MUTUAL SETTLEMENT AGREEMENT
AND RELEASE OF CLAIMS
This Mutual Settlement Agreement and Release of Claims, dated April 26,
1999 ("Agreement"), is made and entered into by and between InnovaCom, Inc., a
Nevada corporation (hereinafter referred to as "InnovaCom"), Xxxx Xxx, an
individual (hereinafter referred to as "Fry"), and NATV Marketing, a Nevada
corporation (hereinafter referred to as "NATV").
RECITALS
WHEREAS, as a result of Fry's contact and assignment, on September 12,
1997, InnovaCom entered into a joint venture with Beijing CRI Development
Company, a legal entity under Chinese law ("CRI") for the purpose of
establishing a trade pavilion ("Joint Venture Agreement"), a copy is hereto
attached as "Exhibit A";
WHEREAS, as part of the Joint Venture Agreement, on July 11, 1997,
InnovaCom entered into a Ten (10) year Service Agreement with NATV providing for
an annual salary of up to $60,000.00 and the opportunity to receive up to fifty
percent (50%) of the InnovaCom's interest in the Joint Venture (the "Service
Agreement"), a copy is hereto attached as "Exhibit B";
WHEREAS, as part of the Joint Venture Agreement, among other items,
InnovaCom was to issue One Hundred Thousand (100,000) shares of InnovaCom's
common stock to Fry (the "Shares");
WHEREAS, InnovaCom has not delivered the Shares to Fry;
WHEREAS, due to its financial condition and change in business
direction, InnovaCom no longer wishes to pursue the Joint Venture Agreement; and
WHEREAS, the parties have agreed to enter this Agreement to terminate
the Joint Venture Agreement, Service Agreement and mutually release each other
from all obligations under the Service Agreement and Joint Venture Agreement.
NOW, THEREFORE, for and in consideration of the promises and of
the mutual representations, warranties, covenants, and agreements set forth in
this Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
l. Release from Joint Venture Agreement. NATV will (i) terminate or
cause the termination of the Joint Venture Agreement between CRI and InnovaCom
and (ii) have CRI and InnovaCom release each other from any and all liabilities,
damages, and obligations under the Joint Venture Agreement by executing a
general release in substantially the form attached hereto
as "Exhibit C."
2. Termination of the Service Agreement. Upon execution of this
Agreement, InnovaCom and NATV mutually agree to terminate the Service Agreement.
3. Title to the Shares. Upon execution of this Agreement, Fry shall
fully release and relinquish any and all rights, claims, and action as to the
Shares and InnovaCom shall cause the Shares to be canceled.
4. Obligations by InnovaCom. Upon the execution of this Agreement,
InnovaCom shall(i) pay NATV $43,000, which represents the difference between
$53,000 minus the$10,000 already received by NATV, in cash for cancellation of
future services and (ii) issue to Fry 200,000 shares of InnovaCom's common stock
("Service Shares") pursuant to a registration statement on Form S-8 in manner
described below. InnovaCom shall use its best effort to issue the Service Shares
pursuant to a registration statement on Form S-8. The issuance of the Service
Shares on Form S-8 shall be in exchange for Fry's release of compensation for
past bona fide services and not for capital raising purposes. Upon issuance of
the Service Shares, Fry shall execute a release to InnovaCom in satisfaction of
this Section 4. Failure by InnovaCom to issue the Service Shares on Form S-8 on
or before May 17, 1999, shall subject InnovaCom to a liquidated damage payment
of $5,000 per month to NATV, subject to pro ration for a period of less than one
month.
5. Obligations by NATV. NATV agrees to provide InnovaCom with its
Federal Employer Identification number for the purpose of preparing the 1099 or
satisfactory proof that NATV is exempt under the Internal Revenue Code so that
InnovaCom is excused from filing a 1099 for NATV. NATV further agrees to return
the rosewood desk ("Desk") in its possession that was purchase by InnovaCom or
its subsidiary by April 30, 1999. NATV will arrange for shipment of the Desk and
submit the quote to InnovaCom. On approval of InnovaCom's approval, NATV will
ship the Desk freight collect.
