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EXHIBIT 10.34
SETTLEMENT AGREEMENT AND GENERAL RELEASE
This Settlement Agreement and General Release (this "Agreement") is made
by and between eSat, Inc., a Nevada corporation (the "Company"), and Xxxxx
Xxxxxxx ("Xxxxxxx") as of the date executed by both parties (the "Effective
Date").
WHEREAS, Xxxxxxx and the Company are parties to that certain Resignation
Agreement dated March 22, 1999 (the "Resignation Agreement");
WHEREAS, the parties desire to enter into this Agreement to resolve
certain disputes, including matters existing under the Resignation Agreement;
WHEREAS, Xxxxxxx claims the Company currently owes to Xxxxxxx the sum of
$290,000 (the "Resignation Payments") pursuant to the terms of the Resignation
Agreement.
NOW, THEREFORE, in consideration of the mutual promises made herein, the
parties hereto agree as follows;
1. Consideration. Upon the execution of this Agreement, the Company
agrees to pay to Xxxxxxx, and Xxxxxxx agrees to accept from the Company, in
full and complete satisfaction of the Resignation Payments, the sum of $90,000.
Upon payment of the $90,000 the Company shall have no continuing payment
obligations to Xxxxxxx under the Resignation Agreement.
2. Registration Rights. In consideration for entering into this
Agreement, the Company agrees to grant, and hereby does grant, to Xxxxxxx
customary nontransferable piggyback registration rights with normal underwriter
outs on all Company registrations following the Company's current registration
statement on Form SB-2, with respect to the 1,500,000 shares of the Company's
common stock issuable to Xxxxxxx upon exercise of his stock options (the "eSat
Shares"). The foregoing piggyback registration rights shall be set forth in a
Registration Rights Agreement between Xxxxxxx and the Company.
3. Release of URL. Xxxxxxx hereby agrees to transfer to the Company all
right, title and interest he may have in the Internet URL "XxxxxxXxxxxXxxx.xxx"
and all related URL's, trademarks and copyrights and to execute any documents
requested by the Company reasonably required to effect such transfer.
4. Reimbursement of Penalties. The Company acknowledges and understands
that Xxxxxxx has sold shares of the Company's common stock to Generation
Capital. The Company hereby agrees that it will not delay the transfer of any
shares sold by Xxxxxxx and hereby agrees to reimburse Xxxxxxx for, or pay on
his behalf, any penalties incurred by Xxxxxxx as a result of the Company's
delaying such transfer.
5. Non-Admission of Liability. This Agreement shall not in any way be
construed as an admission by either party that they have acted wrongfully with
respect to the other or any other person, or that either party has any rights
whatsoever against the other, and each party specifically disclaims any
liability to or wrongful acts against the other or any other person, on the
part of themselves, their employees or agents.
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6. Mutual Release of Claims. In consideration of this Agreement, except
as to the rights and obligations arising under this Agreement, each party
hereby fully releases, discharges and acquits the other party, and such party's
post and present representatives, agents, employees, partners, officers,
directors, affiliates, successors and assigns from any and all past, present,
and future claims, debts, promises, acts, demands, causes of action,
obligations, rights and/or liabilities of every kind and nature whatsoever,
whether known or unknown, suspected or unsuspected, including but not limited
to, those which arise out of or are in anyway connected with or related to the
Resignation Agreement.
7. Civil Code Section 1542. Xxxxxxx and the Company each represents that
he or it is not aware of any claims against the other party other than the
claims that are released by this Agreement. Each party acknowledges that he or
it has been advised by legal counsel and is familiar with the provisions of
California Civil Code Section 1542, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOWN OR SUSPECT
TO EXIST IN HIS FAVOR AT THE TIME OR EXECUTING
THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.
BEING AWARE OF SAID CODE SECTION, EACH AGREES TO EXPRESSLY WAIVE ANY RIGHTS
HE OR IT MAY HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER STATUTE OR COMMON LAW
PRINCIPLES OF SIMILAR AFFECT.
Xxxxxxx'x Company's
Initials ______ Initials [illegible]
8. Confidentiality. Each party agrees to use his or its best efforts to
maintain in confidence the existence of this Agreement, the contents and terms
of this Agreement and the consideration for this Agreement (hereinafter
collectively referred to as "Settlement Information"), except as disclosure may
be required by federal securities laws. Each party agrees to take every
reasonable precaution to prevent disclosure of any Settlement Information to
third parties, and agrees that there will be no publicity, directly or
indirectly, concerning any Settlement Information, except as may be required by
federal securities laws. Each party agrees to take every precaution to
disclose Settlement Information only to those attorneys, accountants,
governmental entities, judicial officers and family members who have a
reasonable need to know of such Settlement Information.
9. No Harmful Conduct. Each party agrees that it will not act in any
manner that might damage the business, relationships, prospects, reputation or
operations of the other party, including but not limited to making any
disparaging remarks, comments or publications regarding the other party. In
this regard, Company acknowledges and agrees that it will review prior
disclosures or written comments that it has made regarding Xxxxxxx in documents
filed with the Securities and Exchange Commission and will within a reasonable
time retract any disparaging statements or amend the applicable filings to
remove such disparaging statements.
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10. Costs. The parties hereto shall each bear their own costs, expert
fees, attorneys' fees and other fees incurred in connection with this Agreement.
11. Arbitration. The parties hereto agree that any and all disputes
arising out of the terms of this Agreement, their interpretation, and any of the
matters herein released, shall be subject to binding arbitration in Orange
County before the American Arbitration Association, or by an arbitrator to be
mutually agreed upon. The parties hereto agree that the prevailing party in any
arbitration shall be entitled to injunctive relief in any court of competent
jurisdiction to enforce the arbitration award. The parties hereto agree that the
prevailing party in any arbitration shall be awarded its reasonable attorney's
fees and costs. The award of the arbitrator shall be issued and transmitted to
the parties, and judgement on the award may be entered in any court having
jurisdiction thereunder.
12. Authority. Each party represents and warrants that he or it has the
capacity to act on his or its own behalf and on behalf of all who might claim
through such party to bind them to the terms and conditions of this Agreement.
Each party warrants and represents that there are no liens or claims of lien or
assignments in law or equity or otherwise of or against any of the claims or
causes of action released herein.
13. Representation by Attorney; No Representations. Each party represents
that he or it has consulted, or had adequate opportunity to consult, with an
attorney, and has carefully read and understands the scope and effect of the
provisions of this Agreement. Neither party has relied upon any representations
or statements made by the other party hereto which are not specifically set
forth in this Agreement.
14. Severability. In the event that any provision hereof becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement shall continue in full force and effect without said
provision.
15. Entire Agreement. This Agreement represents the entire agreement and
understanding between Company and Xxxxxxx concerning the terms hereof, and
supersedes and replaces any and all prior agreements and understandings between
the parties.
16. No Oral Modification. This Agreement may only be amended in writing
signed by the parties hereto.
17. Governing Law. This Agreement shall be governed by the laws of the
State of California without reference to its conflict/choice of law rules.
18. Counterparts. This Agreement may be executed in counterparts,
including electronically transmitted counterparts, and each counterpart shall
have the same force and effect as an original and shall constitute an
effective, binding agreement on the part of each of the undersigned.
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IN WITNESS WHEREOF, Company and Xxxxxxx have executed this Agreement on
the respective dates set forth below.
eSAT, INC. Dated: February 23, 2000
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
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Title: Chief Executive Officer
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XXXXXXX Dated: ____________, 2000
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Xxxxx Xxxxxxx
