SETTLEMENT AGREEMENT AND MUTUAL RELEASE
SETTLEMENT
AGREEMENT AND MUTUAL RELEASE
THIS
SETTLEMENT AGREEMENT AND MUTUAL RELEASE (this “Agreement”) is made
and entered into as of February 3, 2010 (the “Effective Date”) by
and between ONCALL SUPERIOR MANAGEMENT, a Philippines Corporation (“OSM”) and SM
eVENTURES, a Philippines Corporation (“SME” and together
with OSM, “OSM/SME” or “Defendants”), and
LIVEDEAL, INC., a Nevada corporation, f/k/a YP Corp. (“LiveDeal”) and TELCO
BILLING, INC., a Nevada corporation (“Telco” and together
with LiveDeal, “Plaintiffs”). For
purposes of this Agreement, Plaintiffs and Defendants are sometimes individually
referred to as a “Party” and sometimes
collectively referred to as the “Parties.”
Background
A. Telco
and OSM previously entered into that certain Memorandum of Agreement dated as of
November 1, 2007 (the “OSM Contract”),
pursuant to which OSM agreed to provide inbound telemarketing services,
including customer service and quality assurance and/or control services,
through its telephone representatives, to Plaintiffs’ customers residing in the
United States.
B. Telco
and SME previously entered into that certain Marketing Agreement dated as of
November 13, 2006 (the “SME Contract” and
together with the OSM Contract, the “Contracts”), pursuant
to which SME agreed that its sales representatives would make outbound
telemarketing sales to business consumers of Plaintiffs residing in the United
States.
C. Plaintiffs
and Defendants are currently parties to a civil action pending in the Federal
Court, District of Arizona, entitled LiveDeal et. al. v. Oncall Superior
Management, xx.xx, United States District Court Case No. CV
09-976-PHX-DGC concerning whether Plaintiffs or Defendants breached the
Contracts and what damages were incurred (the “Litigation”).
D. In
order to avoid the uncertainties, inconvenience, and expense of further
litigation, the Parties now desire to compromise and settle all claims, causes
of action, and issues in dispute between them from the beginning of time through
and including the date hereof all on the terms set forth herein.
E. Each
of the Parties hereto declares that the terms of this Agreement have been read
and understood and that this Agreement is entered into voluntarily, freely, and
without coercion of any sort, and is accepted for the purpose of making a
complete, final, and binding settlement of any and all claims described herein
as well as those omitted through oversight or error, with the exception of only
those claims specifically enumerated and excluded herein.
In consideration of the acts, payments,
covenants and mutual agreements herein described and agreed to be performed the
Parties agree as follows:
Agreement
1. Incorporation
of Background. The statements set forth in paragraphs A
through E above are acknowledged by the Parties to be true and correct and are
hereby incorporated into and are deemed a part of this
Agreement.
2. Settlement
Amount. Notwithstanding the terms of any other agreement
between the Parties, LiveDeal shall pay Defendants US$300,000 (“Settlement
Amount”) in immediately available funds by wire transfer per the instructions
contained in Exhibit
A according to the following schedule:
(a) US
$250,000 upon the execution of this Agreement and the New Services Agreement;
and
(b) US$50,000
on February 15, 2010.
3. New
Services Agreement. As a condition to the execution of this
Agreement and the payment of the Settlement Amount, LiveDeal and OSM shall have
entered into a Services Agreement in the form attached as Exhibit B hereto,
pursuant to which OSM agrees to provide inbound and outbound telesales support
for LiveDeal’s “Legacy” business and assist with LiveDeal’s direct sales efforts
in exchange for the payments set forth therein (“New Services
Agreement”).
4. Termination
of Litigation. Within five days from the date of execution of
this Agreement and the New Services Agreement, the Parties will
file with the District of Arizona, before Judge Xxxxxxxx, a
Stipulation for Dismissal with Prejudice terminating the
Litigation. Each party to the litigation will bear their own
attorneys’ fees and costs incurred in the Litigation. The Parties agree to
execute such other documents and perform such other acts as may be necessary to
cause the entire Action to be dismissed with Prejudice.
5. Termination
of Prior Contracts. The Contracts previously entered into
among the Parties are hereby terminated or are acknowledged by the Parties to
have been previously terminated and all of the obligations arising therefrom
between the Plaintiffs and the Defendants shall be deemed terminated by mutual
agreement, including, without limitation, any and all payments for services or
interest payments that LiveDeal might have otherwise owed; provided that the
obligations of the Parties set forth in this Agreement and the New Services
Agreement shall survive.
