AGREEMENT AND GENERAL RELEASE
Exhibit
10.6
AGREEMENT
AND GENERAL RELEASE
This
Agreement and General Release (“Agreement”) is entered
into by and between uVuMobile, Inc., a Delaware corporation
(“uVuMobile”) and Xxxxx Xxxxxx
(“Employee”) (uVuMobile and Employee are collectively referred
to as the “Parties”) and is effective as of the date
of execution by both parties (the “Effective
Date”).
RECITALS
WHEREAS,
Employee previously entered into an employment agreement with SmartVideo
Technologies, Inc. (“SVT”) (the “Prior
Agreement”); and
WHEREAS,
the Prior Agreement provided Employee with certain rights and
obligations with respect to his employment with SVT; and
WHEREAS,
Employee desires to terminate the Prior Agreement and to waive all rights and
obligations under the Prior Agreement and otherwise against SVT, uVuMobile
and
related entities;
NOW,
THEREFORE, in consideration of the foregoing premises and the mutual
covenants set forth herein, it is agreed:
AGREEMENT
1. Consideration
provided by uVuMobile: In exchange for the promises and
Agreements of Employee hereunder, uVuMobile hereby agrees to provide Employee
with a gross severance payment of $50,000 (the “Severance Payment”), subject to
withholding of all applicable local, state and federal taxes and subject to
the
Company receiving financing in the amount of $1 million in actual funds received
and deposited (the “Financing Commitment). The Severance payment shall be
payable in the following installments: (a) $25,000 payable by the Close of
Business on the day following the Financing Commitment: (b) the balance payable
in five equal monthly installments of $5,000 with the first monthly installment
being paid on the 15th day of
the month
following the Financial Commitment: (c) and upon receipt of a fully executed
version of this Agreement, the Company shall grant stock options to acquire
1,000,000 shares of uVuMobile’s common stock (each an “Option” and collectively
the “Options”), 500,000 Options shall immediately vest and the remaining 500,000
shall vest over 12 months under such terms and conditions as provided for under
the Company’s stock option plan. The stock options shall be priced on
the date of the grant and be immediately exercisable for 15 months following
the
grant notwithstanding anything to the contrary in the Company’s Stock Incentive
Plan. Provided, however, that if the Company does not receive the
Financing commitment within three (3) months from the date of execution, this
Agreement in its entirety shall be null and void.
2. Release
by Employee: In consideration of the consideration provided in
Paragraph 1 above, Employee agrees that the Prior Agreement is hereby terminated
and shall no longer be of any force or effect. All rights and
obligations owing to Employee under the Prior Agreement are hereby fully and
forever released and discharged by Employee. In addition, Employee
fully, finally and forever releases and discharges uVuMobile, SVT, and each
of their employees, agents, directors, officers, insurers, attorneys,
successors, predecessors and assigns from any and all known claims,
demands, actions, causes of action, rights, obligations, liabilities, debts,
suits, damages, attorneys' fees, costs, expenses, and losses of every kind
and
nature whatsoever, whether in law or in equity, whether in contract, tort,
or
otherwise, including, but not limited to, consequential and incidental damages,
whether now existing, previously existing, or existing in the future, and
including, but not limited to, any claim to recover salary, benefit or other
amounts pursuant to the Prior Agreement and/or pursuant to any benefit plan
or
program referenced in the Prior Agreement.