6. Full Mutual Release of All Claims. Upon the execution of this
Agreement, each party, on behalf of themselves and their heirs, dependents,
executors, administrators, agents, officers, directors, stockholders, employees,
consultants, representatives, attorneys, parent, subsidiary organization,
affiliate, partners, assigns, predecessors, and successors hereby fully and
irrevocably release and discharge each other, in both a corporate and personal
capacity, and their heirs, dependents, executors, administrators, agents,
officers, directors, stockholders, employees, consultants, representatives,
attorneys, successors, and assigns, from any and all claims, demands, acts,
breaches, omissions, duties, guarantees, obligations, debts, dues, accounts,
covenants, contracts, controversies, agreements, promises, torts, judgments,
executions, liabilities, damages, injunctions, assignments, suits, or causes of
action of every kind and nature, however or wherever arising, whether known or
unknown, foreseen or unforeseen, suspected or unsuspected, direct or indirect,
contingent or actual, liquidated or unliquidated, matured or unmatured, which
may now exist or later be discovered, arising from, related to, or connected in
any manner with the Service Agreement and/or agreements entered into by the
parties resulting from the Joint Venture Agreement, or arising from any other
facts, acts, occurrences, or
transactions whatever, from the beginning of time until the execution of this
Agreement, it being the express intention of the parties that this release be as
broad as permitted by law. This release shall not apply to or detract from the
obligations of the parties arising under the terms of this Agreement.
7. Release of Unknown Claims. Each of the parties agrees and
acknowledges that the above releases are full general releases of all claims,
and that they apply to claims that they do not know or suspect to exist in their
favor at the time of execution of these releases. Each of the parties hereby
expressly waives ss.1542 of the California Civil Code, and any other rule or
statute of similar purport, regarding unknown claims. Each of the parties hereby
certifies that he has read ss.1542 of the California Civil Code, which provides
as follows:
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 parties understand and acknowledge that the significance and consequence of
this waiver of California Civil Code ss.1542 is that even if a party should
eventually suffer additional damages as a result of an unknown claim, he or it
will not be able to make any claim for those damages. Furthermore, the parties
each acknowledge that they intend these consequences as to claims for damages
that may exist as of the date of these releases but which they each do not know
exist, and which, if known, would materially affect their decision to execute
these releases, regardless of whether their lack of knowledge is the result of
ignorance, oversight, error, negligence, or any other cause.
8. Confidentiality. The parties agree that they will keep the facts,
terms and amounts of this Agreement completely confidential provided that any
party hereto may make such disclosures as are required by law and as are
necessary for legitimate law enforcement or compliance purposes.
9. Covenant Against Suit and Non-Disparagement. Each of the parties
agrees not to bring, foment, aid, solicit, encourage, incite, or cooperate with
any claim, suit, administrative proceeding, or other adverse action, including
but not limited to ones based in whole or in part on any of the claims, acts,
torts, omissions, or causes of action released under this Agreement, by any
person, group, or entity, against either of the parties hereunder, unless
legally compelled to do so. In addition, each of the parties agrees not to
disparage, criticize, or impugn the other party hereunder, or to comment
publicly or privately or divulge information of any kind regarding the terms,
content, or subject matter of this Agreement. To the extent authorized by law,
the terms and subject matter of this Agreement shall remain strictly
confidential to the parties hereto. The covenants contained herein shall not
apply to or detract from the enforcement of the obligations arising under this
Agreement.
10. No Admission. This Agreement is entered into for the sole purpose of
resolving the matters described in it and nothing in this Agreement shall be
construed as an admission or description of any preexisting fact, obligation,
liability, right, or other matter for any purpose other than the construction
and enforcement of this Agreement.
11. Conditions of Execution. The parties acknowledge, agree, and warrant
that their execution of this Agreement is free and voluntary. The parties
acknowledge and represent that they have had ample time to consider this
Agreement, have read it in its entirety and fully understand its meaning, and
are voluntarily entering into it.
12. Legal Representation. The parties acknowledge and represent that
they have had the opportunity to and are hereby advised to consult with their
own lawyer before executing this Agreement.
13. No Other Representations. Except as otherwise provided herein, the
parties represent that neither they nor their representatives have given any
legal, factual, or other representations or opinions relating to this Agreement
other than those expressly contained in it.
14. Further Acts. The parties shall promptly take such further acts and
execute such other documents as shall be necessary to carry out the manifest
intent of this Agreement, including, without limitation, the convening of a
Board meeting or meetings, and the execution of corporate resolutions. Without
limiting the generality of the foregoing, in the event that any court,
administrative agency, county recorder, secretary of state, or other
governmental agency may require any additional or different documents or actions
in order to effect the purposes contemplated by this Agreement, the parties
shall execute the necessary documents and take the necessary steps to comply
with those requirements.
15. Integration. This Agreement constitutes the entire agreement among
the parties concerning its subject matter and it supersedes all prior or
contemporaneous contracts, agreements, understandings, negotiations, and
discussions, whether oral or written, concerning its subject matter.
