EXHIBIT 10.6a
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release ("Agreement") is entered into, by
and among IVI Communications, Inc. ("IVIC") on the one hand, and Xxxxxx X.
Freshman, Xxxx Xxxxxx and Quik Communications Hosting, Inc. ("QuikCom")
(collectively "Freshman parties") on the other hand (IVIC and the Freshman
parties may be referred to collectively as the "Parties" herein), and is made
with respect to the following facts and circumstances:
RECITALS
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A. On or about November 21, 2002, Xxxxxx X. Freshman ("Freshman") and
IVIC entered into an agreement wherein, on or about December 1, 2002, Freshman
provided a loan of one hundred thousand dollars ($100,000.00) to IVIC, and IVIC
agreed to repay the debt with interest monthly at the rate of twelve percent
(12%) per annum, all due in twelve (12) months. As further consideration for the
loan, the agreement obligated IVIC to issue to Freshman a warrant to purchase
common stock from IVIC exercisable at ten cents ($.10) per share for one hundred
twenty five thousand (125,000) shares for a period of thirty six (36) months.
B. On or about November 21, 2002, Xxxx Xxxxxx ("Xxxxxx"), on behalf of
QuikCom, and IVIC entered into an agreement wherein, on or about December 1,
2002, IVIC acquired QuikCom for one million two hundred fifty thousand
(1,250,000) shares of IVIC common stock.
C. The Parties desire to rescind these transactions and fully and
finally compromise and settle all claims (whether direct, vicarious, or
otherwise) either asserted or that could have been asserted in any forum or
otherwise, to finally compromise and settle all disputes that were or could have
been set forth and to exchange mutual general releases of any and all claims and
contentions which they had, have, or may hereafter learn they have against each
other and all their heirs, successors, employees, agents, shareholders,
salespersons, contractors, independent contractors, officers, directors,
attorneys, parents, subsidiaries, other affiliates and assigns, pursuant to the
terms set forth below.
TERMS OF SETTLEMENT
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NOW, THEREFORE, in consideration of the foregoing recitals, the mutual
execution of this Agreement and the promises set forth below, the Parties agree
as follows:
1. SETTLEMENT OF THE FRESHMAN LOAN. IVIC agrees to pay, and Freshman
agrees to accept, ninety-two thousand dollars ($92,000.00) in full satisfaction
and settlement of the one hundred thousand dollar ($100,000.00) loan and
debenture, which was executed on December 1, 2002, by IVIC and Xxxx Xxxxxx.
Freshman further agrees that any claims to balances due and owing over
ninety-two thousand dollars ($92,000.00) he may have, whether denominated as
principal or interest, are hereby extinguished in their entirety. Freshman
further agrees that the warrant exercisable for the purchase of 125,000 shares
of IVIC common stock, which was received as part of the loan agreement, and
which is acknowledged in the debenture, is extinguished upon payment to
Freshman, by IVIC, of the aforementioned ninety-two thousand dollars
($92,000.00).
2. SETTLEMENT OF THE QUIKCOM ACQUISITION. The Parties agree that the
rights to one million two hundred fifty thousand (1,250,000) shares of IVIC
common stock are hereby cancelled and returned to IVIC, subject to the
fulfillment of paragraph 1 of this Agreement. IVIC agrees that both QuikCom and
the assets listed on Exhibit "A" hereto which are in the present possession of
IVIC or presently located either at the Dreamtank facility or at the 0000 X.
Xxxxxxx Xxxxxxxxx facility, are hereby returned to Xxxxxx, except for two (2)
Cisco 7606 Routers. Any assets listed on Exhibit "A" presently at the Dreamtank
facility or the 0000 Xxxx Xxxxxxx Xxxxxxxxx facility are deemed returned to
Xxxxxx upon fulfillment of paragraph 1 and execution of this Agreement. All
expenses of QuikCom for the period of IVIC's ownership are hereby to be paid by
IVIC. The Freshman parties are hereby responsible for any QuikCom expenses prior
to December 1, 2002 or after the date of execution of this Agreement. IVIC
represents that it incurred no liabilities during the period of IVIC's ownership
of QuikCom which would become due after the execution of this Agreement. The
reacquisition of QuikCom by the Freshman parties is hereby effective upon full
and complete execution of this Agreement by IVIC and the Freshman parties, and
subject to the payment and fulfillment of IVIC's obligations pursuant to
paragraph 1 of this Agreement.
