Contract
Exhibit
10.8
CONFIDENTIAL
THIS
SETTLEMENT AGREEMENT (the "Agreement")
is dated
as
of this 2nd
day of
June and effective as of the 31st
day of
March, 2008 (the "Effective
Date")
by and
among CX2 TECHNOLOGIES, INC., a Nevada corporation (the "Company"),
GEOCOMMAND, INC., a Florida corporation ("GEOCommand"),
XXXXXXX XXXX, an individual, XXXXXX XXXXXXXXXXX, an individual, and HALODY
CONSULTING, LLC, a Florida limited liability company ("Halody"),
and
XXXXX XXXXXXXXX, an individual ("Xxxxxxxxx").
RECITALS:
A.
Halody,
through its owner Xxxxxxxxx, provided funding to the Company during a two-year
period commencing in April 2006.
B.
During
the funding period Halody received convertible debentures from the Company
(the
"Debentures"),
which
have subsequently been partially converted into a total of 5,280,000 shares
of
the Company's common stock (the “Debenture
Shares”).
X.
Xxxxxxxxx
personally owns 750,000 shares of the Company's common stock (the "Xxxxxxxxx
Shares"),
D.
GEOCommand,
in its capacity as a consultant providing services to the Company, had
substantial contact with Halody and Xxxxxxxxx, and wishes to enter into this
Agreement to settle any claims among GEOCommand, Halody and
Xxxxxxxxx.
E.
Halody
agrees, subject to the terms and conditions of this Agreement, to contribute
to
capital the Debentures on the company’s books and records in exchange for the
Company and GEOCommand making the representations, warranties and covenants
contained herein.
AGREEMENT:
ARTICLE
I
FINANCIAL
TERMS; RESIGNATION
1.2.
Cancellation
of Debentures. Halody
shall return the original remaining signed Debentures to the Company for
immediate cancellation. The parties agree that neither party shall have any
further obligations under the Debentures subsequent to the Effective Date,
and
Halody agrees to contribute to capital the $440,568.02 due under the Debentures.
1.3.
Return
of Shares.
On or
before the Closing, as defined below, Xxxxxxxxx shall deliver to the Company
all
Company stock certificates in his possession that are not registered in his
name
as set forth in Schedule 1.3.
1.4.
Return
of Records. Halody
and Xxxxxxxxx agree to return to the Company immediately before execution
of
this Agreement all corporate records, documents, contracts, due diligence
materials, offer letters, agreements, and drafts of any of the foresaid items,
including but not limited to various securities filings which are in draft
form.
1.5.
Closing.
The
closing of the transactions described in this Article I contemplated herein
(the
"Closing")
shall
occur at the Company's offices, 0000 Xxxxxxx Xxxx, Xxxxx 000X, Xxxx Xxxxx,
Xxxxxxx 00000 at the earliest practicable date but in no event later than
June
2, 2008.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES
With
respect to Sections 2.1, 2.2, 2.3, 2.5 and 2.6 below, Halody and Xxxxxxxxx
hereby jointly and severally represent and warrant to the Company and GEOCommand
as of the date of this Agreement that, and, solely with respect to Section
2.4
below, the Company and Xxxxxxx Xxxx and GEOCommand and Xxxxxx Xxxxxxxxxxx
hereby
jointly and severally represent and warrant to Halody and Xxxxxxxxx as of
the
date of this Agreement that:
2.1.
Debenture,
Xxxxxxxxx Shares Free from Claims.
The
registered holder of each of the Debenture Shares and Xxxxxxxxx Shares is
the
beneficial owner of each such Share, and all such Shares are duly and validly
issued and are free and clear from any lien, claim, pledge, charge or
encumbrance. Other than this Agreement, there are no outstanding subscriptions,
options, rights, warrants, debentures, instruments, convertible securities
or
other agreements or commitments now obligating any registered holder of any
of
the Debenture Shares and Xxxxxxxxx Shares, or if hereafter exercised would
require any such registered holder, to transfer or surrender any of the
Debenture Shares or Xxxxxxxxx Shares.
2.2.
