EXHIBIT 10.1
[FORM OF RELEASE AND COVENANT NOT TO SUE]
TO ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW THAT:
WHEREAS on January 21, 2005, Vanguard Info-Solutions Corporation, The A
Consulting Team, Inc. ("TACT"), Xxxxxx XxxXxx, and Xxxxxx Xxxx (among others)
entered into certain agreements in contemplation of a transaction (the
"Contemplated Transaction") between Vanguard Info-Solutions Corp. and TACT,
among them: (i) the Share Exchange Agreement, among Vanguard Info-Solutions
Corp., its stockholders named therein, and TACT (the "Share Exchange
Agreement"); (ii) the Stock Purchase Agreement between Oak Finance Investments
Ltd. and TACT (the "Oak-TACT Agreement"); and (iii) the Stock Purchase Agreement
between Oak Finance Investments Ltd. and BenTov (the "Oak-BenTov Agreement")
(collectively, "the Transaction Agreements"); and
WHEREAS, on August 4, 2005, TACT and BenTov terminated the Contemplated
Transaction and the Transaction Agreements, pursuant to their respective terms,
each of which provided that the Agreements could be terminated where the
Contemplated Transaction had not been consummated by July 31, 2005 (Share
Exchange Agreement Section 12.2(i); Oak-TACT Agreement Section 11.1(b);
Oak-BenTov Agreement Section 12.1(b));
NOW, THEREFORE, in consideration of the sum of TEN DOLLARS ($10) and other good
and valuable consideration, including releases received from the following
parties:
[Insert names of parties who deliver releases]
receipt whereof is hereby acknowledged:
1. [Insert Name of Releasor] (the "RELEASORS") release and discharge [Insert
Names] (the "RELEASEES") from any and all claims, rights, obligations, demands,
charges, complaints, actions, suits, causes of action, losses, damages, bonds
and liabilities of any kind for damages or other relief that any one or more of
the RELEASORS ever had, now has or hereafter may have against any one or more of
the RELEASEES by reason of any matter, cause or thing whatsoever from the
beginning of the world to and including the date of full execution of this
Release and Covenant Not to Sue, whether known or unknown, suspected or
unsuspected, foreseen or unforeseen, accrued or unaccrued, actual or potential,
contingent or absolute, secured or unsecured, disclosed or undisclosed, hidden
or concealed, direct or derivative or brought in any other capacity, whether
under federal, state, common or any other law, including (without limitation)
all of the claims, if any, that may have survived the termination of the Share
Exchange Agreement (Section 12.5(b)), the Oak-TACT Agreement (Section 11.2), or
the Oak-BenTov Agreement (Section 12.2) (the "Released Claims").
2. The RELEASORS covenant not to file or commence, or solicit or encourage or
directly or indirectly cause others to file or commence, any claim, right,
demand, charge, complaint, suit, cause of action, action or proceeding of any
kind or nature whatsoever asserting, directly or indirectly: (a) any of the
Released Claims; and (b) any and all claims that any one or more of the
RELEASORS ever had, now has, or may have in the future that concern or relate in
any way, whether directly or indirectly, to the Contemplated Transaction or the
Transaction Agreements, against any individual or entity, whether the individual
or entity is known or unknown, including (without limitation) the RELEASEES and
the Other Affected Parties (as defined below).
3. Notwithstanding anything herein to the contrary, nothing shall limit the
right of the RELEASORS to assert any of the claims that are the subject of the
above paragraph 2 as a counterclaim or an affirmative defense against an
opposing party in response to any claim, right, demand, charge, complaint, suit,
cause of action, action or proceeding by that opposing party against such
RELEASOR that concerns or relates in any way, directly or indirectly, to the
Contemplated Transaction or the Transaction Agreements, provided that such
RELEASOR asserting a counterclaim or an affirmative defense has not breached
this Release and Covenant Not to Sue, and provided that no claim released
against [insert name of applicable Releasees] in paragraph 1 above may ever be
asserted as a counterclaim or an affirmative defense in any event and provided
that no counterclaim, affirmative defense or other statement (whether pled in
court or otherwise made, publicly or privately) shall contain any allegation,
statement, observation, or opinion that is calculated to or is likely to
undermine, impugn, disparage, or otherwise in any way reflect adversely or
detrimentally upon any of the [insert names of applicable RELEASEES] or that
accuses or implies that any of the [insert names of applicable RELEASEES]
engaged in any wrongful, unlawful or improper conduct.
4. "Other Affected Parties" shall mean:
[Insert Names of Other Affected Parties]
5. The RELEASORS waive their rights, to the extent permitted by law, to any
benefits of the provision of section 1542 of the California Civil Code or any
other similar state law, federal law, principle of common law, or any other law,
which may have the effect of limiting the releases set forth above. Section 1542
of the California Civil Code provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED
HIS OR HER SETTLEMENT WITH THE DEBTOR.
6. This Release and Covenant Not to Xxx xxx not be changed orally, and shall be
governed by and construed under the laws of the State of New York without resort
to its conflict of laws principles.
7. This Release and Covenant Not to Xxx xxx be executed with original or
facsimile signatures in one or more counterparts, each of which will be deemed
to be an original copy of this Release and Covenant Not to Xxx and all of which,
when taken together, will be deemed to constitute one-and-the-same document.
[THE REST OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the RELEASORS have hereunto set RELEASORS' hands
on the ____ day of May, 2006.
[NAME OF XXXXXXXX]
By: _________________________________
Name: _______________________________
Title: ______________________________
STATE OF NEW YORK, COUNTY OF NEW YORK SS.:
On May ___, 2006, before me, the undersigned, personally came
______________________, to me known or proved to me on the basis of satisfactory
evidence to be the individual whose name is subscribed to the within instrument,
who, by me duly sworn, did depose and say that deponent resides at
__________________________________________, that deponent is the
__________________ of [Name of Releasor], the corporation described in, and
which executed the foregoing RELEASE, and that deponent signed deponent's name
pursuant to authority granted by the board of directors of the corporation.
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(signature and office of individual taking
acknowledgment)
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[NAME OF RELEASOR]
STATE OF NEW YORK, COUNTY OF NEW YORK SS.:
On May ____, 2006, before me, the undersigned, personally appeared [NAME OF
XXXXXXXX], personally known to me or proved to me on the basis of satisfactory
evidence to be the individual whose name is subscribed to the within instrument
and acknowledged to me that he executed the same.
------------------------------
(signature and office of individual taking
acknowledgment)
