AGREEMENT AND GENERAL RELEASE
Exhibit
10.5
AGREEMENT
AND GENERAL RELEASE
This
Agreement and General Release (“Agreement”) is entered
into by and between uVuMobile, Inc., a Delaware corporation
(“uVuMobile”) and Xxxx Xxxxx
(“Employee”) (uVuMobile and Employee are collectively referred
to as the “Parties”) and is effective as of the date
of execution by both parties (the “Effective
Date”).
RECITALS
WHEREAS,
Employee previously entered into an employment agreement with SmartVideo
Technologies, Inc. (“SVT”) (the “Prior
Agreement”); and
WHEREAS,
the Prior Agreement provided Employee with certain rights and
obligations with respect to his employment with SVT; and
WHEREAS,
Employee desires to terminate the Prior Agreement and to waive all rights
and
obligations under the Prior Agreement and otherwise against SVT, uVuMobile
and
related entities;
NOW,
THEREFORE, in consideration of the foregoing premises and the mutual
covenants set forth herein, it is agreed:
AGREEMENT
1. Consideration
provided by uVuMobile: In exchange for the promises and
Agreements of Employee hereunder, uVuMobile hereby agrees to provide Employee
with a gross severance payment of $50,000 (the “Severance Payment”), subject to
withholding of all applicable local, state and federal taxes and subject
to the
Company receiving financing in actual funds received and deposited ( the
“Financing Commitment). The Severance payment shall be payable in the following
installments: (a) $25,000 payable by the Close of Business on the day following
the Financing Commitment: (b) the balance payable in five equal monthly
installments of $5,000 with the first monthly installment being paid on the
15th day of
the
month following the Financial Commitment: (c) and upon receipt of a fully
executed version of this Agreement, the Company shall grant stock options
to
acquire 500,000 shares of uVuMobile’s common stock (each an “Option” and
collectively the “Options”) under such terms and conditions as provided for
under the Company’s stock option plan. The stock options shall be priced on the
date of the grant and shall vest quarterly over a 24 month period and be
immediately exercisable for 15 months following the grant notwithstanding
anything to the contrary in the Company’s Stock Incentive
Plan. Provided, however, that if the Company does not receive the
Financing commitment within three (3) months from the date of execution,
this
Agreement in its entirety shall be null and void.
2. Release
by Employee: In consideration of receipt by Employee of the Options and
the Severance Payment as provided in Paragraph 1 above, Employee agrees that
the
Prior Agreement is hereby terminated and shall no longer be of any force
or
effect. All rights and obligations owing to Employee under the Prior
Agreement are hereby fully and forever released and discharged by
Employee. In addition, but also subject to receipt of the Options and
the Severance Payment, Employee fully, finally and forever releases and
discharges uVuMobile, SVT, and each of their employees, agents, directors,
officers, insurers, attorneys, successors, predecessors and assigns from
any and all known claims, demands, actions, causes of action, rights,
obligations, liabilities, debts, suits, damages, attorneys' fees, costs,
expenses, and losses of every kind and nature whatsoever, whether in law
or in
equity, whether in contract, tort, or otherwise, including, but not limited
to,
consequential and incidental damages, whether now existing, previously existing,
or existing in the future, and including, but not limited to, any claim to
recover salary, benefit or other amounts pursuant to the Prior Agreement
and/or
pursuant to any benefit plan or program referenced in the Prior
Agreement.
