SETTLEMENT AND RELEASE
AGREEMENT
This Settlement
and Release Agreement (the “Agreement”) is entered into
on this _____ day of September 2008 by and among InterClick, Inc.
f/k/a Customer Acquisition Network Holdings, Inc.
(“InterClick”), Options Media Group Holdings, Inc. and
its subsidiaries (collectively, “Options”) and Hagai
Shechter (“Shechter”).
WHEREAS,
InterClick and Shechter are parties to that certain Agreement and
Plan of Merger dated December 18, 2007 (“Merger
Agreement”) and that certain Employment Agreement dated
January 4, 2008 (“Employment Agreement”).
WHEREAS, the
certain disputes have arisen between the parties regarding the
Merger Agreement and Employment Agreement.
WHEREAS,
InterClick and Shechter have agreed to compromise and
settle all claims arising between them on the terms and conditions
set forth in this Agreement.
WHEREAS,
Options assumed liability for the Employment Agreement.
NOW THEREFORE,
in consideration of the mutual covenants and agreements set forth
herein, and other consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as
follows:
The foregoing
recitals are true and correct material representations that are
incorporated herein by reference.
a. Upon
the execution of this Agreement, InterClick shall deliver the sum
of $600,000 payable to the John Arrastia, Jr. P.A. Trust Account
for the benefit of Shechter.
b. In
addition, InterClick shall deliver a promissory note, in the form
of Exhibit “A” (the “Note”) to Shechter in
the sum of $500,000, payable in two equal installments on October
15, 2008 and January 15, 2009. The Note is attached and
incorporated by reference into this Agreement.
c. Options
and Shechter shall execute a commercial lease in the form of
Exhibit “B”.
|
|
Distribution of Settlement Funds and Executed
Documents :
|
The parties
agree that all executed settlement documents shall be delivered to
Robert Wayne Pearce, P.A. to be held in escrow. Upon
receipt of all settlement documentation from each party and receipt
of the settlement check and Note from InterClick, Robert Wayne
Pearce, P.A. shall deliver a complete set of executed settlement
documents to each party and the settlement check and Note to John
Arrastia, Jr. P.A. for the benefit of Shechter.
|
|
Resignation and Termination
:
|
The execution
of this Agreement shall operate as Shechter’s resignation
from all employment at InterClick and Options and as an officer of
Options. This resignation shall not be construed as
“cause” or “good reason”, as defined in the
Employment Agreement, and the parties shall construe the
resignation as a mutually-agreed upon separation.
Options shall
attempt to effect the removal of Shechter from any and all personal
guaranties for vendor relationships that relate to or arise from
the Merger Agreement and subsequent events arising from that
agreement, specifically identified as : (a) Marlin
Leasing A/C 001-037-4743-002; (b) Marlin Leasing A/C
001-037-4743-001; (c) American Express A/C 371530167691002; and (d)
American Express A/C 371546391201004. In the event
that Options is unable to effect the removal of Shechter as
guarantor from the obligations identified as Section 5(b)-(d)
within 5 days of this Agreement, it shall pay off and discharge
those obligations in full and indemnify and hold harmless Shechter
from any and all damages for any action filed in connection with
these obligation. In the event that Options is
unable to effect the removal of Shechter as guarantor from the
obligation identified as 5(a) within 5 days of this Agreement,
Options shall deposit a sum equal to the full payout of that
obligation, including principal, interest, fees, and costs, into
the trust account of its attorneys, Harris Cramer LLP with
irrevocable instructions that the sum shall be solely used for the
monthly payment of the obligation, and Options shall pay off and
discharge those obligations in full, and indemnify and hold
harmless Shechter from any and all damages for any action filed in
connection with these obligation.
Notwithstanding
the provisions of Paragraph 4 of this Agreement, Shechter shall be
fully vested and entitled to the options to purchase 300,000 shares
of InterClick common stock in accordance with all of the terms
within the Options Grant except they shall only be exercisable, as
follows: 1) the option to purchase 100,000 shares of InterClick
common stock shall not be exercised before January 15, 2009; and 2)
the option to purchase 200,000 shares of InterClick common stock
shall not be exercised before one (1) year from the date of this
Agreement. InterClick, pursuant to the terms of the
Option Grant, shall, upon Shechter’s exercise of his rights
and payment of the exercise price issue shares of InterClick common
stock to Shechter. Shechter and Options agree that
neither party has any obligation or liability to the other under
the Employment Agreement or otherwise.
In addition to
the executed settlement documents, Shechter shall deliver a duly
executed stock certifica
