TERMINATION AND RELEASE
EXHIBIT
10.1
TERMINATION AND
RELEASE
THIS
TERMINATION AND RELEASE (this “Termination and Release”), dated
as of February 28, 2008, is made by and among VMH GmbH, a German corporation
(“VMH”), Xxxxx
Xxxxxx (“Xxxxxx”), Datakom
Gesellschaft fuer Datenkommunikation mbH, a German corporation (“Datakom”), and
Intelligentias, Inc., a Nevada corporation (“Intelligentias”). VMH,
Krowka, Datakom and Intelligentias are sometimes hereinafter referred to
individually as a “Party” and
collectively, as the “Parties.”
RECITALS:
WHEREAS,
the Parties entered into that certain Stock Sale Agreement, dated as of June 7,
2007 and signed by the parties as of June 8, 2007, amended by an amendment to
that certain Stock Sale Agreement dated November 13, 2007 (hereinafter together
referred to as the “Stock Sale
Agreement”), pursuant to which Intelligentias purchased all of Datakom’s
outstanding stock from VMH and Krowka; and
WHEREAS,
upon the terms and subject to the conditions as hereinafter set forth, the
Parties have agreed to terminate the Stock Sale Agreement and that this
Termination and Release shall operate as a full and final release of all claims
by and between the Parties hereto which have arisen or may arise under the Stock
Sale Agreement.
NOW,
THEREFORE, with intent to be legally bound hereby and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereby agree as follows:
SECTION
1. Termination
and Annulment of Stock
Sale Agreement and Return of Consideration.
(a) Any and
all contracts, agreements, arrangements, and understandings arising under the
Stock Sale Agreement are hereby terminated and annulled retroactively, as of
December 15, 2007, and of no further force or effect, and no rights, duties,
obligations, or liabilities arising thereunder or relating thereto shall survive
this termination and annulment.
(b) Concurrently
with the execution of this Termination and Release, (i) VMH and Krowka will
deposit with Xxxxxxxxxxxx Rechtsanwalte (the “Cash Escrow Agent”)
by certified check, payable to the Cash Escrow Agent, or by wire transfer of
immediately available funds, an aggregate of two million United States dollars
(US$2,000,000) (the “Escrow Funds”), which
the Cash Escrow Agent shall deposit in the following account (the “Escrow
Account”):
BANK ACC.
HOLDER: Xxxxxxxxxxxx Rechtsanwaelte
ACC. NO.:
120 79 27 80 USD
BANK:
Commerzbank AG, Berlin
IBAN: DE
2010040000012072780USD
SWIFT:
XXXXXXXXXXX
BANK
ADDRESS: Commerzbank
AG
Xxxxxxxxxxxxx.
0
00000
Xxxxxx
Xxxxxxx
TELEFAX:
x00-00-000 00 399
and (ii)
VMH will deliver to Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attn: Xxxxxxxxxxx X. Xxxxxxx, Esq., (the
“Stock Escrow
Agent”) one or more stock certificates evidencing an aggregate of
fourteen million restricted shares of common stock, par value $0.0001 per share,
of Intelligentias (the “Escrow Shares” and,
together with the Escrow Funds, the “Escrow
Consideration”).
(c) The
Escrow Funds and the Escrow Shares shall be released from the Cash Escrow
Account and the Stock Exchange Account, respectively, pursuant to the terms and
conditions of that certain Escrow Agreement among Intelligentias, VMH, the Cash
Escrow Agent and the Stock Escrow Agent, dated as of February 28, 2008, and
attached hereto as Exhibit
A.
(d) VMH
represents and warrants to Intelligentias that it has good and valid title to
the Escrow Shares, free and clear of all liens and encumbrances.
(e) In
connection with entering into the Stock Sale Agreement, and from June 7, 2007
through the date of this Agreement, the Parties hereto have disclosed to each
other and their respective affiliates, directors, officers, employees, advisors,
agents and representatives (the “Representatives”)
non-public information and other information (whether in oral, written or other
form, electronically stored or otherwise), including, but not limited to written
or electronic notes, analyses, summaries, compilations, studies,
interpretations, charts and other materials prepared by the receiving Party
which contain, reflect or are otherwise based upon such non-public information,
concerning the disclosing Party, its affiliates and subsidiaries (hereinafter
collectively referred to as the “Confidential
Information”). Notwithstanding anything herein to the
contrary, the Parties will keep the Confidential Information strictly
confidential and will not (except as required by applicable law, regulation or
legal process), without the disclosing Party’s prior written consent, disclose
any Confidential Information. Each Party agrees to be responsible for
any breach of this Section 1(e) by its Representatives. The term
“Confidential Information” does not include information that (a) was or becomes
generally available to the public other than as a result of a disclosure by the
receiving Party or any of its Representatives; (b) was available to the
receiving Party or its Representatives on a non-confidential basis prior to its
disclosure to the receiving Party by the disclosing Party or any of its
Representatives; (c) was developed independent of the information derived from
the Confidential Information; or (d) becomes available to the receiving Party or
its Representatives on a non-confidential basis from a source other than the
disclosing Party or any of its
Representatives
who are not otherwise known to the receiving Party to be bound not to disclose
such information pursuant to a contractual, legal or fiduciary
obligation.