Agreement
Binding. Neither
the execution, delivery, nor performance of this Agreement by Halody and
Xxxxxxxxx will, with or without the giving of notice or the passage of time,
or
both, conflict with or result in a default, right to accelerate or loss of
rights under, or result in the creation of, any lien, charge or encumbrance
or
any franchise, mortgage, deed of trust, lease, license, agreement,
understanding, law, rule or regulation, or any order, judgment or decree
to
which Halody or Xxxxxxxxx is a party or by which Halody or Xxxxxxxxx may
be
bound or affected.
2.3.
Full
Settlement. Halody
and Xxxxxxxxx agree that upon the Closing of this Agreement, no further
compensation is due or owing to Halody or Xxxxxxxxx from the Company or
GEOCommand or any of their respective officers, directors, accountants, legal
advisors, or any other agent, whether in the form of cash or non-cash
compensation, with respect to any relationship between the Company or GEOCommand
and Halody or Xxxxxxxxx.
2.4.
Full
Settlement. The
Company and GEOCommand agree that upon the Closing of this Agreement, no
further
compensation is due or owing to the Company or GEOCommand from Halody or
Xxxxxxxxx, or any of their respective officers, directors, accountants, legal
advisors, or any other agent, whether in the form of cash or non-cash
compensation, with respect to any relationship between the Company or GEOCommand
and Halody or Xxxxxxxxx.
2.5.
Authority.
The
manager and member(s), as applicable, of Halody have duly authorized the
execution of this Agreement and the consummation of the transactions
contemplated herein. Halody and Xxxxxxxxx each have the full power and authority
to execute, deliver and perform this Agreement, and this Agreement is a legal,
valid and binding obligation of both Halody and Xxxxxxxxx and is enforceable
in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, and similar statutes affecting creditors’ rights
generally and judicial limits on equitable remedies.
2.6.
General. The
recitals and agreements in this Agreement are and will be true and accurate,
and
have been and will be complied with and performed by both Halody and Xxxxxxxxx,
in all material respects, and on or before the Closing Date all related
documents necessary or advisable to complete the settlement transaction will
be
delivered to the Company.
ARTICLE
III
COVENANTS
3.1.
Halody
and Xxxxxxxxx Release. Halody,
Xxxxxxxxx, and their successors, assigns, affiliates, subsidiaries, divisions,
present and former managers, members, officers, employees, heirs, executors,
successors, predecessors, assigns, present and former partners, principals,
employees, agents, attorneys, and all other persons acting on behalf of the
aforementioned parties (the "Xxxxxxxxx
Parties")
hereby
release and forever discharge the Company, GEOCommand and their successors,
assigns, affiliates, subsidiaries, divisions, present and former officers,
directors, employees, shareholders, agents, attorneys, and all other persons
acting on behalf of the aforementioned parties (the "Company
Parties")
from
any and all claims, debts, demands, suits, actions and causes of action of
whatsoever kind and nature, whether in law or in equity, known or unknown
that
Halody, Xxxxxxxxx, or the Xxxxxxxxx Parties may now have, at any time prior
hereto ever had, or hereafter may have or could assert against the Company,
GEOCommand or the Company Parties for, upon or by reason of any matter, cause
or
thing whatsoever arising out of, set forth in, or connected with Halody and
Xxxxxxxxx, and the Debentures, the Debentures Shares and the Xxxxxxxxx Shares.
Halody and Xxxxxxxxx acknowledge and agree that they do not claim or have
any
interest in any patents, copyrights or any other intellectual property rights
relating to the Company's products, marketing materials, documentation or
other
assets, and that any such rights have vested in the Company as works for
hire to
the extent permitted by applicable law or have been assigned to the Company.
The
Company, GEOCommand and the Company Parties hereby release and forever discharge
Halody, Xxxxxxxxx and the Xxxxxxxxx Parties from any and all claims, debts,
demands, suits, actions and causes of action of whatsoever kind and nature,
whether in law or in equity, known or unknown that the Company, or the Companies
Parties may now have, at any time prior hereto ever had, or hereafter may
have
or could assert against the Xxxxxxxxx Parties for, upon or by reason of any
matter, cause or thing whatsoever arising out of, set forth in, or connected
with the Company. The Company Parties acknowledge and agree that they do
not
claim or have any interest in any shares owned by Halody or Xxxxxxxxx.