3. Release
by Company: In consideration of the Novia’s forfeiture of certain of
her severance obligations and other good and valuable consideration given
herein, Company hereby releases, acquits, withdraws, retracts and forever
discharges any and all claims, manner of actions, causes of action (in law
or in
equity), suits, judgments, debts, liens, contracts, agreements, promises,
liabilities, demands, damages, losses, costs, expenses or disputes, known
or
unknown, fixed or contingent, directly or indirectly, personally or in a
representative capacity, against Novia by reason of any act, omission, matter,
cause or thing whatsoever, from the beginning of time up to and including
the
date of execution of this Agreement to the extent that such a release is
permitted as a matter of law. This general release includes, but is
not limited to, all claims, manner of actions, causes of action (in law or
in
equity), suits or requests for attorneys’ fees and/or costs under the Employee
Retirement Income Security Act of 1974; Title VII of the Civil Rights Act
of
1964 as amended; the Americans with Disabilities Act; the Rehabilitation
Act of
1973; the Family and Medical Leave Act; the anti-retaliation provisions of
the
Fair Labor Standards Act; the Equal Pay Act; the Pregnancy Discrimination
Act;
the Consolidated Omnibus Budget Reconciliation Act (“COBRA”); the Occupational
Safety and Health Act; the National Labor Relations Act; legal
malpractice, 42 U.S.C. §§ 1981 through 1988; any federal,
state or local law regarding retaliation for protected activity or interference
with protected rights; and any state or local law, including but not limited
to
the Georgia AIDS Confidentiality Act; Georgia’s Law Regarding Equal Pay,
O.C.G.A. § 34-5-1 etseq.; the Georgia Equal Employment for Persons
with Disabilities Code; the Georgia Constitution; and all claims
under Georgia public policy or common law including, but not limited to,
common
law claims of outrageous conduct, intentional or negligent infliction of
emotional distress, negligent hiring, breach of contract, breach of the covenant
of good faith and fair dealing, promissory estoppel, negligence, wrongful
termination of employment, interference with employment relationship, civil
rights, fraud and deceit and all other claims of any type or nature, including
all claims for damages, wages, compensation, vacation, reinstatement, medical
expenses, punitive damages, and claims for attorneys’ fees. The
Company and Novia intend that this release shall discharge all claims against
Novia to the full and maximum extent permitted by law. Company and
Novia further agree that to the extent that federal law prohibits the waiving
of
certain claims as a matter of law, this Agreement is not intended to waive
any
such claims.
4. Assignment: Employee
represents and warrants that Employee has not assigned or otherwise transferred
or subrogated any interest in any claim being released hereunder.
5. No
Admission of Liability: This Agreement is made as a
compromise of disputed claim or claims and does not constitute an admission
of
liability or other obligation on the part of any of the Parties.
6. Representation
By Counsel: The execution of this Agreement by each Party is
free and voluntary. The Parties each warrant that they have either
been represented by, or had an opportunity to consult with,
counsel. No promise or inducement to enter into this Agreement,
except as expressly stated herein, is made by or to any Party. This
Agreement contains the entire agreement between the Parties hereto and the
terms
hereof supersede all prior discussion.
7. Modifiability: This
Agreement may not be amended except by a writing signed by the Party against
whom enforcement of such amendment is sought.
8. Authorization: Each
Party has read this Agreement and understands the contents
hereof. Each person executing this Agreement on behalf of an entity
is empowered to do so and thereby binds such entity.
9. Severance: If
any provision of this Agreement is held to be illegal or invalid by a court
of
competent jurisdiction, such provisions shall be severed or deleted and neither
that provision, nor its severance and deletion, will affect the validity
of the
remaining provisions. Any illegal or invalid provision shall be
reconstrued and limited so as to be valid to the fullest extent permitted
by
applicable law and shall only be treated as illegal or invalid to the extent
it
is broader than so permitted.
10. Counterparts: This
Agreement may be executed in counterparts and when each Party has signed
and
delivered at least one counterpart, each counterpart will be deemed an original
and, when taken together with the other signed counterparts, will constitute
one
agreement which will be binding upon and effective as to all
Parties. Facsimile signatures are acceptable.
11. Specific
Performance; Attorney’s Fees: This Agreement may be
specifically enforced, and injunctive relief may be granted, without the
posting
of a bond, to prevent a breach of the Agreement since there is no adequate
remedy at law. The prevailing party in any proceeding brought to
enforce this agreement shall be entitled to an award of its reasonable costs
and
expenses, including, without limitation, attorneys’ fees. Nothing
contained herein shall prevent either party hereto from seeking to enforce
its
rights for a breach of this Agreement.
Executed
on the dates indicated below.
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UVUMOBILE™,
INC.
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XXXX
XXXXX
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By:
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/s/
Xxxxxxx X. Xxxxxxxx
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By:
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/s/
Xxxx Xxxxx
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Xxxxxxx
X. Xxxxxxxx
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Xxxx
Xxxxx
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Its:
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Interim
CEO, President and CFO
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Its:
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Senior
Vice President
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DATED:
November 1, 2007
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DATED:
November 2, 2007
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