Contract
Exhibit
10.1
AGREEMENT
AND RELEASE, dated June 25, 2006 (this “Agreement”), between Novastar Resources
Ltd., a Nevada corporation (“Novastar”), and Xxxxx XxXxxxx, an individual
(“DiRicco”).
BACKGROUND
DiRicco
claims that pursuant to a verbal arrangement he had with Novastar relating
to
providing investor relations services for a one year period, he is entitled
to
certain equity compensation, namely, 500,000 warrants to purchase Novastar
common stock with an exercise price of $0.15 per share. Novastar disputes
this
matter, including the amount of claimed compensation for any services provided
to Novastar. Novastar and DiRicco desire to resolve the respective claims
that
each party has or may have against the other upon the terms and conditions
set
forth in this Agreement without admitting liability therefore, in order to
resolve all issues and to avoid the uncertainty, expense and burden of
litigation.
NOW,
THEREFORE, in consideration of the promises, representations, warranties
and
covenants contained herein, and intending to be legally bound hereby, the
parties agree as follows:
1. RELEASE
BY DIRICCO
For the
consideration and mutual promises specified herein and other good and valuable
consideration the receipt and sufficiency of which is hereby acknowledged,
DiRicco on behalf of himself, his affiliates, agents, employees, assigns,
representatives, heirs, and any person or entity that claims any right or
interest through or on behalf of any of the foregoing (each a “Releasor”) hereby
releases, forgives and forever discharges Novastar, Thorium Power, Inc.,
their
respective subsidiaries, affiliates, successors, predecessors, or agents,
and
their present or former employees, officers, directors, attorneys and other
agents (collectively, the “Novastar Representatives”) from any and all
liabilities, obligations, claims, actions, covenants, contracts, agreements,
promises, damages and demands whatsoever, whether known or unknown, suspected
or
unsuspected, matured or unmatured, both at law (including federal and state
securities laws) and in equity, which Releasor now has or has ever had against
Novastar or any Novastar Representatives arising contemporaneously with or
prior
to the date of this Agreement on account of, arising out of, or in any way
related to any services (including, without limitation, any services relating
to
investor relations) provided to Novastar or any Novastar Representative by
DiRicco or any Releasor, any compensation or other benefits payable therefor
by
a Novastar Representative, or any other matter relating thereto. For the
consideration and mutual promises specified herein and other good and valuable
consideration the receipt and sufficiency of which is hereby acknowledged,
DiRicco agrees for himself and anyone claiming for or through him or any
third
party, to waive, release, promise and agree not to bring or pursue any judicial,
quasi-judicial or administrative action against any Novastar Representative
for
any reason whatsoever arising out of any claim released by this Agreement.
DiRicco further acknowledges and agrees that he has not already filed or
otherwise commenced any such action and that he has not assigned, sold or
given
any of the rights he is releasing to any person or entity.
2. OBLIGATIONS
OF NOVASTAR. In
consideration for DiRicco signing this Agreement, Novastar shall promptly,
and
in any event within ten business days, issue to DiRicco 182,291 shares of
Novastar’s Common Stock (the “Shares”). Novastar shall use commercially
reasonable efforts to include the Shares in the first registration statement
filed by Novastar with the Securities and Exchange Commission hereafter,
other
than a registration statement on form S-4 or S-8 or any other form that is
not
available for the registration of the Shares. This obligation of Novastar
shall
be subject to any existing conflicting contractual obligations of Novastar
that
may limit the ability of Novastar to register the Shares.
3. REPRESENTATIONS
AND WARRANTIES.
(a)
Representations
and Warranties of DiRicco. DiRicco hereby represents and warrants that he
has
the requisite capacity to enter into this Agreement and to carry out his
obligations hereunder and that all the statements made by him in this Agreement
are true and accurate. This Agreement has been duly executed and delivered
by
DiRicco and constitutes a valid and binding obligation of DiRicco enforceable
in
accordance with its terms and conditions.
(b)
Representations
and Warranties of Novastar. Novastar represents and warrants that it has
the
requisite power to enter into this Agreement and to carry out its obligations
hereunder and that the terms of this Agreement have been fully disclosed
to the
Board of Directors (or similar authority) of Novastar, and that the requisite
approvals have been obtained, prior to its execution. This Agreement has
been
duly executed and delivered by Novastar and constitutes a valid and binding
obligation of Novastar enforceable in accordance with its terms and
conditions.