3.2.
No
Release of Obligations Contained in this Agreement. The
Company, GEOCommand, Halody and Xxxxxxxxx hereby each acknowledge and agree
that
nothing contained in this Agreement shall release or discharge any of them
from
rights, duties and obligations contained in or assumed under this
Agreement.
3.3.
Covenant
Not to Xxx. Halody,
Xxxxxxxxx and the Xxxxxxxxx Parties hereby agree and covenant not to xxx
the
Company, GEOCommand or the Company Parties for any and all claims,
counterclaims, crossclaims, set-offs, debts, actions for contribution or
indemnity, demands or any action whatsoever, in law or in equity, which Halody
or Xxxxxxxxx may now have, at any time prior hereto ever had or hereafter
may
have or could assert against the Company, GEOCommand or the Company Parties
for,
upon or by reason of any matter, cause or thing whatsoever arising out of,
set
forth in or connected with Halody and Xxxxxxxxx or any dealings between the
Company, GEOCommand or the Company Parties and Halody, Xxxxxxxxx or the
Xxxxxxxxx Parties.
The
Company, GEOCommand and the Company Parties hereby agree and covenant not
to xxx
Halody, Xxxxxxxxx or the Xxxxxxxxx Parties for any and all claims,
counterclaims, crossclaims, set-offs, debts, actions for contribution or
indemnity, demands or any action whatsoever, in law or in equity, which the
Companies Parties may now have, at any time prior hereto ever had or hereafter
may have or could assert against Halody, Xxxxxxxxx or the Xxxxxxxxx Parties
for,
upon or by reason of any matter, cause or thing whatsoever arising out of,
set
forth in or connected with the Company or any dealings between Halody, Xxxxxxxxx
or the Xxxxxxxxx Parties and the Company, GEOCommand or the Company
Parties.
3.4.
Confidentiality;
Non-Solicitation. Halody
and Xxxxxxxxx each acknowledge and agree that, as partial consideration for
this
Agreement and the settlement transaction contemplated herein, they be subject
to
the following covenants following execution of this Agreement:
(a)
Confidential
Information. Halody
and Xxxxxxxxx acknowledge that they have had access to trade secrets and
confidential business information of the Company and that any such trade
secret
or confidential information, regardless of whether Halody or Xxxxxxxxx alone
or
with others developed any such trade secret or confidential information,
shall
be and shall remain the property of the Company. After the Effective Date,
Halody and Xxxxxxxxx shall not, either voluntarily or involuntarily, on either
their own account, as a member of a firm, or on behalf of another employer
or
otherwise, directly or indirectly use or reveal to any person, partnership,
corporation or association any trade secret or confidential information of
the
Company, its parents, subsidiaries, or affiliates. Such trade secrets shall
include, but shall not be limited to, business plans, marketing plans or
programs, financial information, forecasts, compensation arrangements, contracts
(whether leases, financing arrangements, or other contracts) customer lists,
and
business opportunities. The term "trade secrets" shall not include information
generally available to the public or a governmental agency except such term
"trade secrets" shall include information provided to the Securities and
Exchange Commission or other governmental agency on a confidential basis.
Halody
and Xxxxxxxxx will not make available to any person, partnership, limited
liability company, corporation or association, or retain after termination
of
consulting services, any Company policy manuals, contracts or other written
materials.
(b)
Non-Disparagement.
So long
as either Halody or Xxxxxxxxx own any equity interest in the Company, and
for a
period of twelve (12) months following the date on which Halody and Xxxxxxxxx
cease to own any equity interest in the Company, Halody, Xxxxxxxxx and their
affiliates (including Xxxxxxxxx'x representatives, agents, attorneys,
dependents, spouse, administrators, executors, heirs, assigns, predecessors
and
successors-in-interest and including Halody's officers, managers, members,
employees, representatives, agents, attorneys, subsidiaries, parents, divisions,
predecessors and successors-in-interest) shall not provide oral or written
information or disparage or in any manner cause harmful remarks or comments
to
be disseminated to any third parties regarding the business, aptitude, skills,
practices, procedures, operations, methods, or any other subject which may
have
a detrimental impact on the future business prospects or extant business
relationships of the Company, GEOCommand, or any officers or directors of
the
Company or GEOCommand, except as required by law if called as a witness in
any
court proceedings.