16. No Oral Modification. No amendment, supplement, modification,
waiver, or termination of this Agreement shall be binding unless it is contained
in a writing signed by the party against whom it is sought to be enforced.
17. Expenses of Matters Settled. Each of the parties shall bear their
own costs of attorneys' fees and other expenses related to the matters being
settled, and no party shall make any payment or provide any consideration other
than what may be described in this Agreement. InnovaCom shall be responsible for
the costs of attorneys' fees and other expenses related to the drafting of this
Agreement.
18. Governing Law. This Agreement is entered into, and shall be
construed and interpreted in accordance with, the laws of the State of
California.
19. Venue and Jurisdiction. The parties agree that any proceeding,
including any arbitration, brought in connection with this Agreement, may be
brought and heard, and may only be brought and heard, in the County of Santa
Clara, California, and the parties hereby submit themselves to the personal
jurisdiction of any tribunal in that county before which, under this Agreement,
such action or proceeding may be brought.
20. Authority. The parties represent and warrant that they, through the
signatory indicated below, are duly authorized to enter into this Agreement and
to fulfill its terms, and that none of the rights, claims, or obligations being
released under this Agreement have been conveyed, assigned, or otherwise
transferred.
21. Successors and Assigns. This Agreement shall be binding on and inure
to the benefit of the heirs, executors, administrators, successors, and assigns
of the respective parties.
22. Expenses of Enforcement. If either party breaches any obligations
under this Agreement, the party affected by the breach shall be entitled to
receive from the breaching party his or its reasonable expenses, attorneys'
fees, and costs incurred in any action taken, with or without arbitration or
litigation, to enforce the terms of this Agreement, or to remedy or compensate
for such a breach.
23. Binding Arbitration. In the event of a dispute regarding the terms
or construction of this Agreement, the parties shall submit to binding
arbitration. If arbitration is required, each party shall select an arbitrator
of his or its choice, and the two arbitrators shall then agree upon the
selection of a third arbitrator. If the two arbitrators fail to agree on the
third arbitrator within fifteen (15) days after the second of them has been
initially selected by the parties, then the third arbitrator shall be appointed
by the presiding judge of the Santa Xxxxx County Superior Court. The arbitration
shall be conducted in accordance with the commercial rules and procedures of the
American Arbitration Association then in effect. The decision of any two of the
three arbitrators shall be final, conclusive, and binding on the parties, and
shall be issued within thirty (30) days from the date the arbitrators finally
hear and adjudicate such dispute. The parties shall share equally in any initial
fees of the arbitration. However, the prevailing party shall be reimbursed for
all of his or its fees expended and costs incurred by the non-prevailing party,
as determined by the arbitrators.
24. Notices. All notices to be given by either party to the other shall
be in writing and may be transmitted by personal delivery, facsimile
transmission, overnight courier or mail, registered or certified, postage
prepaid with return receipt requested; provided, however, that notices of change
of address or telex or facsimile number shall be effective only upon actual
receipt by the other party. Notices shall be delivered at the following address,
unless changed as provided for herein:
InnovaCom , Inc.
c/o Xxxxxxx Xxxxxxx
0000 Xxxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Xxxx Xxx
0000 X. Xxxxxxx Xxxxxx, #000
Xxx Xxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
NATV Marketing
c/o Xxxx Xxx
0000 X. Xxxxxxx Xxxxxx, #000
Xxx Xxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
25. Severability. Should any provision of this Agreement be declared or
be determined by any court to be illegal, invalid, or unenforceable, the
legality, validity, and enforceability of the remaining parts, terms, or
provisions shall not be affected thereby, and said illegal, unenforceable, or
invalid part, term, or provision shall be deemed to be not a part of this
Agreement.
26. Gender. As used in this Agreement, the masculine, feminine, or
neuter gender, and the singular or plural number, shall be deemed to include the
others whenever the context so indicates.
27. Counterparts. This Agreement may be executed in any number of
counterparts (including facsimile signature), each of which executed counterpart
shall be deemed to be a duplicate original of this Agreement, and all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by or
on behalf of each of the undersigned.
INNOVACOM, INC.
By: /S/ Xxxxx Xxxxxx Dated: April 28, 1999
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Xxxxx Xxxxxx, President
By: /S/ Xxxx Xxx Dated: April 28, 1999
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Xxxx Xxx, an individual
NATV Marketing
By: /S/ Xxxx Xxx Dated: April 28, 1999
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Xxxx Xxx, President