SECTION
2. Releases.
(a) Full, Final and Complete
Release of Intelligentias. Each of VMH, Krowka and Datakom
(the “Seller Releasing
Parties”) does hereby fully, finally, completely and absolutely release,
acquit and forever discharge Intelligentias and its respective current and
former partners, members, officers, directors, shareholders, employees, agents,
attorneys, parent companies, subsidiaries, affiliates, heirs, successors,
assigns, and representatives (collectively the “Intelligentias Released
Parties”) and all those at interest therewith of and from any and all
claims, demands, actions, remedies, causes of action, lawsuits, arbitrations,
debts, liabilities, contracts, damages, costs (including, without limitation,
attorneys’ fees and all costs of court or other proceedings), expenses and
losses of every kind or nature, whether arising by contract, tort or other
theory, at this time known or unknown, direct or indirect, fixed or contingent,
accrued or unaccrued, matured or unmatured, liquidated or unliquidated, in law,
by statute, by regulation, by court order, or in equity, that the Seller
Releasing Parties and all heirs, beneficiaries, executors, administrators,
personal representatives, successors, assigns, agents, employees, or
representatives of the Seller Releasing Parties and all those at interest
therewith, ever had or now has, for, upon or by reason or arising out of or
related directly or indirectly to the Intelligentias Released Parties concerning
or in any way related to (a) the Stock Sale Agreement or any transaction
contemplated therein; (b) the conduct of the business of the Intelligentias
Released Parties between the date of the Stock Sale Agreement and the date of
this Termination and Release; and (c) the receipt, dissemination or use of any
information received from the Intelligentias Released Parties prior to the date
of this Termination and Release.
(b) Full, Final and Complete
Release of VMH, Krowka and
Datakom. Intelligentias (the “Intelligentias Releasing
Party”) does hereby fully, finally, completely and absolutely release,
acquit and forever discharge VMH, Krowka and Datakom and their respective
current and former partners, members, officers, directors, shareholders,
employees, agents, attorneys, parent companies, subsidiaries, affiliates, heirs,
successors, assigns, and representatives (collectively the “Seller Released
Parties”) and all those at interest therewith of and from any and all
claims, demands, actions, remedies, causes of action, lawsuits, arbitrations,
debts, liabilities, contracts, damages, costs (including, without limitation,
attorneys’ fees and all costs of court or other proceedings), expenses and
losses of every kind or nature, whether arising by contract, tort or other
theory, at this time known or unknown, direct or indirect, fixed or contingent,
accrued or unaccrued, matured or unmatured, liquidated or unliquidated, in law,
by statute, by regulation, by court order, or in equity, that the Intelligentias
Releasing Party and all heirs, beneficiaries, executors, administrators,
personal representatives, successors, assigns, agents, employees, or
representatives of the Intelligentias Releasing Party and all those at interest
therewith, ever had or now has, for, upon or by reason or arising out of or
related directly or indirectly to the Seller Released Parties concerning or in
any way related to the Stock Sale Agreement.
(c) Each Party Shall Bear Its
Own Costs and Fees. Each Party will bear its own costs and
attorneys’ fees related in any manner to this Termination and
Release.
SECTION
3. Acknowledgment.
(a) Comprehension of
Document. Each Party acknowledges that they enter into this
Termination and Release fully and voluntarily from their own information and
investigation and that they have had an opportunity to consult with independent
legal counsel and other advisors regarding all legal and other effects of this
Termination and Release. Each Party acknowledges that no
representations were made to induce execution of this Termination and Release
that are not expressly contained herein.
(b) Release of All
Claims. It is the express intent of all the Parties that this
Termination and Release operate as a full, final and complete release of any and
all claims (except as specified herein) that a releasing Party may have or ever
had against the released Parties on or prior to the date hereof, regardless of
whether such claim exists or may ever have existed under any state law, federal
law or any foreign jurisdiction’s law.