4. NON-DISPARAGEMENT.
DiRicco
shall not in any way, directly or indirectly, disparage any Novastar
Representative and, without limiting the generality of the foregoing, will
not
make any public or private written or verbal statements regarding any Novastar
Representative that are negative or otherwise disparaging of any such Novastar
Representative.
5. MISCELLANEOUS.
(a)
Entire
Agreement. This Agreement together with the exhibits and schedules hereto,
if
any, constitute the entire agreement among the parties and supersede any
and all
prior agreements, discussions, representations and warranties among the parties
with respect to the matters set forth herein. The parties have not relied
upon
any statements or representations made by any party outside the content of
this
Agreement.
(b)
Choice
of
Law. This Agreement shall be governed by and enforceable in accordance with
the
laws of the Commonwealth of Virginia, without giving effect to the conflict
of
law principals thereof.
(c)
Counterparts;
Facsimile Execution. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original but all of
which
together shall constitute but one agreement. Facsimile execution and delivery
of
this Agreement shall be legal, valid and binding for all purposes.
(d)
Severability.
If any provision of this Agreement is determined to be unlawful or otherwise
unenforceable, the remaining provisions of this Agreement shall nevertheless
continue in full force and effect.
(e)
Parties
in Interest; Assignment. This Agreement is binding upon the parties and their
respective successors, heirs, legal representatives and permitted
assigns.
(f)
Construction.
This Agreement shall not be construed against the party preparing it, but
shall
be construed as if the parties collectively prepared it and any uncertainty
or
ambiguity shall not be interpreted against any party.
(g)
Modifications;
Waiver. This Agreement may not be modified orally. No breach of any provision
hereof may be waived unless in writing. Waiver of any breach shall not be
deemed
to be a waiver of any other breach of the same or of any other provision
hereof.
All modifications to this Agreement must be in writing and signed by the
parties
to be charged.
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(h)
No
Assignments. DiRicco hereby represents and warrants that there has been no
assignment or transfer whatsoever of any of the claims released herein. DiRicco
agrees to defend and indemnify Novastar against any claim based upon, arising
out of or in connection with any such assignment or transfer of a claim released
hereunder.
(i)
Advice
of
Counsel. Each party to this Agreement has had the opportunity to discuss
the
matter with legal counsel, and enters into this Agreement only after such
consultation.
(j)
Waiver
Of
Jury Trial.
EACH
PARTY EXPRESSLY, IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY
IN
ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS SETTLEMENT AGREEMENT AND FOR
ANY
COUNTERCLAIM THEREIN.
(k) Notices.
All
notices, requests, demands, claims, and other communications hereunder will
be
in writing. Any notice, request, demand, claim, or other communication hereunder
shall be deemed duly given if (and then two business days after) it is sent
by
registered or certified mail, return receipt requested, postage prepaid,
and
addressed to the intended recipient as set forth on the signature page hereto.
Any party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above using
any
other means (including personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no such notice,
request, demand, claim, or other communication shall be deemed to have been
duly
given unless and until it actually is received by the intended recipient.
Any
party may change the address to which notices, requests, demands, claims,
and
other communications hereunder are to be delivered by giving the other parties
notice in the manner herein set forth.
(l)
No
Admission of Liability or Wrongdoing. This Agreement and the negotiations
and
discussions leading up to this Agreement effect the settlement of claims
which
are denied and contested, and do not constitute, nor shall they be construed
as,
an admission of liability by the parties. This Agreement is made solely for
the
purpose of avoiding the burden and expense of litigation which would be imposed
on the parties if the disputes between them remained unsettled. This Agreement
does not constitute an admission by any of the parties hereto that they have
engaged in any unlawful act. Each of the parties hereto expressly deny that
they
have engaged in any unlawful act and deny liability for all claims any other
party had, has, or may have against them.
[Signature
Page Follows]
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date
first
above written.
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XXXXX
X. XXXXXXX
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Address:
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0000
Xxxxxx Xxxxx
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Xxxxxxx
Xxxx, XX 00000
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/s/
Xxxxx X.
XxXxxxx
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Xxxxx
X. XxXxxxx
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Address:
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000
Xxxxxxxxxx Xxxxx, Xxxxx 000
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XxXxxx,
XX 00000
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By:/s/
Seth
Grae
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Seth
Grae
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President
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