RELEASE AND INDEMNIFICATION AGREEMENT
EXHIBIT
10.6
This
Release and Indemnification ("Agreement") is made to be effective this 15th day
of October, 2007 by Xxxxxxx
X. Xxxxxx ("Xxxx Xxxxxx"), Xxxxx X. Xxxxxx ("Xxxxx Xxxxxx"), Xxxxx Xxxxxx
("Xxxxx Xxxxxx"), and Accesskey
IP, Inc., a Nevada Corporation ("Accesskey" or the
"Company").
WHEREAS, Xxxx Xxxxxx was the
sole director of Accesskey when
it was known by its previous name, EWAN 1, Inc. ("EWAN");
WHEREAS,
Xxxxx Xxxxxx and Xxxxx
Xxxxxx were officers EWAN;
WHEREAS,
Xxxx Xxxxxx and Xxxxx
Xxxxxx resigned their positions
as officer and director of EWAN in July, 2006;
WHEREAS, Xxxxx Xxxxxx resigned
as an officer of EWAN on April 21, 2006;
WHEREAS,
a Nevada corporation can
provide indemnification to any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he is
or was a director,
officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or
agent of another
corporation, partnership, joint venture, trust or other enterprise
against expenses, including amounts paid in settlement and attorneys' fees actually and
reasonably incurred by him in connection with the defense or settlement of the
action or suit if he:
(a)
Is not
liable pursuant to NRS 78.138; or
(b)
Acted in
good faith and in a manner which he reasonably believed to be in or not opposed
to the best interests of
the corporation;
NOW THEREFORE, in consideration
for the recitals set forth above, plus other good and valuable consideration,
the receipt and sufficiency of
which is hereby acknowledged, the parties agree as follows.
1. Release
Accesskey
hereby releases and forever discharges Xxxx Xxxxxx, Xxxxx Xxxxxx and Xxxxx
Xxxxxx, of and from any and all
manner of actions and causes of action, suits, debts, dues, sums of money,
accounts, controversies,
agreements, promises, damages, judgments, executions, claims, and demands whatsoever, in law or in
equity, and
particularly from all claims and demands whatsoever, arising in or out of, or in connection with,
securities transactions, management decisions, director actions or
any other matter, which Accesskey
ever had, or now possesses, or which Accesskey plus its
successors and assigns, hereafter can, shall, or may have against Xxxx Xxxxxx,
Xxxxx Xxxxxx and/or Xxxxx Xxxxxx,
for, upon, or by reason of any matter, cause or thing whatever to the
extent that they would not be liable under pursuant to section 78.138 of the
Nevada Revised Statutes.
It is
expressly understood that Section 1542 of the California Civil Code provides as
follows:
General
release; extent. A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his settlement with
the debtor.
The provisions of Section 1542 of the
California Civil Code, as
well as the provisions of all comparable, equivalent and
similar statutes and principles
of common law of the United States and of any and all of the states of the
United States, if in any way applicable, are hereby knowingly and voluntarily waived
and relinquished and Accesskey
expressly includes in this
Release any unknown claims that the undersigned may have against Xxxx Xxxxxx,
Xxxxx Xxxxxx and/or Xxxxx Xxxxxx.
2. Indemnity
Accesskey shall indemnify and hold Xxxx
Xxxxxx, Xxxxx Xxxxxx and Xxxxx Xxxxxx (each an "Indemnitee") harmless from any and all
liability, cost, loss or damage which Indemnitees may suffer or incur as
a result of any claim, demand or judgment against Indemnitee arising out of a
claim by any third party which is
covered by § 78.7502 of the Nevada Revised Statutes.
Accesskey
shall indemnify to the fullest extent permitted by law if Indemnitee was or is
or becomes a party to or witness or other
participant in, or are
threatened to be made a party to or witness or other participant in, any
threatened, pending or completed action, suit, proceeding or alternative dispute
resolution mechanism, or any hearing, inquiry or investigation that Indemnitee in good faith believes might
lead to the institution of any such action, suit, proceeding or alternative dispute
resolution mechanism, whether civil, criminal, administrative, investigative or other (hereinafter a
"CLAIM") by reason of (or arising in part out of) any event or occurrence related to the
fact that Indemnitee is or was a
director, officer, employee, agent or fiduciary of Accesskey, or any
subsidiary of Accesskey, or is or was serving at the request of
Accesskey as a director, officer, employee, agent or fiduciary of another
corporation, partnership, joint venture, trust or other enterprise, or by reason of
any action or inaction on the part of Indemnitee while serving
in such capacity (hereinafter an
"INDEMNIFIABLE EVENT") against any and all expenses (including
attorneys' fees and all other costs, expenses and obligations incurred in
connection with investigating, defending, being a witness in or
participating in (including on appeal), or preparing to
defend, be a witness
in or participate in, any
such action, suit, proceeding, alternative dispute resolution mechanism,
hearing, inquiry or investigation), judgments, fines,
penalties and
amounts paid in settlement (if such settlement is approved in advance by Accesskey, which
approval shall not be
unreasonably withheld) of such Claim
and any federal,
state, local or
foreign taxes imposed on
Indemnitees as a result of the actual or deemed receipt of any
payments
under
this Agreement
(collectively, hereinafter "EXPENSES"), including all interest,
assessments and other charges paid or payable in connection with or in
respect of such Expenses. Such payment of Expenses shall be made by Accesskey as
soon as practicable but in any event no later than twenty days after written
demand by Indemnitees therefor
is presented to
Accesskey.
