Contract
EXHIBIT
10.79
This
Settlement Agreement
(“Agreement”) is entered into as of this 31st day of December 2001, by
and
between eRoomSystem Technologies, Inc., a Nevada corporation (“eRoomSystem”
or the “Company”),
and
Hall Communications, Inc., a Nevada corporation (“HALL”). eRoomSystem and HALL
are collectively referred to hereinafter as the “Parties”.
RECITALS
WHEREAS,
on
March 30, 2000, the Parties entered into a Letter Agreement (hereinafter,
“Advertising Agreement”), setting forth the terms upon which HALL would provide
advertising and marketing services on behalf of eRoomSystem;
WHEREAS,
the terms of the Advertising Agreement provided for monthly payments of
$43,687.50 during months five (5) through twelve (12) thereof;
WHEREAS,
as of the date hereof, the Parties agree that eRoomSystem’s outstanding
obligation under the Advertising Agreement is $279,111.08 (the “Outstanding
Obligation”);
WHEREAS,
pursuant to the terms of the Advertising Agreement, eRoomSystem issued
to HALL a
warrant to purchase 125,000 shares of its common stock, exercisable at
$4.80 per
share at any time through December 31, 2001 (the “Warrant”);
WHEREAS,
the Parties mutually agreed to terminate the Warrant on March 29, 2001,
and
eRoomSystem issued a new warrant in the amount of 125,000 shares, exercisable
at
$0.90 per share through December 31, 2001 (the “Replacement
Warrant”);
WHEREAS,
the Replacement Warrant was not exercised by HALL and expired pursuant
to the
terms thereof on even date herewith; and
WHEREAS,
the
Advertising Agreement expired on March 30, 2001 and the Parties desire
to modify
the remaining payment obligations under the Advertising Agreement as follows:
(i) eRoomSystem shall pay HALL $100,000 in twelve (12) equal monthly
installments as defined hereinbelow, and (ii) eRoomSystem shall issue HALL,
or
its assigns, a warrant to purchase 200,000 shares of common stock of
eRoomSystem, exercisable at $0.26 per share for a period five (5) years
(the
“Settlement Warrant”).
NOW,
THEREFORE,
for and
in consideration of the premises and mutual covenants, agreements,
understandings, undertakings, representations, warranties and promises,
and
subject to the conditions hereinafter set forth, and intending to be legally
bound thereby, the parties do hereby covenant and agree that the Recitals
set
forth above are true and accurate, and further covenant and agree as
follows:
Section
I - Terms
HALL
agrees to accept payment of the Outstanding Obligation on the following
terms:
eRoomSystem shall pay HALL $8,333.33 on the first day of each month, commencing
March 1, 2002 and concluding on February 1, 2003. In addition thereto,
upon
execution of this Agreement, eRoomSystem shall issue HALL the Settlement
Warrant
in the form attached hereto as Exhibit A.
Section
II - Mutual Release
A. Mutual
Release.
For
valuable consideration, the sufficiency of which is hereby acknowledged,
the
Parties hereby forever release, discharge and acquit one another, including
each
party’s respective successors, predecessors, parents, affiliates, subsidiaries,
divisions, including, but not limited to, their respective past or present
officers, directors, stockholders, managers, employees, advisors, consultants,
insurers, attorneys, accountants, agents and assigns (collectively, the
“Released Parties”) from any and all claims, demands, damages, debts,
liabilities, actions, causes of action or suits of whatsoever kind or nature.
Without limiting its scope, this release includes claims whether known
or
unknown, unforeseen, or unanticipated and regardless of type, cause or
nature,
including, but not limited to, all tort or contractual (express or implied)
claims.
B.
Future
Litigation. The
Parties covenant and agree to forever refrain from encouraging, instituting,
prosecuting, maintaining, assisting or participating in, any legal proceedings,
suits or actions against any of the Released Parties, except if necessary
to
enforce this Agreement.
C.
Confidentiality.
The
existence and the terms of this Agreement shall be confidential, and neither
party shall reveal or engage in any action which either knows or can expect
will
result in the revelation of any information concerning the contents of
this
Agreement to anyone except as required by law or the rules of any regulatory
body or stock exchange. This Agreement may, however, be used as evidence
in a
subsequent proceeding in which any of the Released Parties allege a breach
of
this Agreement.
Section
III - Future Services
All
future services performed by HALL on behalf of the Company shall be on
a
project-by-project basis. The Parties agree that all such services shall
be
provided on a fixed-cost basis agreed to prior to the commencement of such
services.
Section
IV - General Provisions
A. Governing
Law.
It is
agreed that this Agreement shall be governed by, construed, and enforced
in
accordance with the laws of the State of Nevada.
B. Entire
Agreement.
This
Agreement shall constitute the entire agreement between the Parties with
respect
to their mutual release of claims, and any prior understanding or representation
of any kind concerning such release that precedes the date of this Agreement
shall not be binding upon either party except to the extent incorporated
in this
Agreement.
C. Neutral
Interpretation.
The
provisions
contained herein shall not be construed in favor of or against any party
because
that party or its counsel drafted this Agreement, but shall be construed
as if
all parties prepared this Agreement, and any rules of construction to the
contrary are hereby specifically waived. The Parties negotiated the terms
of
this Agreement at arm’s length.
D.
Waiver
of
Jury Trial.
Each
party hereto hereby irrevocably waives all rights to trial by jury in any
action
or proceeding arising out of or relating to this agreement or any transaction
contemplated hereby and for any counterclaim therein.
E.
Notices.
All
notices, requests or other communications to the Parties shall be delivered
via
registered or overnight mail, or via facsimile, as
follows:
If
to
eRoomSystem:
Xxxxxxx
X. Xxxxxx, Esq.
eRoomSystem
Technologies, Inc.
000
Xxxxx
0000 Xxxx
Xx.
Xxxxxx, XX 00000\
000-000-0000
(facsimile)
If
to
HALL:
Xxxx
Xxxx
Xxxx
Communications, Inc.
0000
Xxxxxx Xxxxxxxx Xxxxx
Xxx
Xxxxx, XX 00000
000-000-0000
(facsimile)
F.
Severability.
If
one or
more of the provisions of this Agreement shall be for any reason whatever
held
invalid or unenforceable, such provisions shall be deemed severable from
the
remaining covenants, agreements and provisions of this Agreement and such
invalidity or unenforceability shall in no way affect the validity or
enforceability of such remaining provisions, the rights of any parties
hereto,
or the rights of the Documents and Disbursements Custodian or the Lender.
To the
extent permitted by law, the parties hereto waive any provision of law
which
renders any provision of this Agreement invalid or unenforceable in any
respect.
G.
Binding
Effect.
The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the respective successors and assigns of the parties hereto.
In
Witness Whereof,
the
parties hereto have caused this Agreement to be executed as of the date
first
written above.
| eRoomSystem Technologies, Inc., | Hall Communications, Inc., | |
| A Nevada Corporation | A Nevada Corporation | |
|
|
||
|
By:
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X.
Xxxxxx
Secretary, General
Counsel
|
|
By:
/s/
Xxxx Xxxx
Xxxx
Xxxx
Chief
Executive Officer, President
|
