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EXHIBIT 10.23
SETTLEMENT AGREEMENT AND GENERAL RELEASE
This Settlement Agreement and General Release (this "Agreement")
is made by and between eSat, Inc., a Nevada corporation (the "Company"), and
Xxxxx Xxxxxxx ("Xxxxxxx") as of the date executed by both parties (the
"Effective Date").
WHEREAS, Xxxxxxx and the Company are parties to that certain
Resignation Agreement dated March 22, 1999 (the "Resignation Agreement");
WHEREAS, the parties desire to enter this Agreement to resolve
certain disputes, including matters existing under the Resignation Agreement;
WHEREAS, Xxxxxxx claims the Company currently owes to Xxxxxxx the
sum of $290,000 (the "Resignation Payments") pursuant to the terms of the
Resignation Agreement.
NOW, THEREFORE, in consideration of the mutual promises made
herein, the parties hereto agree as follows:
1. Consideration. Upon the execution of this Agreement, the
Company agrees to pay to Xxxxxxx, and Xxxxxxx agrees to accept from the Company,
in full and complete satisfaction of the Resignation Payments, the sum of
$90,000. Upon payment of the $90,000 the Company shall have no continuing
payment obligations to Xxxxxxx under the Resignation Agreement.
2. Resignation Rights. In consideration for entering into this
Agreement, the Company agrees to grant, and hereby does grant, to Xxxxxxx
customary nontransferable piggyback registration rights with normal underwriter
outs on all company registrations following the Company's current registration
statement on Form SB-2, with respect to the 1,500,000 shares of the Company's
common stock issuable to Xxxxxxx upon exercise of his stock options (the "eSat
Shares"). The foregoing piggyback registration rights shall be set forth in a
Registration Rights Agreement between Xxxxxxx and the Company.
3. Release of URL. Xxxxxxx hereby agrees to transfer to the
Company all rights, title and interest he may have in the Internet URL
"XxxxxxXxxxxXxxx.xxx" and all related URL's trademarks and copyrights and to
execute any documents requested by the Company reasonably required to effect
such transfer.
4. Reimbursement of Penalties. The Company acknowledges and
understands that Xxxxxxx has sold shares of the Company's common stock to
Generation Capital. The Company hereby
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agrees that it will not delay the transfer of any shares sold by xxxxxxx and
hereby agrees to reimburse Xxxxxxx for, or pay on his behalf, any penalties
incurred by Xxxxxxx as a result of the company's delaying such transfer.
5. Non-Admission of Liability. this Agreement shall not in any
way be construed as an admission by either party that they have acted wrongfully
with respect to the other or any other person, or that either party has any
rights whatsoever against the other, and each party specifically disclaims any
liability to or wrongful acts against the other or any other person, on the
[part of themselves, their employees or agents.
6. Mutual Release of Claims. In consideration of this Agreement,
except as to the rights and obligations arising under this Agreement, each party
hereby fully releases, discharges and acquits the other party, and such party's
past and present representative, agents, employees, partners, officers,
directors, affiliates, successors and assigns from any and all past, present,
and future claims, debts, promises, acts, demands, causes of action, obligation,
rights and/or liabilities of every kind and nature whatsoever, whether known or
unknown, suspected or unsuspected, including but not limited to, those which
arise out of or are in anyway connected with or related to the Resignation
Agreement.
7. Civil Code Section 1542. Xxxxxxx and the Company each
represents that he or it is not aware of any claims against the other party
other than the claims that re released by this Agreement. Each party
acknowledges that he or it has been advised by legal counsel and is familiar
with the provisions of California Civil Code Section 1542, 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.
Being aware of said code section, each agrees to expressly waive
any rights he or it may have hereunder, as well as under any other statute or
common law principles of similar effect.
Xxxxxxx'x Initials ____ Company's Initials ____
8. Confidentiality. Each party agrees to use his or its best
efforts to maintain in confidence the existence of this
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Agreement, the contents and terms of this agreement, and the consideration for
this Agreement (hereinafter collectively referred to as "Settlement
Information"), except as disclosure may be required by federal securities laws.
Each party agrees to take every reasonable precaution to prevent disclosure of
any Settlement Information to third parties, and agrees that there will be no
publicity, directly or indirectly, concerning any Settlement Information, except
as may be required by federal securities laws. Each party agrees to take every
precaution to disclose Settlement Information only to those attorneys,
accountants, governmental entities, judicial officers and family members who
have a reasonable need to know of such Settlement Information.
9. No Harmful Conduct. Each party agrees that it will not act in
any manner that might damage the business, relationships, prospects, reputation
or operations of the other party, including but not limited to making any
disparaging remarks, comments or publications regarding the other party. In this
regard, Company acknowledges and agrees that it will review prior disclosures or
written comments that it has made regarding Xxxxxxx in documents filed with the
Securities and Exchange Commission and will within a reasonable time retract any
disparaging statements or amend the applicable filings to remove such
disparaging statements.
10. Costs. The parties hereto shall each bear their own costs,
expert fees, attorneys' fees and other fees incurred in connection with this
Agreement.
11. Arbitration. The parties hereto agree that any and all
disputes arising out of the terms of this Agreement, their interpretation, and
any of the matters herein released, shall be subject to binding arbitration in
Orange County before the American Arbitration Association, or by an arbitrator
to be mutually agreed upon. The parties hereto agree that the prevailing party
in any arbitration shall be entitled to injunctive relief in any court of
competent jurisdiction to enforce the arbitration award. The parties hereto
agree that the prevailing party in any arbitration shall be awarded its
reasonable attorney's fees and costs. The award of the arbitrator shall be
issued and transmitted to the parties, and judgment on the award may be entered
in any court having jurisdiction thereunder.
12. Authority. Each party represents and warrants that he or it
has the capacity to act on his or its own behalf and on behalf of all who might
claim through such party to bind them to the terms and conditions of this
Agreement. Each party warrants and represents that there are no liens or claims
of lien
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or assignment in law or equity or otherwise of or against any of the claims or
causes of action released herein.
13. Representation by Attorney; No Representations. Each party
represents that he or it has consulted, or had adequate opportunity to consult,
with an attorney, and has carefully read and understands the scope and effect of
the provisions of this Agreement. Neither party has relied upon any
representations or statements made by the other party hereto which are not
specifically set forth in this Agreement.
14. Severability. In the event that any provision hereof becomes
or is declared by a court of competent jurisdiction to be illegal, unenforceable
or void, this Agreement shall continue in full force and effect without said
provision.
15. Entire Agreement. This Agreement represents the entire
agreement and understanding between Company and Xxxxxxx concerning the terms
hereof, and supersedes and replaces any and all prior agreements and
understandings between the parties.
16. No Oral Modification. This Agreement may only be amended in
writing signed by the parties hereto.
17. Governing Law. This Agreement shall be governed by the laws
of the State of California without reference to its conflict/choice of law
rules.
18. Counterparts. This Agreement may be executed in counterparts,
including electronically transmitted counterparts, and each counterpart shall
have the same force and effect as an original and shall constitute an effective,
binding agreement on the part of each of the undersigned.
IN WITNESS WHEREOF, Company and Xxxxxxx have executed this
Agreement on the respective dates set forth below.
eSAT, INC. Dated: February 23, 2000
By: /s/ XXXXXXX X. XXXXXX
Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
XXXXXXX Dated:___________________
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/s/ XXXXX XXXXXXX
Xxxxx Xxxxxxx