6. Mutual
Release and Covenant Not to Xxx.
(a) Defendants,
on behalf of themselves and their officers, directors, agents, shareholders,
partners, affiliates and successors and assigns (collectively, the “OSM/SME Releasor
Parties”), hereby forever release, discharge, cancel, waive, and acquit
Plaintiffs and Plaintiffs’ subsidiaries, affiliates, agents, officers, managers,
owners, directors, employees, insurers, successors and assigns (collectively,
the “LiveDeal
Exculpated Parties”), of and from any and all rights, claims, demands,
causes of action, obligations, damages, penalties, fees, costs, expenses, and
liabilities of any nature whatsoever, whether in law or equity (collectively,
“Claims”),
which the OSM/SME Releasor Parties have, had or may hereafter have against any
LiveDeal Exculpated Parties arising out of, by reason of, or related to the
Contracts or the Parties’ prior relationships and transactions, existing as of
the date of execution of this Agreement, WHETHER KNOWN TO THE OSM/SME RELEASOR
PARTIES AT THE TIME OF EXECUTION OF THIS AGREEMENT OR NOT, other than any Claims
arising out of, or by reason of any breaches by the LiveDeal Exculpated Parties
of their obligations under this Agreement or the New Services Agreement, this
Agreement intending to be a full and final settlement between the
Parties. The foregoing release may be used to completely bar any
action or suit before any court, arbitral, or administrative body with respect
to any claim under federal, state, local, or other law relating to any of the
Claims released herein.
(b) Plaintiffs,
on behalf of themselves and their respective subsidiaries, officers, directors,
agents, shareholders, partners, affiliates and successors and assigns
(collectively, the “LiveDeal Releasor
Parties”), hereby forever release, discharge, cancel, waive, and acquit
Defendants, and Defendants’ subsidiaries, affiliates, agents, officers, owners,
directors, employees, insurers, successors and assigns (collectively, the “OSM/SME Exculpated
Parties”), of and from any and all Claims, which the LiveDeal Releasor
Parties have, had or may hereafter have against them arising out of, by reason
of, or relating to the Contracts or the Parties’ prior relationships or
transactions, existing as of the date of execution of this Agreement, WHETHER
KNOWN TO THE LIVEDEAL RELEASOR PARTIES AT THE TIME OF EXECUTION OF THIS
AGREEMENT OR NOT, other than any Claims arising out of, or by reason of any
breaches by the OSM/SME Exculpated Parties of their obligations under this
Agreement or the New Services Agreement, this Agreement intending to be a full
and final settlement between the Parties. The foregoing release may
be used to completely bar any action or suit before any court, arbitral, or
administrative body with respect to any claim under federal, state, local, or
other law relating to any of the Claims released herein.
(c) For
purposes of the remainder of this Agreement the term “Releasor Parties” shall refer
collectively to the OSM/SME Releasor Parties and the LiveDeal Releasor Parties
and the term “Exculpated Parties”
shall refer collectively to the OSM/SME Exculpated Parties and the LiveDeal
Exculpated Parties.
(d) Each
Party, on behalf of itself and its respective Releasor Parties, further
covenants and agrees not to institute, nor cause to be instituted, any legal
proceeding of any nature whatsoever, either on its own behalf or in any
representative capacity, for any claim released hereunder premised upon any
legal theory or claim whatsoever, including without limitation, contract, tort,
interference with contract, breach of contract, defamation, negligence,
infliction of emotional distress, fraud, or deceit, except that a Releasor Party
hereto may file a legal proceeding against an Exculpated Party to enforce the
terms of this Agreement or any agreement contemplated hereunder.
(e) Each
of the Parties acknowledges that the considerations afforded such Party under
this Agreement are in full and complete satisfaction of any Claims such Party or
the Releasor Parties may have or may have had prior to the date hereof, and
provide good and sufficient consideration for every promise, duty, release,
obligation, agreement and right contained in this Agreement.
