREFORE, in
consideration of the mutual covenants set forth in this Agreement,
and for other good and valuable consideration, the receipt and
adequacy of which is acknowledged, the Parties covenant and agree
as follows:
A.
Recitals .
The foregoing recitals
are true and correct and incorporated by reference
herein.
B.
Consideration
.
As full consideration
for this Agreement:
1.
Cash
Payment .
Ethos shall issue a six (6) month Promissory Note (the
“Note”) to Thrive in the principal amount of $80,000
which shall accrue simple interest at a rate of 10% per annum. A
copy of the Note is attached hereto as Exhibit A.
2.
Common Stock: Ethos
shall issue to Thrive one million (1,000,000) restricted common
shares of Ethos common stock (the “Shares”).
3.
Asset Assignment to
Ethos .
Thrive shall immediately, upon the signing of this Agreement,
irrevocably transfer all rights, title and interest to any and all
assets (the “Assets”) used by Thrive for the benefit of
Ethos, or in any other way held by Thrive on behalf of Ethos,
including but not limited to the Exigo software system, the service
agreement between Thrive and Exigo Office, Inc.
(“Exigo”) dated on or about February 24, 2009, and the
ownership to the URL www.ecomates.com and any related URLs.
A copy of the Asset Assignment Agreement is attached hereto as
Exhibit B.
4.
Expenses
. It is agreed and
understood that Thrive shall be liable for any and all amounts,
fees and expenses due on or before June 15, 2009, and that Ethos
shall be liable for any and all amounts, fees and expenses due
after June 15, 2009, with the understanding that any fees related
to Exigo or the gas and grocery program shall be the liability of
Ethos as of June 1, 2009.
5.
Securities held by
Thrive . Any
and all securities of Ethos, including but not limited the options
granted and/or due to Thrive per the Outsource Agreement, held
and/or due to Thrive prior to the execution hereof shall be
immediately returned to Ethos to be canceled upon execution of this
Agreement.
6.
Ecomates Hierarchal
Position .
Thrive’s position within the Ecomates multi-level marketing
network shall be relinquished. However, Ethos and Thrive agree to
work together on a case by case basis if for the benefit of
Ethos/Ecomates for which Thrive shall receive fair and reasonable
compensation, which fair and reasonable compensation shall be
determined by the Neutrals in writing and signed by both
Neutrals.
7.
Thrive/MKM Concurrent
Transaction. Thrive and MKM hereby agree in exchange for
consideration, the sufficiency of which is hereby acknowledged,
Thrive shall; (i) instruct Ethos to issue the Note directly to MKM;
and, (ii) instruct Ethos to issue the Shares directly to
MKM.
C.
Breach; Action for
Damages .
The parties hereto may seek damages against the other resulting
from a breach of this Agreement, or the breach of any Exhibit
hereto. In the event of any such action, the prevailing Party shall
be entitled to all legal and equitable relief, including without
limitation, reimbursement of attorneys’ fees and
expenses.
D.
No
Waiver .
The waiver by any party of the performance of any covenant,
condition, promise or breach shall not invalidate this Agreement,
nor shall it waive that Party’s or any other Party’s
right to future performance of such covenant, condition or promise.
The failure to pursue or the delay in pursuing any remedy or in
insisting upon full performance any covenant, condition or promise
shall not prevent a party from later pursuing remedies or insisting
upon full performance for the same or similar defaults, breaches or
failures.
E.
Notices . All notices, approvals, requests,
demands and other communications required or permitted to be given
under this Agreement shall be in writing and shall either be
delivered in writing personally or sent by overnight mail delivery
or sent by certified first class mail, postage prepaid, deposited
in the United States mail, and properly addressed to the Party at
its address set forth on the signature page hereto, or at any other
address that such Party may designate by written notice to the
other Parties. Notice shall be effective immediately upon personal
delivery, after five (5) calendar days if made by regular mail or
after two (2) business days if given by overnight mail or by
facsimile.
F.
Mutual Release
between Thrive and Ethos . Thrive, on the one hand, and
Ethos, on the other hand, for themselves and their respective
predecessors, successors, affiliates, officers, directors,
principals, partners, employees, executors, beneficiaries,
representatives, agents, assigns, attorneys, and all others
claiming by or through them hereby release and forever discharge
each other and their respective predecessors, successors,
affiliated entities, subsidiaries, parent companies, affiliates,
officers, directors, principals, partners, employees, executors,
beneficiaries, representatives, agents, assigns, and attorneys from
any and all actions, causes of action, suits, proceedings, debts,
contracts, controversies, agreements, promises, damages, claims and
demands of any kind, nature or description, known or unknown, of
any kind whatsoever, whether based upon a tort, contract or other
theory of recovery, and whether for compensatory damages, punitive
damages or other relief in law, equity or otherwise, that any of
the Parties has ever had, now has, or hereafter can, shall or may
have for, upon, or by reason of any matter, cause or thing
whatsoever from the