SECTION
4. Miscellaneous.
(a) Governing
Law. This Termination and Release shall be governed by, and
construed in accordance with, the internal laws of the State of California
applicable to contracts executed and fully performed within the State of
California (without
giving effect to any choice of law principles thereof which may direct the
application of the laws of another jurisdiction).
(b) Consent to
Jurisdiction. Each Party hereby irrevocably submits to the
jurisdiction of any California State or Federal Court sitting in the City and
County of San
Francisco
in respect of any suit, action or proceeding arising out of or relating to this
Termination and Release, and irrevocably accepts for itself, generally and
unconditionally, jurisdiction of the aforesaid courts. Each Party
irrevocably waives, to the fullest extent such Party may effectively do so under
applicable law, trial by jury and any objection that such Party may now or
hereafter have to the laying of venue of any such suit, action or proceeding
brought in any such court and any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient
forum. Nothing herein shall affect the right of any Party hereto to
serve process in any manner permitted by law or to commence legal proceedings or
otherwise proceed against any other Party in any other
jurisdiction. In addition to any other form of service of process
authorized by law, service of process in any action, suit, proceeding or claim
hereunder shall be sufficient if mailed to each Party hereto at the address
specified in Section 4(d) and such service shall constitute “personal service”
for purposes of such action, suit, proceeding or claim.
(c) Entire Agreement.
This Termination and Release and Exhibit A referred to herein contain the
complete agreement among the Parties hereto with respect to the subject matter
hereof and thereof, supersede all prior agreements and understandings and no
other understanding which modifies the terms hereof shall be binding unless made
in writing and executed by authorized representatives of the Parties
hereto.
(d) Notices. Any notice, consent,
request or other communication made or given in accordance with this Termination
and Release shall be in writing and shall be deemed effectively given when
actually received if delivered in person, sent by internationally recognized
overnight courier service, or sent by facsimile transmission or, if mailed, five
business days after mailing by registered or certified mail, return receipt
requested to those listed below at their following respective addresses or
facsimile numbers:
|
IF
TO INTELLIGENTIAS:
|
000
Xxxx Xxxxxxx Xxxxx
|
|
|
0xx
Xxxxx
|
|
|
Xxxxxxx
Xxxx, XX 00000
|
|
|
Telecopier:
|
Attn: Xxxxx
Xxxxxxxx
|
IF
TO VMH:
|
Xxxxxxxxxxxxx
Xxx. 0
|
|
|
00000
Xxxxxx
|
|
|
Xxxxxxx
|
|
|
Telecopier:
|
Attn: Xxxx
Xxxxxxx
|
IF
TO KROWKA:
|
Xxxx-Xxxxxxxx-Xxx.
0
|
|
|
00000
Xxxxxxxx
|
|
|
Xxxxxxx
|
|
|
Telecopier:
|
|
IF
TO DATAKOM:
|
Xxxxx-Xxxxxxx-Xxxxxxx
00
|
|
|
00000
Xxxxxxxx
|
Xxxxxxx
|
|
Telecopier:
|
Attn:
or to
such other address or addresses as a Party may from time to time designate as to
itself, by notice as provided herein, provided that any such notice shall be
deemed effectively given only upon receipt.
(e) Severability. If
one or more provisions of this Termination and Release are held to be
unenforceable under applicable law, such provision shall be excluded from this
Termination and Release and the balance of the Termination and Release shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
(f) Successors and
Assigns. The
terms and conditions of this Termination and Release shall inure to the benefit
of and be binding upon the respective successors, heirs, executors, legal
representatives, and assigns of the Parties hereto.
(g) Counterparts. This
Termination and Release may be executed in any number of counterparts, each of
which shall be an original, but all of which, taken together, shall constitute
one and the same document.
(h) Titles. The
titles, captions or headings of the Sections herein are inserted for convenience
of reference only and are not intended to be a part of or affect the meaning or
interpretation of this Termination and Release.
[Remainder
of Page Intentionally Left Blank; Signature Pages Follow]
IN
WITNESS WHEREOF, the Parties hereto have caused this Termination and Release to
be executed as of the date first above written.
By: /s/ Xxxxx
Xxxxxxxx
Name:
Xxxxx Xxxxxxxx
Title:
President
VMH
GMBH
By: /s/ Xxxx
Xxxxxxx
Name: Xxxx
Xxxxxxx
Title:
Managing Director
/s/ Xxxxx
Xxxxxx
Xxxxx
Xxxxxx
DATAKOM
GESELLSCHAFT FUER DATENKOMMUNIKATION MBH
By: /s/ Xxxx
Xxxxxxx
Name: Xxxx
Xxxxxxx
Title:
Managing Director
