SETTLEMENT AGREEMENT AND MUTUAL RELEASE
Exhibit
10.1
AND
MUTUAL RELEASE
This
Confidential Settlement Agreement and Mutual Release (“Agreement”) is
dated as of October 5, 2007 and is hereby entered into between XXXX XXXXXX
(“Xxxxxx”), and WINSONIC DIGITAL MEDIA GROUP,
LTD (“Winsonic” or the
“Company”).
RECITALS
WHEREAS,
certain claims and disputes between the parties have arisen as a result of
certain acts and occurrences which are the subject of a civil action (“Civil
Action”) styled, Xxxx Xxxxxx v. Winsonic Digital Media Group, Ltd; Xxxx
Xx. X000000, currently pending before the Eighth Judicial District Court
in the
State of Nevada, Department 13; and
WHEREAS,
the parties, without conceding or admitting liability, conclude that it serves
their respective interests to avoid the expenditure of additional time, effort
and resources in litigating their disputes and in continuing the Civil Action,
and that they now wish to fully, finally and forever settle and compromise
their
claims and disputes against each other, including but not limited to any
and all
claims to attorneys fees, costs and other expenses, and to release, discharge
and terminate all claims, demands, controversies, suits, causes of action,
damages, rights, liabilities and obligations which the parties may have against
each other, including but not limited to, the claims and counterclaims set
forth
in the Civil Action, which either have been asserted or which could have
been
asserted.
NOW,
THEREFORE, in consideration of the following terms, covenants and conditions
set
forth herein, the parties hereby agree as follows:
SETTLEMENT
TERMS
1. Simultaneously
with the execution of this Agreement, Winsonic shall issue to Yalley one
million, eight hundred sixty four thousand, two hundred and eighty-six
(1,864,286) restricted shares of common stock of the Company.
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a.
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These
shares are being issued with a Restrictive Legend expiration date
of
December 9, 2007.
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b.
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The
issuance of these shares has been approved by the Board of Directors
of
Winsonic, as evidenced by the Written Consent of the Board of Directors
attached hereto as Exhibit “A”.
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c.
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Simultaneously
with the execution of this Agreement, Winsonic and its counsel
shall
execute, and will cause to be delivered to Pacific Stock Transfer
Company
(“Pacific”) within three (3) business days following the
execution of this Agreement the Opinion Letter attached
hereto as Exhibit “B.”
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Simultaneously
with the execution of this Agreement, Winsonic shall issue to Yalley
one
hundred thousand (100,000) restricted shares of common stock of
the
Company.
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a.
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These
shares are being issued with a Restrictive Legend expiration date
of
October 5, 2009.
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b.
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The
issuance of these shares has been approved by the Board of Directors
of
Winsonic, as evidenced by the Written Consent of the Board of Directors
attached hereto as Exhibit “A”.
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c.
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Simultaneously
with the execution of this Agreement, Winsonic and its counsel
shall
execute, and will cause to be delivered to Pacific Stock Transfer
Company
(“Pacific”) within three (3) business days following the
execution of this Agreement the Opinion Letter attached
hereto as Exhibit “C”.
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3. Simultaneously
with the execution of this Agreement, Winsonic shall issue to Yalley an Option
to purchase five hundred thousand (500,000) shares of restricted common stock
of
the Company at the price of one dollar ($1.00) per share. The
purchase Option shall vest immediately and Yalley shall have the right to
exercise the purchase option up to December 9, 2010.
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a.
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The
issuance of this purchase Option has been approved by the Board
of
Directors of Winsonic, as evidenced by the Written Consent of the
Board of
Directors attached hereto as Exhibit
“A”.
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4. Simultaneously
with the execution of this Agreement, Yalley, Winsonic, and Pacific shall
execute the Stipulation and Order for Dismissal attached hereto as Exhibit
“D”. Upon the issuance of the shares detailed in Paragraphs 1 and 2
herein and confirmation from Pacific that it has received the letters detailed
in Paragraphs 1(c) and 2(c) herein, Yalley shall file the executed Stipulation
and Order for Dismissal.
5. The
parties shall bear their own costs, attorneys' fees and expenses incurred
in and
as a result of the Civil Action.
6. Yalley
and Winsonic hereby release and forever discharge each other from any and
all
claims for relief, losses, causes of action, costs, interest, expenses,
attorneys fees, liabilities, duties and obligations of any kind or nature
whatsoever, at law or in equity, whether known or unknown, fixed or contingent,
arising out of their dispute or any other cause whatsoever occurring prior
to
the date of the execution of this Agreement.
7. Yalley
and Winsonic acknowledge that this Agreement is a compromise settlement between
them, and is not an admission of liability as to any claim, and that this
Agreement is a means of avoiding further litigation.
8. Nothing
in this Agreement expresses or implies an intention on the part of Yalley
or
Winsonic to confer upon any person, any rights or remedies by reason of any
term, provision, condition, undertaking, warranty, representation or agreement
contained herein.
9. In
the event it is necessary for either Yalley or Winsonic to institute an action
to interpret or enforce this Agreement, or to preclude the purported violation
of this Agreement, the prevailing party in such action shall be entitled
to
reimbursement of reasonable costs, expenses and attorneys fees.
10. This
Agreement is made pursuant to and shall be governed by the laws of the State
of
Nevada.
11. This
Agreement contains the entire understanding between Yalley and Winsonic in
connection with the subject matter discussed herein. It is expressly
acknowledged and recognized by the parties that there are no other oral or
written agreements between the parties, and that this Agreement may be modified,
cancelled, supplemented or discharged only in a subsequent writing signed
by the
parties.
12. This
Agreement is a result of negotiations, and, as such, shall be deemed to have
been jointly prepared by the parties.
13. The
normal rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation
of this Agreement or of any amendments or exhibits to this
Agreement.
14. Yalley
and Winsonic each warrant and acknowledge that they have been fully advised
by
legal counsel concerning the Agreement and they are relying fully upon their
own
judgment and advice of such counsel.
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15. This
Agreement may be executed in counterparts and delivered by facsimile with
the
same force and effect as if all signatures were set forth in a single
instrument.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date
set
forth above.
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By: /s/
Xxxx
Xxxxxx
XXXX
XXXXXX
AS
REVIEWED BY:
XXXXXX
& SILVER, LTD.
By:/s/
Xxxx
Xxxxxxx
XXXX
X. XXXXX
Nevada
Bar No. 3127
XXXX
X. XXXXXXX
Nevada
Bar No. 9181
3960
Xxxxxx Xxxxxx Parkway, 0xx
Xxxxx
Xxx
Xxxxx,
XX 00000
Attorneys
for
Plaintiff
XXXX
XXXXXX
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WINSONIC
DIGITAL MEDIA GROUP, LTD.
By:
/s/ Xxxxxxx
Xxxxxxx
AS
REVIEWED BY:
XXXX
XXXXXXXX, LLP
By: /
s/ Xxxxxxx X.
Xxxxxxx
XXXXXXX
X.
XXXXXXX
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