3. Release
by Company: In consideration of the Xxxxxx’x forfeiture of certain of
her severance obligations and other good and valuable consideration given
herein, Company hereby releases, acquits, withdraws, retracts and forever
discharges any and all claims, manner of actions, causes of action (in law
or in
equity), suits, judgments, debts, liens, contracts, agreements, promises,
liabilities, demands, damages, losses, costs, expenses or disputes, known or
unknown, fixed or contingent, directly or indirectly, personally or in a
representative capacity, against Xxxxxx by reason of any act, omission, matter,
cause or thing whatsoever, from the beginning of time up to and including the
date of execution of this Agreement to the extent that such a release is
permitted as a matter of law. This general release includes, but is
not limited to, all claims, manner of actions, causes of action (in law or
in
equity), suits or requests for attorneys’ fees and/or costs under the Employee
Retirement Income Security Act of 1974; Title VII of the Civil Rights Act of
1964 as amended; the Americans with Disabilities Act; the Rehabilitation Act
of
1973; the Family and Medical Leave Act; the anti-retaliation provisions of
the
Fair Labor Standards Act; the Equal Pay Act; the Pregnancy Discrimination Act;
the Consolidated Omnibus Budget Reconciliation Act (“COBRA”); the Occupational
Safety and Health Act; the National Labor Relations Act; legal
malpractice, 42 U.S.C. §§ 1981 through 1988; any federal,
state or local law regarding retaliation for protected activity or interference
with protected rights; and any state or local law, including but not limited
to
the Georgia AIDS Confidentiality Act; Georgia’s Law Regarding Equal Pay,
O.C.G.A. § 34-5-1 etseq.; the Georgia Equal Employment for Persons
with Disabilities Code; the Georgia Constitution; and all claims
under Georgia public policy or common law including, but not limited to, common
law claims of outrageous conduct, intentional or negligent infliction of
emotional distress, negligent hiring, breach of contract, breach of the covenant
of good faith and fair dealing, promissory estoppel, negligence, wrongful
termination of employment, interference with employment relationship, civil
rights, fraud and deceit and all other claims of any type or nature, including
all claims for damages, wages, compensation, vacation, reinstatement, medical
expenses, punitive damages, and claims for attorneys’ fees. The
Company and Xxxxxx intend that this release shall discharge all claims against
Xxxxxx to the full and maximum extent permitted by law. Company and
Xxxxxx further agree that to the extent that federal law prohibits the waiving
of certain claims as a matter of law, this Agreement is not intended to waive
any such claims.
4. Assignment: Employee
represents and warrants that Employee has not assigned or otherwise transferred
or subrogated any interest in any claim being released hereunder.
5. No
Admission of Liability: This Agreement is made as a
compromise of disputed claim or claims and does not constitute an admission
of
liability or other obligation on the part of any of the Parties.
6. Representation
By Counsel: The execution of this Agreement by each Party is
free and voluntary. The Parties each warrant that they have either
been represented by, or had an opportunity to consult with,
counsel. No promise or inducement to enter into this Agreement,
except as expressly stated herein, is made by or to any Party. This
Agreement contains the entire agreement between the Parties hereto and the
terms
hereof supersede all prior discussion.
7. Modifiability: This
Agreement may not be amended except by a writing signed by the Party against
whom enforcement of such amendment is sought.
8. Authorization: Each
Party has read this Agreement and understands the contents
hereof. Each person executing this Agreement on behalf of an entity
is empowered to do so and thereby binds such entity.
9. Severance: If
any provision of this Agreement is held to be illegal or invalid by a court
of
competent jurisdiction, such provisions shall be severed or deleted and neither
that provision, nor its severance and deletion, will affect the validity of
the
remaining provisions. Any illegal or invalid provision shall be
reconstrued and limited so as to be valid to the fullest extent permitted by
applicable law and shall only be treated as illegal or invalid to the extent
it
is broader than so permitted.
10. Counterparts: This
Agreement may be executed in counterparts and when each Party has signed and
delivered at least one counterpart, each counterpart will be deemed an original
and, when taken together with the other signed counterparts, will constitute
one
agreement which will be binding upon and effective as to all
Parties. Facsimile signatures are acceptable.
11. Specific
Performance; Attorney’s Fees: This Agreement may be
specifically enforced, and injunctive relief may be granted, without the posting
of a bond, to prevent a breach of the Agreement since there is no adequate
remedy at law. The prevailing party in any proceeding brought to
enforce this agreement shall be entitled to an award of its reasonable costs
and
expenses, including, without limitation, attorneys’ fees. Nothing
contained herein shall prevent either party hereto from seeking to enforce
its
rights for a breach of this Agreement.
Executed
on the dates indicated below.
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UVUMOBILE™,
INC.
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XXXXX
XXXXXX
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By:
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/s/
Xxxxxxx X. Xxxxxxxx
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By:
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/s/
Xxxxx Xxxxxx
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Xxxxxxx
X. Xxxxxxxx
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Xxxxx
Xxxxxx
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Its:
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Interim
CEO, President and CFO
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Its:
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Chief
Technology Officer
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DATED:
November 1, 2007
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DATED:
November 4, 2007
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