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3. Term
of Indemnity
The
indemnity under this Agreement shall commence on the date hereof and shall
continue in full force and effect until July 31, 2017.
4. Notice of Claims by
Indemnitees
Indemnitees
agree to notify Acccsskey in writing, within ten (10) days of any claim made
against lndemnitees in respect to obligations for which they are indemnified by
Accesskey against or for
which Accesskey is obligated to provide a defense hereunder,
5. Consideration
Xxxxx
Xxxxxx agrees to sell no more than one million (1,000,000) shares of
Accesskey IP Inc.'s
common shares per Calendar month for a period of 4
months following
the date of this agreement. For calculation of the time period, the
parties agree
that the date the 4-month period shall begin shall be October 15, 2007.
Further, in the event that the sale price for such shares reaches $.05 per share
or greater, Xxxxx Xxxxxx agrees not to sell more than
500,000 shares of Accesskey IP common stock per month during that 4 month
period. Accesskey shall, within 3 days after execution of this agreement,
instruct its transfer agent to
issue to Xxxxx Xxxxxx a certificate representing ten million (10,000,000)
unrestricted shares of Accesskey IP common stock, in replacement of the
certificate representing ten million (10,000,000) shares of Accesskey IP common
stock bearing a restrictive legend that was previously submitted by Xxxxx
Xxxxxx.
Xxxx
Xxxxxx agrees to transmit 12,500,000 shares of Accesskey IP
(formerly, Ewan 1, Inc.) common stock back to the Company immediately upon the
transfer agent's issuance to Xxxxx Xxxxxx of an unlegended certificate representing 10,000,000 shares of
Accesskey IP common
stock.
6. Miscellaneous
A. Further
Assurances
At any
time and from time
to time, after the date, hereto, each party will execute such additional
instruments and take such action as may be reasonably requested by the other
party to confirm or otherwise to carry out the
intent and purposes of this
Agreement.
B. Waiver
Any
failure on the part of any party hereto to comply with any of its obligations,
agreements, or conditions hereunder, may only be waived in writing by the party to whom
such compliance is owed.
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C. Headings
The
section and subsection headings in this Agreement are inserted for convenience
only and shall not affect in any way the meaning or interpretation of this
Agreement.
D. Governing Law
This
Agreement was negotiated
and is being contracted for in the United States, State of California, and shall
be governed by the laws of the State of California, notwithstanding any
conflict-of-law provision to the contrary.
E. Binding
Effect
This
Agreement shall be binding
upon the parties hereto and inure to the benefit of the parties, their respective heirs,
administrators, executors, successors and assigns.
F. Public
Statements
Neither
party shall make any press release, including oral statements to a member of the press or a public
relations company, or written statements, of a material nature, relating to the
other party or concerning the transactions covered by this agreement, without the
prior approval of the other party. Nevertheless, the Company may
make any and all statements which it deems necessary to comply
with federal and state securities
regulations, or to comply with the orders of any judicial or regulatory body.
G. Non-contravention
The Company agrees not to take
any steps to contest or frustrate the valid transfer of all shares covered under
this agreement.
H. Entire
Agreement
This
Agreement contains the entire agreement between the parties hereto and
supersedes any and all prior
agreements, arrangements or understandings between the parties relating
to the subject matter hereof. No oral understandings, statements, promises or
inducements contrary to the terms of this Agreement exist. No representations,
warranties, covenants or conditions, express or implied, other than as set forth
herein, have been made by any party.
I. Severability
If any
part of this Agreement is deemed unenforceable, the balance of this Agreement
shall remain in full force and effect.
J. Counterparts
This Agreement may be executed
simultaneously in two or more counterparts each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument and may be delivered in original or by facsimile or similar
instantaneous electronic transmission device pursuant to
which the signature of or on behalf of such part can be seen, and in such case
the facsimile
execution and delivery shall be considered valid, binding and effective
for all purposes. At
the request of any party hereto, all parties agree to deliver an original of
this Agreement as well
as any facsimile, telecopy or other reproduction hereof subsequent to the
effective
date.
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IN WITNESS WHEREOF
the undersigned have executed this Agreement to be effective as
of the date set forth
above.
By: /s/ Xxxxxxx X.
Xxxxxx
Xxxxxxx
X. Xxxxxx, individually
By: /s/ Xxxxx
Xxxxxx
Xxxxx
Xxxxxx, indivtdually
By:
/s/ Xxxxx
X.
Xxxxxx
Xxxxx
X. Xxxxxx, individually
By:
/s/ Xxxxxx
Xxxxxxx
Name:
Xxxxxx Xxxxxxx, CEO
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