For
a
period of seven years from the date of this Agreement, the Company, GEOCommand,
Xxxxxxx Xxxx and Xxxxxx Xxxxxxxxxxx and their affiliates, including any
representatives, agents, attorneys, dependents, spouses, administrators,
executors, heirs, assigns, predecessors and successors-in-interest and including
any and all officers, directors, managers, members, employees, representatives,
agents, attorneys, subsidiaries, parents, divisions, predecessors and
successors-in-interest, shall not provide oral or written information or
disparage or in any manner cause harmful remarks or comments to be disseminated
to any third parties regarding the business, aptitude, skills, practices,
procedures, operations, methods, or any other subject which may have a
detrimental impact on the future business prospects or extant business
relationships of Halody and Xxxxxxxxx, or any officers or directors of Halody
or
Xxxxxxxxx, except as required by law.
(c)
Non-Solicitation. Halody
and Xxxxxxxxx will not, during the one (1) year period following the Effective
Date for any reason, directly or indirectly solicit for employment, or employ
any person who, at the time of such solicitation or employment, is employed
by
the Company, GEOCommand or their affiliates or was employed by the Company,
GEOCommand or their affiliates during the twelve (12) month period prior
to the
solicitation or employment or induce or attempt to induce any person to
terminate his or her employment with the Company, GEOCommand or their
affiliates.
(d)
Injunctive
Relief. Halody
and Xxxxxxxxx acknowledge that the restrictions contained in this
Section 3.4 are a reasonable and necessary protection of the immediate
interests of the Company and GEOCommand and that any violation of these
restrictions would cause substantial injury to the Company and GEOCommand.
In
the event of a breach or threatened breach by Halody or Xxxxxxxxx of these
restrictions, each of the Company and GEOCommand shall be entitled to apply
to
any court of competent jurisdiction for an injunction restraining Halody
and/or
Xxxxxxxxx, as appropriate, from such breach or threatened breach; provided,
however,
that the
right to apply for an injunction shall not be construed as prohibiting the
Company or GEOCommand from pursuing any other available remedies for such
breach
or threatened breach.
The
Company and GEOCommand acknowledge that the restrictions contained in this
Section 3.4 are a reasonable and necessary protection of the immediate interests
of Halody and Xxxxxxxxx and that any violation of these restrictions would
cause
substantial injury to Halody and Xxxxxxxxx. In the event of a breach or
threatened breach by the Company and GEOCommand of these restrictions, each
of
Halody and Xxxxxxxxx shall be entitled to apply to any court of competent
jurisdiction for an injunction restraining the Company and GEOCommand, as
appropriate, from such breach or threatened breach; provided,
however,
that the
right to apply for an injunction shall not be construed as prohibiting Halody
and Xxxxxxxxx from pursuing any other available remedies for such breach
or
threatened breach.
3.5.
Release
Not Applicable to Future Services. Notwithstanding
any language to the contrary contained herein, in the event that the parties
engage in future contracts for services, any and all claims, debts, demands,
suits, actions, and courses of action arising from such services, occurring
after the execution date shall not be released and discharged by Sections
3.1 or
3.2 of this Agreement.
ARTICLE
IV
MISCELLANEOUS
4.1.
Confidentiality.
Halody
and Xxxxxxxxx as well as the Company, GEOCommand, its officers and directors
will not discuss or disclose this Agreement or any of its terms with or to
any
unaffiliated person or entity not signing this Agreement, except as required
by
law, and will not voluntarily cooperate or aid any claimant adverse to the
Company or GEOCommand, and to Halody and Xxxxxxxxx respectively. Halody and
Xxxxxxxxx may disclose the terms of this agreement only with their legal
and
financial advisors.
4.2
Effectiveness.
Halody
and Xxxxxxxxx acknowledge that they have freely, knowingly and voluntarily
entered into this Agreement. Notwithstanding any provision in the Debentures
to
the contrary, this Agreement sets forth in full all remaining terms of any
obligation between the parties and the terms of the Debentures shall be rendered
null and void as of the execution of this Agreement.
