EXHIBIT 10.1
CONFIDENTIAL SETTLEMENT AGREEMENT AND MUTUAL RELEASE
ATSI Communications, Inc., a Nevada corporation ("ATSI"), formerly a
Delaware corporation, and Xxxxxx Xxxxxxx ("Xxxxxxx") (collectively, the
"Parties"), hereby enter into this Confidential Settlement Agreement and Mutual
Release (the "Settlement Agreement").
RECITALS
WHEREAS, the Parties are agreed that certain relationships between and
among the Parties should be ended and any and all claims or liabilities between
and among them be held for naught; and
WHEREAS, the Parties have previously executed agreements for consulting
services; and WHEREAS, Kauachi had provided such services; and WHEREAS, ATSI
failed to pay Kauachi; and
WHEREAS, all Parties wish to reach a full and final settlement of all
matters and all causes and potential causes of action arising from any of their
relationships with each other, including any and all disputes or rights or
potential rights between or among the Parties arising from any transactions
between or among them prior to the execution date of this Agreement, and now
desire to set forth their agreement in writing.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, and further good and valuable
consideration, the Parties hereby agree and covenant as follows:
1. PAYMENT. As consideration for a total of $51,034 owed up to and
including July 31, 2005, ATSI shall deliver to Kauachi a total of 50,000 shares
of ATSI's common stock post-split as follows: 50,000 subject to Rule 144 (the
"Payment"). This Payment is subject to the approval of the Board of Directors
whose approval shall be sought as soon as practicable.
2. RELEASE BY KAUACHI. In consideration of the receipt of the Payment,
Kauachi, with the intention of binding itself, and its officers, directors,
shareholder, employees, representatives, attorneys-in-fact, predecessors,
successors and assigns, (the "Kauachi Releasing Parties") expressly releases,
acquits, and discharges ATSI and its respective officers, directors,
shareholders, representatives, attorneys, successors, and assigns (the "ATSI
Released Parties") from all claims, demands, causes of action and potential
claims or causes of action, of whatever nature that the Kauachi Releasing
Parties may have or claim to have against the ATSI Released Parties arising from
or connected with, directly or indirectly, any and all claims the Kauachi
Releasing Parties may have or claim to have against the ATSI Released Parties
accruing before the execution date of this Release. Notwithstanding the
foregoing paragraph, the ATSI Released Parties are not released from the
obligations or indemnities set forth in this Settlement Agreement.
2. RELEASE BY ATSI. In further consideration of the foregoing, ATSI,
with the intention of binding itself and its respective officers, directors,
shareholders, employees, representatives, attorneys-in-fact, predecessors,
successors, assigns, and subsidiaries (the "ATSI Releasing Parties") expressly
release, acquit, and discharge Kauachi and its officers, directors,
shareholders, representatives, attorneys, successors, and assigns, (the "Kauachi
Released Parties") from all claims, demands, and causes of action or potential
claims and causes of action of whatever nature that the ATSI Releasing Parties
may have or claim to have against the Kauachi Released Parties arising from or
connected with, directly or indirectly, any relationship or transaction between
or among the Parties, as well as any and all other or potential claims that the
ATSI Releasing Parties may have or claim to have against the Kauachi Released
Parties accruing before the execution date of this Settlement Agreement.
Notwithstanding the foregoing paragraph, the Kauachi Released Parties are not
released from the obligations of this Settlement Agreement.
CONFIDENTIAL MUTUAL RELEASE Page 2
3. NO ADMISSION OF LIABILITY. This settlement and the Payment made
hereunder do not constitute an admission of liability by any Party hereto, and
liability is expressly denied by all Parties.
4. CONFIDENTIALITY. The Parties agree that they will not disclose the
terms of this Settlement Agreement, unless necessary to enforce the terms of
this Settlement Agreement or after receipt of judicial process or lawful
discovery procedures. In the event that any Party is served with notice to
disclose such information by subpoena or otherwise, that Party agrees promptly
to notify the other Parties in writing of such notice. The Party or Parties so
notified in writing shall thereafter undertake the cost and obligation to
maintain the propriety and confidentiality of the terms of such information.
5. NON-DISPARAGEMENT. The Parties agree to use reasonable effort not to
disparage or interfere with any other Party's agreements or prospective
agreements with any third party. 6. ENTIRE AGREEMENT. This Settlement Agreement
contains the entire understanding and agreement of the Parties hereto with
respect to the subject matters herein, and may not be amended or modified in any
respect other than in a writing which specifically refers to this Settlement
Agreement and which is signed by all of the Parties hereto. 7. GOVERNING LAW.
This Settlement Agreement was negotiated in, and shall be governed by and
construed according to, the laws of the State of Texas. In the event that any
provision herein is deemed not enforceable, the remainder of this Settlement
Agreement will remain unaffected. Venue for any action relating to the
provisions of this Agreement shall be in Bexar County, Texas.
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8. NO ASSIGNMENT. By signing this Settlement Agreement, each of the
Parties represents and warrants that it has not assigned or subrogated any of
its claims or potential claims, in whole or in part, to any third party.
9. MODIFICATION AND ATTORNEY'S FEES. This Settlement Agreement shall
not be suspended, amended, or modified in any manner except by an instrument in
writing signed by all Parties to be bound. Should it become necessary to enforce
this Settlement Agreement, or any portion of it, or to declare the effect of any
provision of this Settlement Agreement, the prevailing Party shall be entitled
to recover costs incurred including reasonable attorney's fees.
10. INFORMED CONSENT. The Parties acknowledge that they have had the
opportunity to consult with their respective attorneys regarding the meaning and
effect of this Settlement Agreement, and that none of the Parties has made any
representations, written or oral, upon which another Party relies in executing
this Settlement Agreement. 11. COUNTERPARTS. This Settlement Agreement may be
executed in multiple counterparts. A set of counterpart copies which
collectively contains the signature and acknowledgment of all Parties shall
constitute an original.
EXECUTED by an authorized representative of ATSI Communications, Inc.,
a Nevada corporation, on December 2, 2005.
ATSI COMMUNICATIONS, INC.
By: /S/ Xxxxxx X. Xxxxx
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Its: President & CEO
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Date: December 2, 2005
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EXECUTED by Xxxxxx Xxxxxxx on the date written below.
XXXXXX XXXXXXX
By: /s/ Xxxxxx Xxxxxxx
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Its:
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Date: December 2, 2005
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