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3. RELEASE OF IVIC BY THE FRESHMAN PARTIES. The Freshman Parties, and
each of them, for themselves and for their heirs, agents, successors, attorneys,
and assignees, hereby release and forever discharge IVIC, and all of their
present or former agents, employees, directors, officers, predecessors,
successors, attorneys, members, shareholders, and assignees, of and from any and
all claims, debts, defenses, liabilities, costs, attorneys' fees, actions, suits
at law or equity, demands, contracts, expenses, damages, whether general,
special, punitive, exemplary, contractual or extra contractual, and causes of
action of any kind and nature which the Freshman Parties may have against IVIC
and/or any present or former agents, employees, directors, officers,
predecessors, successors, attorneys, and assignees of IVIC. This release does
not extend to the obligations incurred in this Agreement. This release is hereby
effective upon full and complete execution of this Agreement by IVIC and the
Freshman parties, and subject to the payment and fulfillment of IVIC's
obligations pursuant to paragraph 1 of this Agreement.
4. RELEASE OF THE FRESHMAN PARTIES BY IVIC. IVIC, for themselves and
their members, shareholders, agents, employees, directors, officers,
predecessors, successors, attorneys, and assignees, hereby release and forever
discharge the Freshman Parties and all of their present or former agents, heirs,
successors, attorneys, and assignees, of and from any and all claims, debts,
defenses, liabilities, costs, attorneys' fees, actions, suits at law or equity,
demands, contracts, expenses, damages, whether general, special, punitive,
exemplary, contractual or extra contractual, and causes of action of any kind
and nature which IVIC may now have against the Freshman Parties and/or any
present or former agents, heirs, successors, attorneys, and assignees of the
Freshman Parties. This release does not extend to the obligations incurred in
this Agreement. This release is hereby effective upon full and complete
execution of this Agreement by IVIC and the Freshman parties, and subject to the
payment and fulfillment of IVIC's obligations pursuant to paragraph 1 of this
Agreement.
5. WAIVER OF UNKNOWN CLAIMS. The Parties hereby agree that this
Agreement shall not be subject to any claim of invalidity, fraud, duress,
deceit, mistake of law or mistake of fact, and that it accurately expresses the
full, final, and complete settlement of the Parties. Each party hereby agrees
that it waives and releases all of the claims within the scope of the releases
set forth in this Agreement to the fullest extent permitted by law. The Parties
may hereafter discover facts other than or different from those that they know,
suspect, or believe to be true with respect to the subject matter of the claims
released herein, but the Parties hereby expressly agree that they have waived
and fully, finally, and forever settled and released any known or unknown,
suspected or unsuspected, asserted or unasserted, contingent or non-contingent
claim within the scope of the claims released herein, whether or not concealed
or hidden, without regard to the subsequent discovery or existence of such other
or different facts (the "Released Matters"). California Civil Code Section 1542
provides that "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." Nevertheless, the Parties hereby expressly and knowingly waive the
provisions of California Civil Code Section 1542 and any other similar existing
or hereafter existing provision of state, federal, or foreign law.
6. RELEASE GIVEN IN GOOD FAITH. The Parties, and each of them,
expressly represent that this Agreement is entered into and the releases set
forth herein are made in good faith within the meaning of California Code of
Civil Procedure Section 877 et seq.
7. FURTHER ASSURANCES. The Parties, and each of them, expressly agree
to execute any other documents that are reasonably necessary to effectuate the
terms, conditions, spirit and intent of this Agreement.
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8. NO ADMISSION OF LIABILITY. This Agreement is entered into by the
Parties solely for the purpose of compromising and settling the matters in
dispute between them. This Agreement does not constitute and shall not be
construed as an admission by either IVIC or the Freshman Parties of the truth or
validity of any claims or counterclaims that could be asserted.
9. ATTORNEYS' FEES. It is expressly understood that each party shall
bear its own costs and attorneys' fees incurred with respect to this Agreement.
10. CHOICE OF LAW. This Agreement is made and entered into in the State
of California, and the Agreement and any rights, remedies or obligations
provided for herein shall be construed and enforced in accordance with the laws
of the State of California.
11. ATTORNEYS' FEES AND COSTS UPON BREACH. If any party hereto breaches
this Agreement, it shall be liable to the non-breaching party for the
non-breaching party's reasonable attorneys' fees, costs and expenses incurred to
enforce the provisions of this Agreement. A non-breaching party shall be
entitled to recover, as an element of costs of suit and not as damages, actual
attorneys' fees to be fixed by the Court if it is a "prevailing party." A
"prevailing party" shall be a party entitled to recover its costs of suit,
regardless of whether such suit proceeds to final judgment. A non-breaching
party not entitled to recover its costs shall not be entitled to recover its
attorneys fees. No sums for attorneys' fees shall be counted in calculating the
amount of a judgment for the purposes of determining if a non-breaching party is
entitled to recover costs or attorneys' fees.