(f)
EACH OF THE PARTIES ACKNOWLEDGES AND AGREES THAT THE
RELEASE AND DISCHARGE SET FORTH IN THIS AGREEMENT IS A GENERAL RELEASE AND
DISCHARGE AS TO IT AND ALL OTHER RELEASED PARTIES. EACH OF THE PARTIES FURTHER
EXPRESSLY WAIVES AND ASSUMES THE RISK THAT ANY AND ALL CLAIMS FOR DAMAGES WHICH
EXIST AS OF THE DATE OF THIS AGREEMENT BUT OF WHICH IT DOES NOT KNOW OR WHICH IT
DOES NOT SUSPECT EXIST, WHETHER THROUGH IGNORANCE, OVERSIGHT, ERROR, NEGLIGENCE,
OR OTHERWISE, AND WHICH IF KNOWN, WOULD MATERIALLY AFFECT ITS DECISION TO ENTER
INTO THIS AGREEMENT, ARE BEING RELEASED AND WAIVED BY THIS
AGREEMENT.
(g) Nothing
in this Agreement will prevent the Parties from asserting any defense to any
claim by any third party.
7. Assistance
with Illinois Dispute. OSM/SME agrees to cooperate and provide
assistance to LiveDeal as reasonably requested in connection with the existing
complaint filed by the Attorney General of Illinois against
LiveDeal.
8. No
Disparagement. Each of the
Parties agrees that as part of the consideration for this Agreement, each will
not make nor permit its affiliates to make disparaging or derogatory remarks,
whether oral or written, about the other Party or its business, products,
prospects, subsidiaries, affiliates, directors, officers or
agents. Nothing in this Agreement shall prevent any of the Parties
from giving truthful testimony or providing any information requested by a
governmental authority or by court order.
9. No
Admission of Liability. Nothing contained
in this Agreement shall be construed in any manner as an admission by any Party
that it has or may have violated any statute, law or regulation, or breached any
contract or agreement.
10.
No
Third Party Beneficiaries; Exception. Nothing in this
Agreement, whether expressed or implied, is intended to confer any rights or
remedies under, or by reason of, this Agreement on any persons other than the
Parties to it and their respective successors and permitted assigns, nor is
anything in this Agreement intended to relieve or discharge the obligation or
liability of any third person to any Party to this Agreement, nor shall any
provision give any third persons any right of subrogation or action over or
against any Party to this Agreement; provided, however, that any Exculpated
Party that is not a Party to this Agreement shall be deemed a third-party
beneficiary under Section 6 of this Agreement.
11. Confidentiality. The
Parties agree that they will keep the terms, conditions, and amount of this
Agreement and the New Services Agreement confidential and that they will not
hereafter disclose any information concerning this Agreement to
anyone to whom disclosure is not required by law or a court order,
provided that the foregoing excludes the Parties’ attorneys, accountants,
representatives, employees and other business advisors. The Parties
also agree that neither this Agreement nor evidence of this Agreement shall be
used or offered as evidence in any proceeding for any purpose whatsoever, except
for the purposes of enforcement and compliance as provided above. In
the event one of the Parties is requested by subpoena, deposition notice, court
order or otherwise to disclose the terms of this Agreement, notice shall be
given to the other Party’s legal counsel within five business days of receipt of
the request for disclosure.
12. Acknowledgements.
Each of the Parties acknowledges, represents, warrants and confirms the
following:
(a) the
Party has relied on its own judgment regarding the consideration for and
language of this Agreement;
(b) the
Party has been given a reasonable period of time to consider this Agreement, has
been advised to consult with independent counsel of his own choosing before
signing this Agreement, and has consulted with independent counsel or
voluntarily elected not to consult with independent counsel with respect
hereto;
(c) this
Agreement is written in a manner that is understandable to it and it has read
and understood all provisions of this Agreement;
(d) the
Party signs this Agreement as its free and voluntary act, without any duress,
coercion or undue influence exerted by or on behalf of the other Party or any
other third-party;
(e) signing
this Agreement is not an admission of fault or liability;
(f)
the Party is the sole owner of the claims or
causes of action being released herein and such Party has not conveyed or
assigned any interest in any such claims or causes of action to any person or
entity not a party hereto;
(g) the
Party has full and complete authorization and power to sign this Agreement in
the capacity herein stated;
(h) this
Agreement is a valid, binding and enforceable obligation of the Party and does
not violate any law, rule, regulation, contract or agreement otherwise
enforceable by or against the Party; and
(i)
the Party agrees to be
responsible for its own attorney’s fees and costs in connection with the
negotiation, preparation and effectuation of this Agreement.
