AGREEMENT AND GENERAL RELEASE
Exhibit
10.4
AGREEMENT
AND GENERAL RELEASE
This
Agreement and General Release (“Agreement”) is entered
into by and between uVuMobile, Inc., a Delaware corporation
(“uVuMobile”) and Xxxxxxx Xxxxxxxx
(“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 an equity or convertible debt valued at $42,500 in the next equity
transaction valued at greater than $1 million dollars and upon receipt of
a
fully executed version of this agreement, the Company shall grant stock options
to acquire 1,000,000 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 months
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 the consideration 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, 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 Xxxxxxxx’x 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 Xxxxxxxx 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 Xxxxxxxx intend that this
release shall discharge all claims against Xxxxxxxx to the full and maximum
extent permitted by law. Company and Xxxxxxxx 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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Xxxxxxx
X. Xxxxxxxx
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By:
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/s/
Xxxxx Xxxxxx
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By:
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/s/
Xxxxxxx Xxxxxxxx
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Xxxxx
Xxxxxx
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Xxxxxxx
Xxxxxxxx
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Its:
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Chairman
of the Board
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Its:
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Interim
CEO, President and CFO
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DATED:
November 1, 2007
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DATED:
November 2, 2007
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