4.3.
Separate
Counsel. The
parties stipulate and agree that, in entering into this Agreement, they have
relied upon the advice and representation of counsel and other advisors selected
by them, the Company and GEOCommand having urged Halody and Xxxxxxxxx to
rely on
separate counsel chosen by them. Halody and Xxxxxxxxx particularly stipulate
and
agree that they were afforded time within which to consider the terms of
this
Agreement, with their legal counsel if they so chose, and that they and their
counsel and advisors have not received and are not relying on any
representations or warranty from any person or entity retained or employed
by
the Company or GEOCommand in connection with Halody and Xxxxxxxxx'x entry
into
this Agreement.
4.4.
Waiver
of Breach or Default. No
waiver
of any breach or default hereunder shall be considered valid unless in writing
and signed by the party giving such waiver, and no such waiver shall be deemed
a
waiver of any subsequent breach or default of the same or similar
nature.
4.5.
Successors
and Assigns. This
Agreement shall be binding upon and inure to the benefit of each party hereto
and its successors and assigns.
4.6.
Paragraph
Headings. The
paragraph headings contained herein are for the purposes of convenience only
and
are not intended to define or limit the contents of said
paragraphs.
4.7.
Counterparts.
This
Agreement may be executed in one or more counterparts, all of which taken
together shall be deemed one original.
4.8.
Applicable
Law. This
Agreement and all amendments thereof shall be governed by and construed in
accordance with the laws of the State of Florida applicable to contracts
made
and to be performed therein and the parties herein are subject to the personal
jurisdiction of the courts in and for the State of Florida, with venue to
lie in
Palm Beach County.
4.9.
Severability.
Wherever
there is any conflict between any provisions of this Agreement and any statute,
law, regulation or judicial precedent, the latter shall prevail, but in such
event the provisions of this Agreement thus affected shall be curtailed and
limited only to the extent necessary to bring it within the requirement of
the
law. In the event that any part, section, paragraph or clause of this Agreement
shall be held by a court of proper jurisdiction to be invalid or unenforceable,
the entire Agreement shall not fail on account thereof, but the balance of
the
Agreement shall continue in full force and effect unless such construction
would
clearly be contrary to the intention of the parties or would result in
unconscionable injustice.
4.10.
Litigation.
In the
event of any litigation between the parties arising out of this Agreement,
the
prevailing party shall be entitled to recover its court costs and reasonable
attorneys' fees.
4.11.
Entire
Agreement and Modification. This
Agreement represents the entire agreement by, between and among any of the
parties and may be modified only by a duly authorized writing, executed by
the
parties or their respective heirs, successors or assigns.
[Signature
Page Follows]
| Company: | ||
| CX2 TECHNOLOGIES, INC., a Nevada corporation | ||
| |
|
|
| By: | /s/ Xxxxxxx Xxxx | |
|
Xxxxxxx Xxxx, CEO |
||
| Date: 6/2/08 | ||
| GEOCommand: | ||
| GEOCOMMAND, INC., a Florida corporation | ||
| |
|
|
| By: | /s/ Xxxxxx Xxxxxxxxxxx | |
|
Xxxxxx Xxxxxxxxxxx, |
||
| Date: 6/2/08 | ||
| Rand: | ||
| |
|
|
| /s/ Xxxxxxx Xxxx | ||
|
Xxxxxxx Xxxx |
||
| Date: 6/2/08 | ||
| Xxxxxxxxxxx: | ||
| |
|
|
| /s/ Xxxxxx Xxxxxxxxxxx | ||
|
Xxxxxx Xxxxxxxxxxx |
||
| Date: 6/2/08 | ||
| Halody: | ||
| HALODY CONSULTING, LLC, a Florida limited liability company | ||
| |
|
|
| By: | /s/ Xxxxx Xxxxxxxxx | |
|
Xxxxx Xxxxxxxxx, |
||
| Date: 6/2/08 | ||
| Xxxxxxxxx: | ||
| |
|
|
| /s/ Xxxxx Xxxxxxxxx | ||
|
Xxxxx Xxxxxxxxx |
||
| Date: 6/2/08 | ||