12. SEVERABILITY. If any portion, provision or part of this Agreement
is held, determined or adjudicated to be invalid, unenforceable or void for any
reason whatsoever, each such portion, provision or part shall be severed from
the remaining portions, provisions or parts of this Agreement and shall not
affect the validity or enforceability of such remaining portions, provisions or
parts.
13. CONFIDENTIALITY. The Parties and their respective employees,
officers, directors, attorneys, agents and representatives shall keep
confidential and not disclose, publicize, or cause to be publicized, to any
person or entity, any of the terms of this Agreement, except that any of the
Parties or their counsel may disclose the terms of this Agreement, but only to
the extent authorized or required: (a) pursuant to a court order; (b) to any
party's accountants, financial advisors, or lawyers or to any taxing authority
in connection with an audit or examination by such taxing authority; (c) if and
to the extent required under state or federal securities laws or in accordance
with the rules and procedures of any exchange or other regulatory body; or (d)
if disclosure is necessary in a judicial action to enforce the terms of the
Agreement. If any disclosure may be required pursuant to the provisions of (a),
(c), or (d) of this paragraph, such disclosing party shall notify and consult
with the other party as soon as reasonably possible after making such
determination and in no event less than five (5) days prior to making such
disclosure. In the event that disclosure may be required in a judicial
proceeding, the party from whom disclosure is sought shall use reasonable
efforts to preserve the confidentiality of the Agreement and its terms,
including but not limited to asserting any valid defense or privilege and/or
seeking a protective order or other confidential treatment for the information
subject to possible disclosure. The occurrence of any disclosure authorized by
this paragraph hereby does not constitute a waiver by the non-disclosing party
of the confidentiality provided for herein, and the disclosing party shall make
no further disclosure except as and to the limited extent authorized by this
paragraph.
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14. CONSTRUCTION. This Agreement shall not be construed against the
party preparing it but shall be construed as if all Parties, and each of them,
jointly prepared this Agreement, and any uncertainty or ambiguity shall not be
interpreted against any one party.
15. MODIFICATIONS. This Agreement shall not be modified by any party by
any representation made before or after the execution of this Agreement. All
modifications must be in writing and signed by the Parties and each of them.
16. REPRESENTATION BY COUNSEL. The Parties, and each of them,
acknowledge that this Agreement is executed voluntarily by each of them, without
any duress or undue influence on the part of, or on behalf of, either of them.
The Parties, and each of them, further acknowledge that they have been
represented in the negotiations for, and in the performance of, this Agreement
by counsel of their choice, and that they have read this Agreement and have had
it fully explained to them by such counsel, and that they are fully aware of the
contents of this Agreement and its legal effect.
17. EXECUTION OF COUNTERPARTS. This Agreement may be executed in any
number of counterparts. All of such counterparts together shall constitute one
document at such time the counterparts are executed, which shall, in total,
contain the signatures of all the Parties hereto.
18. ENTIRE UNDERSTANDING. This Agreement contains the entire
understanding and agreement between the Parties with respect to the matters
referred to herein. No other representations, covenants, undertakings or other
prior or contemporaneous agreements, oral or written, respecting such matters,
which are not specifically incorporated herein, shall be deemed in any way to
exist or bind any of the Parties. The Parties, and each of them, acknowledge
that they have not executed this Agreement in reliance on any such promise,
representation or warranty.
19. AUTHORITY OF SIGNATORIES. The undersigned, by execution of this
Agreement, acknowledge and represent that they are duly authorized to execute
this Agreement on behalf of themselves and/or the party they represent. Further,
the Parties represent that they have not assigned or transferred, or purported
to assign or transfer, to any person or entity, any claim or any portion
thereof, or interest therein, and agree to indemnify, defend and hold one
another or any related person or entity of the Parties, as described above,
harmless from and against any and all claims, based on or arising out of any
such assignment or transfer, or purported assignment or transfer, of any claims
or any portion thereof or interest therein.
DATED: November 7, 2003 By: /s/ Xxxxxx X. Freshman
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Xxxxxx X. Freshman
DATED: November 7, 2003 By: /s/ Xxxx X. Xxxxxx
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Xxxx Xxxxxx
DATED: November 7, 2003 By: /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
DATED: November 7, 2003 QUIK COMMUNICATIONS HOSTING, INC.
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
DATED: November 7, 2003 IVI COMMUNICATIONS, INC.
By: /s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
DATED: November 7, 2003 IVI COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxx
