EXHIBIT 10.5
RELEASE AND SETTLEMENT AGREEMEHNT
---------------------------------
This Mutual Release and Settlement Agreement (the "Release") is entered
into as of March 30, 2003 is by and between Bricap, LLC ("Claimant"), and
Skyframes, Inc., a Utah corporation ("Skyframes").
RECITALS
--------
WHEREAS, Claimant believes he has one or more known of unknown potential
claim against Skyframes related to its use of certain technology used in its
business, and embodied in a patent for the VOS technology;
WHEREAS, Skyframes wishes to settle any potential claims from Claimant,
without admitting to any liability on his behalf; and
WHEREAS, Skyframes is willing to transfer shares of restricted common
shares to Claimant to extinguish any potential claim by Claimant.
In consideration of the foregoing recitals, the parties agree as follows:
1. INCORPORATION OF RECITAL PARAGRAPH. The recitals are incorporated herein
-----------------------------------
by this reference.
2. CONSIDERATION AND MUTUAL RELEASE. In consideration of and subject to the
---------------------------------
terms set forth in Section 3, each party on behalf of itself, its partners,
successors, assigns, agents, representatives, employees, affiliates, and all
persons acting by, through, under or in consort with it, if any, hereby releases
and discharges the other party and its owners, stockholders, partners,
predecessors, successors, assigns, agents, directors, officers, representatives,
employees, affiliates, attorneys, subsidiaries and all persons acting by,
through, under or in consort with it (collectively as to each party, its
"Related Parties"), if any, from any and all rights, causes of action, demands,
damages, costs, loss of services, expenses and compensation whatsoever, claims,
duties, obligations and actions which each party and its above-mentioned agents,
successors, representatives and assigns now have, or as may hereinafter arise
against the other party and its above-mentioned employees, agents, successors
and assigns, arising out of or connected in any manner with any technology used
by Skyframes. No party to this Release is hereby admitting or consenting to any
wrongdoing.
3. TERMS. In settlement, Skyframes shall issue to Claimant 900,000 shares of
-----
restricted common stock of Skyframes. Skyframes makes no representations as to
the future value of such shares.
4. WAIVER OF CIVIL CODE SECTION 1542. Notwithstanding Section 1542 of the
------------------------------------
California Civil Code, which 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
agreement, which if known by him must have materially affected his
settlement with the debtor.
This Agreement releases all damages or losses whether known, unknown, foreseen
or unforeseen which each party may have against the other party. Each party
acknowledges that it understands and acknowledges the significance and
consequences of such specific waiver of Section 1542, and hereby assumes full
responsibility for any damages or losses she, in the future, may incur or may
have incurred.
5. MISCELLANEOUS.
-------------
5.1 This Agreement is freely and voluntarily executed by each party after
having been apprised of all relevant information and all data. Each
party, in executing this Agreement, has not relied on any inducements,
promises, or representations made by any other party hereto, or their
employees or agents, and the execution of this Agreement does not
represent an admission of liability on the part of any party hereto.
5.2 In the event that legal proceedings are commenced to enforce or
interpret any of the terms or conditions of this Agreement, or for
breach of any such terms and conditions, the losing party in such
proceeding shall pay to the prevailing party such reasonable sums for
attorneys' fees and costs incurred as may be fixed by the court or
jury in addition to any other relief to which it may be entitled.
5.3 This Agreement is to be governed b, and construed in accordance with,
the laws of the State of California.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
Bricap, LLC
Name:
Title:
