TERMINATION AGREEMENT AND GENERAL RELEASE
This
TERMINATION AGREEMENT AND GENERAL RELEASE (hereinafter, the “Termination
Agreement”)
is
hereby entered into as of the 8th day of May, 2006, by and between Sputnik,
Inc., a Nevada corporation, its principal Xxxxx XxXxxx and related affiliates
(collectively “Sputnik”),
and
XxXxxxxxXxxxx.xxx, Inc., Public Company Management Corporation, Public Company
Management Services, Inc., and their related principal Xxxxxxx Xxxxx
(collectively “GPT”).
Sputnik and GPT are referred to herein as the “Parties,”
and
each
of them individually as a “Party.”
RECITALS
WHEREAS,
Sputnik and GPT are Parties to that certain Contract for Services dated December
22, 2004, as set forth on Schedule A (the “Agreement”);
WHEREAS,
the Parties seek to terminate the obligations and rights arising under the
Agreement except as specifically set forth herein;
NOW,
THEREFORE, in consideration of the covenants and agreements contained herein,
and for other good and valuable consideration the receipt and sufficiency of
which are hereby acknowledged, the Parties hereto agree as follows:
AGREEMENT
1.
Termination of Agreement.
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(a)
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Sputnik
and GPT agree and acknowledge that, upon execution and delivery of
this
Termination Agreement, the Agreement is hereby terminated in its
entirety
and shall be of no further force or effect and neither of the Parties
shall have any obligation to the other Party under the Agreement,
except
that (x) GPT shall complete all services reasonably required (the
“Services”) under the Agreement for Sputnik’s current filings to clear SEC
and NASD comments and have its common stock cleared for quotation
on the
Over the Counter Bulletin Board (OTCBB); (y) Section 4 (Other Misc.
Costs), Section 6 (Certain Circumstances) and Section 7 (Indemnification)
of the Agreement shall survive and continue in full force and effect
with
respect to the Services notwithstanding this Termination Agreement;
and
(z) Sputnik shall make the required remaining $10,000 payment for
the
Services of GPT under the Agreement, which the parties agree is Sputnik's
registration statement on Form SB-2 being declared effective by the
SEC.
Nothing herein shall expand any rights, duties or obligations of
GPT or
Sputnik under the Agreement. Sputnik and GPT further agree that due
to
this Termination Agreement, GPT shall not be obligated to and shall
not
render compliance services required in Phase VI of the Agreement
and
Sputnik shall not be obligated to make any payment, in cash, stock,
or
otherwise, to GPT for such
services.
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2.
Representations and Warranties of GPT. GPT
represents and warrants to Sputnik as of the date hereof that:
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(a)
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Corporation
Existence and Power. GPT
is a corporation duly incorporated, validly existing and in good
standing
under the laws of the State of Nevada and has all corporate powers
and all
governmental licenses, authorizations, permits, consents and approvals
required to carry on its business as now conducted, and to enter
into and
perform its obligations under this Termination Agreement, except
for those
licenses, authorizations, permits, consents and approvals the absence
of
which would not have a material adverse effect on its ability to
carry out
the transactions contemplated herein.
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(b)
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Corporate
Authorization. The
execution, delivery and performance by GPT of this Termination Agreement
and the consummation of the transactions contemplated hereby, including
the release of claims herewith, is within GPT’s corporate powers and has
been duly authorized by all necessary corporate action on the part
of GPT.
This Termination Agreement constitutes a valid and binding agreement
of
GPT enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors’ rights and
remedies generally.
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(c)
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Non-Contravention. The
execution and delivery by GPT of this Termination Agreement, the
consummation of the transactions contemplated hereby and thereby,
and
compliance by GPT with any of the provisions hereof and thereof will
not
conflict with, constitute a default under or violate (x) any of the
terms,
conditions or provisions of the articles of incorporation or by-laws
of
GPT, (y) any of the terms, conditions or provisions of any document,
agreement or other instrument to which GPT is a party or by which
its
property is bound, or (z) any judgment, writ, injunction, decree,
order or
ruling of any court or governmental authority binding on GPT or its
property.
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3.
Representations
and Warranties of Sputnik. Sputnik
represents and warrants to GPT as of the date hereof that:
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(a)
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Corporation
Existence and Power. Sputnik
and all its corporate affiliates are corporations duly incorporated,
validly existing and in good standing under the laws of the State
of
Nevada and has all corporate powers and all material governmental
licenses, authorizations, permits, consents and approvals required
to
carry on its business as now conducted and to enter into and perform
its
obligations under this Termination Agreement, except for those licenses,
authorizations, permits, consents and approvals the absence of which
would
not have a material adverse effect on its ability to carry out the
transactions contemplated herein.
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(b)
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Corporation
Authorization. The
execution, delivery and performance by Sputnik and all its corporate
affiliates of this Termination Agreement and the consummation of
the
transactions contemplated hereby, including the release of claims
herewith, is within the corporate powers of Sputnik and all its corporate
affiliates and have been duly authorized by all necessary corporate
action
on the part of Sputnik and all its corporate affiliates. This Termination
Agreement constitutes a valid and binding agreement of Sputnik and
all its
corporate affiliates, enforceable in accordance with its terms, subject
to
applicable bankruptcy, insolvency and similar laws affecting creditors’
rights and remedies generally.
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(c)
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Non-Contravention. The
execution and delivery by Sputnik and all its corporate affiliates
of this
Termination Agreement and the consummation of the transactions
contemplated hereby, and compliance by Sputnik and all its corporate
affiliates with any of the provisions hereof will not conflict with,
constitute a default under or violate (x) any of the terms, conditions
or
provisions of its articles of incorporation or by-laws, (y) any of
the
terms, conditions or provisions of any document, agreement or other
instrument to which Sputnik and all its corporate affiliates is a
party or
by which its property is bound, or (z) any judgment, writ, injunction,
decree, order or ruling of any court or governmental authority binding
on
it or its property.
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4.
Reliance on Independent Legal Advice. Each
of the Parties further represent and warrant to each other, as of the date
hereof:
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(a)
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That
it has received advice from its own, independent legal counsel prior
to
its execution of this Termination Agreement;
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(b)
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That
the legal nature and effect of this Termination Agreement has been
explained to it by its counsel;
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(c)
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That
it fully understands the terms and provisions of this Termination
Agreement and the nature and effect hereof;
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(d)
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That
it has not relied and is not relying upon any representation or statement
of any person not contained in this Termination Agreement or on the
advice
of any counsel other than its own counsel;
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(e)
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That
it has carefully read this Termination Agreement, knows the contents
hereof, and is executing the same freely and voluntarily; and
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(f)
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That
it is aware that it or its attorneys may hereafter discover facts
different from or in addition to the facts that it now knows or believes
to be true with respect to the subject matter of this Termination
Agreement or the other Party hereto, but that it is its intention
to fully
and finally release each of its respective releasees to the full
extent of
the releases contained in this Termination Agreement, and to otherwise
agree to the other terms and conditions of this Termination Agreement.
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6. Global
Release of All Claims Against GPT, and related principal Xxxxxxx Xxxxx and
any
parent, subsidiary or affiliate corporation, partnership, limited liability
company, proprietorship, trust, or other form of business entity related
directly or indirectly to the foregoing, and each of their respective heirs,
administrators, executors, beneficiaries, legatees, devisees, trusts, trustees,
insurers, attorneys, experts, consultants, partners, joint venturers, members,
officers, directors, shareholders, employees, contractors, alter egos, agents,
representatives, predecessors, successors and assigns by Sputnik, Inc., a Nevada
corporation, its principal Xxxxx XxXxxx and related affiliates for themselves
and for any parent, subsidiary or affiliate corporation, partnership, limited
liability company, proprietorship, trust, or other form of business entity
related directly or indirectly to any of the foregoing, and for each of their
respective heirs, administrators, executors, beneficiaries, legatees, devisees,
trusts, trustees, insurers, attorneys, experts, consultants, partners, joint
venturers, members, officers, directors, shareholders, employees, contractors,
alter egos, agents, representatives, predecessors, successors and
assigns. Effective
as of the date hereof, Sputnik, Inc., a Nevada corporation, its principal Xxxxx
XxXxxx and related affiliates, for themselves, and for any parent, subsidiary
or
affiliate corporation, partnership, limited liability company, proprietorship,
trust, or other form of business entity related directly or indirectly to any
of
the foregoing, and for each of their respective heirs, administrators,
executors, beneficiaries, legatees, devisees, trusts, trustees, insurers,
attorneys, experts, consultants, partners, joint venturers, members, officers,
directors, shareholders, employees, contractors, alter egos, agents,
representatives, predecessors, successors and assigns (collectively the
“Sputnik
Releasors”),
do
hereby release, acquit, and forever discharge GPT and related principal Xxxxxxx
and any parent, subsidiary or affiliate corporation, partnership, limited
liability company, proprietorship, trust, or other form of business entity
related directly or indirectly to the foregoing, and each of their respective
heirs, administrators, executors, beneficiaries, legatees, devisees, trusts,
trustees, insurers, attorneys, experts, consultants, partners, joint venturers,
members, officers, directors, shareholders, employees, contractors, alter egos,
agents, representatives, predecessors, successors and assigns (collectively
the
“GPT
Releasees”)
of and
from any and all claims, actions, causes of action, judgments, awards, costs,
expenses, attorneys’ fees, debts, obligations, promises, representations,
warranties, demands, acts, omissions, rights and liabilities, of any kind and
nature whatsoever, including but not limited to those at law, in equity, in
tort, in contract, whether or not asserted to date, and whether known or
unknown, suspected or unsuspected, which have arisen, are arising, or may in
the
future arise, directly or indirectly, from or in connection with the Agreement,
or any other matter or transaction of any kind or nature undertaken thereunder
from the beginning of time until the date hereof (the matters referred to above
being hereinafter referred to as the “Sputnik
Released Claims”);
provided,
however,
that
nothing in this Release shall release GPT from any of its obligations under
this
Termination Agreement or under the Agreement solely as specified in paragraph
1
above.
7. Global
Release of All Claims Against Sputnik, Inc., a Nevada corporation, its principal
Xxxxx XxXxxx and related affiliates and any parent, subsidiary or affiliate
corporation, partnership, limited liability company, proprietorship, trust,
or
other form of business entity related directly or indirectly to any of the
foregoing, and each of their respective heirs, administrators, executors,
beneficiaries, legatees, devisees, trusts, trustees, insurers, attorneys,
experts, consultants, partners, joint venturers, members, officers, directors,
shareholders, employees, contractors, alter egos, agents, representatives,
predecessors, successors and assigns by GPT, and related principal Xxxxxxx
Xxxxx, for themselves and for and any parent, subsidiary or affiliate
corporation, partnership, limited liability company, proprietorship, trust,
or
other form of business entity related directly or indirectly to the foregoing,
and for each of their respective heirs, administrators, executors,
beneficiaries, legatees, devisees, trusts, trustees, insurers, attorneys,
experts, consultants, partners, joint venturers, members, officers, directors,
shareholders, employees, contractors, alter egos, agents, representatives,
predecessors, successors and assigns. Effective
as of the date hereof, GPT, and related principal Xxxxxxx Xxxxx, for themselves,
and for any parent, subsidiary or affiliate corporation, partnership, limited
liability company, proprietorship, trust, or other form of business entity
related directly or indirectly to any of the foregoing, and for each of their
respective heirs, administrators, executors, beneficiaries, legatees, devisees,
trusts, trustees, insurers, attorneys, experts, consultants, partners, joint
venturers, members, officers, directors, shareholders, employees, contractors,
alter egos, agents, representatives, predecessors, successors and assigns
(collectively the “GPT
Releasors”),
do
hereby release, acquit, and forever discharge Sputnik, Inc., a Nevada
corporation, its principal Xxxxx XxXxxx and related affiliates, and any parent,
subsidiary or affiliate corporation, partnership, limited liability company,
proprietorship, trust, or other form of business entity related directly or
indirectly to any of the foregoing, and each of their respective heirs,
administrators, executors, beneficiaries, legatees, devisees, trusts, trustees,
insurers, attorneys, experts, consultants, partners, joint venturers, members,
officers, directors, shareholders, employees, contractors, alter egos, agents,
representatives, predecessors, successors and assigns (collectively the
“Sputnik
Releasees”)
of and
from any and all claims, actions, causes of action, judgments, awards, costs,
expenses, attorneys’ fees, debts, obligations, promises, representations,
warranties, demands, acts, omissions, rights and liabilities, of any kind and
nature whatsoever, including but not limited to those at law, in equity, in
tort, in contract, whether or not asserted to date, and whether known or
unknown, suspected or unsuspected, which have arisen, are arising, or may in
the
future arise, directly or indirectly, from or in connection with the Agreement,
or any other matter or transaction of any kind or nature undertaken thereunder
from the beginning of time until the date hereof (the matters referred to above
being hereinafter referred to as the “GPT
Released Claims”);
provided,
however,
that
nothing in this Release shall release Sputnik from any of its obligations under
this Termination Agreement or under the Agreement solely as specified in
paragraph 1 above.
8. Covenant
Not to Xxx by Sputnik and Sputnik Releasors.
Except for the enforcement of this Termination Agreement or any rights preserved
under this Termination Agreement, Sputnik and the Sputnik Releasors hereby
covenant that they will not, based on any Sputnik Released Claim, xxx or bring
any claim or action against GPT or any GPT Releasee. This Covenant Not to Xxx
shall be a complete defense to any such claim or suit by Sputnik or any such
Sputnik Releasor.
9. Covenant
Not to Xxx by GPT and GPT Releasors. Except
for the enforcement of this Termination Agreement or any rights preserved under
this Termination Agreement, GPT and the GPT Releasors hereby covenant that
they
will not, based on any GPT Released Claim, xxx or bring any claim or action
against Sputnik or any Sputnik Releasee. This Covenant Not to Xxx shall be
a
complete defense to any such claim or suit by GPT or any such GPT Releasor.
10. Governing
Law. This
Termination Agreement shall be governed by the laws of the State of Nevada
as
such laws are applied to agreements between Nevada residents entered into and
to
be performed entirely within the State of Nevada.
11. No
Admission of Fault. This
Termination Agreement is a compromise settlement of disputed claims and may
not
be deemed or used as an admission of liability or fault on the part of any
Party
hereto.
12. Joint
Drafting. This
Termination Agreement shall be construed as jointly drafted by the Parties,
and
the rule construing ambiguities against the drafter shall not apply.
13. Integration
Clause. As
of the date hereof, this Termination Agreement and any further documents
executed to implement the transactions contemplated hereby, shall constitute
the
full and entire understanding and agreement between the Parties with respect
to
the subject matter hereof and shall supersede all prior conversations,
negotiations, understandings and agreements between the Parties with respect
to
the subject matter hereof.
14. Further
Assurances. From
time to time after the date hereof, the Parties shall take such other actions
and execute and deliver to any other Party such further documents as may be
reasonably requested by any other Party in order to assure and confirm unto
such
Party (a) the rights created hereby or intended now or hereafter so to be
created by this Termination Agreement; or (b) the validity of any assignment
documents or other documents of conveyance to be delivered at the execution
of
this Termination Agreement.
15. Arbitration. All
disputes and controversies of every kind and nature between the parties hereto
arising out of or in connection with this Termination Agreement as to the
construction, validity, interpretation or meaning, performance, non-performance,
enforcement, operation or breach shall be submitted to arbitration in accordance
with the provisions of the American Arbitration Code of Arbitration Procedures.
16. Each
Party to Bear Own Costs and Attorneys’ Fees. Each
Party shall bear its own costs, expenses, and attorneys’ fees in connection with
the negotiation, preparation, execution and delivery of this Termination
Agreement and the transactions contemplated herein.
17. Amendment
Only in Writing. This
Termination Agreement may be modified only by a written agreement executed
by
the Parties affected by the modification.
18. Severability. The
Parties hereto agree that if any provision of this Termination Agreement is
held
by a court of competent jurisdiction to be invalid, void, or unenforceable,
such
provision shall be valid and enforceable to the maximum degree permitted and
the
remaining provisions shall nevertheless continue in full force without being
impaired or invalidated in any way.
19. Survival. The
covenants, agreements, representations and warranties contained in this
Termination Agreement shall be continuing and shall survive the execution and
delivery of this Termination Agreement.
20. Legal
Proceedings. Each
Party represents, warrants, and agrees that no legal proceeding or other action
has been filed in any forum arising out of, from, or in connection with any
disputes or claims arising out of or related to the Agreement.
21. No
Assignment of Claims. Each
Party represents and warrants to the other that it has not hypothecated or
otherwise encumbered or assigned any claim or cause of action arising out of,
related to or in connection with the claims alleged or referred to in this
Termination Agreement.
22. Public
Announcements and No Derogatory Statements . The
Parties will cooperate in developing a public announcement of the matters
described herein; each Party hereby agrees not to release to the public any
information relating to the matters described herein without the prior approval
of the other Party; provided,
however,
that
nothing herein shall limit either Party’s right to make such disclosure as it
reasonably believes is necessary to comply with disclosure obligations under
applicable law or listing agreements. Further, each Party agrees that it will
refrain from making derogatory statements concerning the other
Parties.
23. Counterparts. This
Termination Agreement may be executed in counterparts, each of which shall
be
deemed a duplicate original, but all of which together shall constitute one
and
the same instrument.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed on their behalf as of the date first written above.
Sputnik,
Inc., a Nevada corporation
By: /s/
Xxxxx
XxXxxx
Xxxxx
XxXxxx, President
/s/ Xxxxx
XxXxxx
Xxxxx
XxXxxx, individually
XxXxxxxxXxxxx.xxx,
Inc., Public Company Management Corporation, Public Company Management Services,
Inc.
By:
/s/ Xxxxxxx
Xxxxx
Xxxxxxx
Xxxxx, President
/s/ Xxxxxxx
Xxxxx
Xxxxxxx
Xxxxx, individually