13. Nature of
the Agreement. This Agreement
and all provisions thereof, including all representations and promises contained
herein, are contractual and not a mere recital and shall continue in permanent
force and effect. This Agreement constitutes the sole and entire
agreement of the Parties with respect to the subject matter hereof, and there
are no agreements of any nature whatsoever between any of the Parties hereto
with respect to the subject matter hereof, except as expressly stated
herein. This Agreement may not be modified or changed unless done so
in writing, signed by each of the Parties. In the event that any
portion of this Agreement is found to be unenforceable for any reason
whatsoever, the unenforceable provision shall be considered to be severable, and
the remainder of the Agreement shall continue to be in full force and
effect.
14. Notices. All
notices, requests and other communications hereunder must be in writing and will
be deemed to have been duly given only by facsimile transmission or by next day
delivery by a nationally recognized courier service to the Parties at the
following addresses or facsimile numbers:
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If
to OSM/SME:
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OnCall
Superior Management / SM eVentures
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Xxxxxxxx
Xxxxx, Xxxxx 0000
Xxxxxxx
Xxxxxx, Xxxxx, Xxxxxxxxxxx
Attention:
Xxxxxx Xxxx
Facsimile:
000-000-0000
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with
a copy to (which shall not constitute notice
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Xxxxxxxx X.
Xxxx
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XXXXXXX
& XXXXXXXXXX LLP
0000
Xxxxx Xxxxxxx Xxx., Xxxxx 000
Xxxxxxx,
Xxxxxxx 00000
xxxxx@xxxxxxxxxx.xxx
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If
to LiveDeal or Telco:
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LiveDeal,
Inc.
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0000 X.
Xxxxxx Xxxx, Xxxxx 000
Xxx
Xxxxx, Xxxxxx 00000
Attention:
General Counsel
Facsimile:
000-000-0000
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with
a copy to (which shall not constitute notice):
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Xxxxx
& Xxxxxx L.L.P.
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Xxx
Xxxxxxx Xxxxxx
Xxxxxxx,
Xxxxxxx 00000-0000
Attention: Xxx
Xxxxxxx
Facsimile: 000-000-0000
15. Waiver. The
waiver by either Party of any term, condition or provision of this Agreement
shall not be construed as a waiver of any other or subsequent term, condition or
provision.
16. Governing
Law. This Agreement shall be construed in accordance with and
governed by the internal laws (without reference to choice or conflict of laws)
of the State of Nevada.
17. Attorney’s
Fees. In the event any Party to this Agreement brings any
action to enforce any provision hereof or to collect damages of any kind for any
breach of this Agreement, the prevailing party shall be entitled to all court
costs, all expenses arising out of or incurred by reason of the litigation, and
any reasonable attorney’s fees expended or incurred in any such proceedings, and
all such costs and expenses shall be included in the judgment.
18. Binding
Effect. This Agreement shall be binding upon and inure to the
benefit of the Parties and each of their respective heirs, successors, assigns
and related entities.
19. No
Assignment of Claims. Each Party hereby
represents and warrants that such Party has not assigned or otherwise
transferred or subrogated, or purported to assign, transfer or subrogate, to any
person or entity, any Claim, or any portion thereof, or interest therein such
Party may have against the other and such Party agrees to indemnify, defend and
hold the other harmless from and against any and all liabilities, losses,
demands, claims, damages, costs, expenses or attorneys’ fees incurred by such
other Party as the result of any person or entity asserting any such right,
assignment, transfer or subrogation.
20. Further
Act. The Parties, without further consideration, shall execute
and deliver such other documents and take such other action as may be necessary
to achieve the objectives of this Agreement.
21. No
Release of Obligations. Nothing
contained in this Agreement shall operate to release or discharge any of the
Parties hereto from any claims, rights or causes of action arising out of,
relating to or connected with the breach, violation, or untruth of any
representation or warranty of such Party set forth herein.
22. Counterparts. This
Agreement may be executed in two or more counterparts, and by facsimile, each of
which shall be deemed an original but all of which taken together shall
constitute but one and the same Agreement.
[Signatures
on Following Page]
IN
WITNESS WHEREOF, the Parties hereto have duly executed this Agreement effective
as of the date first written above.
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ONCALL
SUPERIOR MANAGEMENT
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/s/ Xxxxxx Xxxx
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By:
Xxxxxx Xxxx
Its:
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SM
eVENTURES
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/s/ Xxxxxx Xxxx
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By:
Xxxxxx Xxxx
Its:
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LIVEDEAL,
INC.
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/s/ Xxxxx Xxxx
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By:
Xxxxx Xxxx
Its:
Chief Operating Officer
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TELCO BILLING,
INC.
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/s/ Xxxxx Xxxx
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By:
Xxxxx Xxxx
Its:
President
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