ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT, FINANCIAL STATEMENT RELEASE AND SETTLEMENT AGREEMENT
Exhibit
10.2
ENTRY
INTO A MATERIAL DEFINITIVE AGREEMENT, FINANCIAL
STATEMENT
THIS
RELEASE AND SETTLEMENT AGREEMENT ("Agreement") is made and entered into by
and
between Dial Thru International, Inc., hereinafter referred to as "Dial Thru"
and Xxxxx Xxxxxxxx, Affluent Media Network, Inc a Florida corporation, Affluent
Media Networks, Inc., a Florida corporation Affluent Media of Nevada, Inc.,
a
Nevada corporation and Millennium Media, an offshore company, hereinafter
referred to as "Affluent."
RECITALS
A. A
dispute ("Dispute") has arisen between Dial Thru, and Affluent concerning,
among
other things, the 3.4 million dollars in Dial Thru stock transferred by Dial
Thru to Affluent in exchange for the sum of 3.4 million dollars in media
credits.
B. It
is the desire of the parties hereto to fully and finally settle and resolve
any
and all claims among and between them, except as otherwise provided in this
Agreement, to terminate all relationships, controversies and other matters
presently existing between and among them, arising from or pertaining to
the
Dispute and the action subject only to the terms, conditions and exceptions
set
forth in this Agreement.
NOW,
THEREFORE, in consideration of the foregoing facts and the promises, covenants
and releases, representations and warranties contained in this Agreement,
the
parties agree hereto as follows:
SECTION
1
SETTLEMENT
AGREEMENT
1.1 Settlement. As
consideration for the execution of this Agreement, the parties hereto agree
as
follows:
(a) Xxxxx
Xxxxxxxx, Affluent Media Network, Inc., a Florida corporation, Affluent Media
Networks, Inc., a Florida corporation, Affluent Media of Nevada, Inc., a
Nevada
corporation and Millennium Media, an offshore company shall jointly and
severally pay Dial Thru the total sum of $335,000.00 This amount
shall be paid $25,000.00 upon the execution of this settlement agreement,
(said
amount has been received) in addition the sum of $10,000.00 that shall be
payable to ITEX and credited to the account of Transnational Communications,
Inc./Dial Thru International, Inc./Rapid Link, Inc so as to pay the transfer
fee
related to the first $100,000.00, (said amount has been received) in addition
to
the sum of $300,000.00 in fully transferable barter credits with ITEX that
shall
be deposited into an account in the name of Transnational Communications,
Inc./Dial Thru International, Inc./Rapid Link, Inc. The authorized
users on said account shall be Xxxx Xxxxxxx and Xxxx
Xxxxxxx. Affluent shall pay any expense and shall be fully
responsible to transfer the sum of $300,000.00 in fully usable barter credits
to
Dial Thru. Said barter credits shall be transferred to Dial Thru upon
the execution of this settlement agreement.
Exhibit
10.2
ENTRY
INTO A MATERIAL DEFINITIVE AGREEMENT, FINANCIAL
STATEMENT
(b) Said
$300,000.00 in ITEX barter credits shall be paid by Affluent by
depositing said fully transferable barter credits into the account Transnational
Communications, Inc./Dial Thru International, Inc./Rapid Link, Inc. as
follows:
1. $100,000.00
upon the execution of this SettlementAgreement (said amount has been
received);
2. $100,000.00
on or before August 31, 2007; and
3. $100,000.00
on or before September 30, 2007.
Should
Affluent fail to timely deposit
said fully transferable barter credits Dial Thru may declare Affluent in
default
and shall be entitled to obtain a money judgment against all defendants in
the
amount of the unpaid barter credits by filing with the court a declaration
stating said default in the transferring of said barter credits and seeking
a
money judgment from this court. The court shall render said judgment
based upon the declaration filed by Dial Thru or its counsel.
(c) Dial
Thru acknowledges that when it uses the ITEX barter there is a 10% fee charged
by ITEX for the use of said bartered items.
SECTION
2
RELEASE
2.1 The
release of Affluent shall become effective only upon compliance by the Affluent
of all of the provisions set forth in this Agreement.
2.2 The
noun "claim," whether singular or plural, wherever appearing in this Agreement
shall mean, inter alia, each and every claim, demand, controversy,
injury, damage, debt, liability, judgment (whether in law or in equity),
account, reckoning, obligations, contract, agreement, cost, expense, lien,
suit
and action or cause of action (including attorneys' fees for negotiation
and
litigation costs paid or incurred, and other legal expenses).
2.3 Pursuant
to Section 1542 of the California Civil Code, and subject to the terms and
conditions of this Agreement, Dial Thru International, Inc. and Rapid Link,
Inc., hereby releases and discharges Xxxxx Xxxxxxxx, Affluent Media Network,
Inc
a Florida corporation, Affluent Media Networks, Inc., a Florida corporation,
Affluent Media of Nevada, Inc., a Nevada corporation and Millennium Media,
an
offshore company and every subsidiary, partner, servant, successor, attorney,
accountant, predecessor, agent, employee, relative, spouse, and other
representative of each other, including, but not limited to each and every
claim, whether actual or potential and whether known or unknown, from any
and
all claims, including, but not limited to, any of the matters which arise
out
of, directly or indirectly, or in any way connected with the
Dispute. Said release shall not benefit, in any manner
Yahoo!, a co-defendant in the above mentioned litigation.
Exhibit
10.2
ENTRY
INTO A MATERIAL DEFINITIVE AGREEMENT, FINANCIAL
STATEMENT
2.4 Pursuant
to Section 1542 of the California Civil Code, and subject to the terms and
conditions of this Agreement, Xxxxx Xxxxxxxx, Affluent Media Network, Inc
a
Florida corporation, Affluent Media Networks, Inc., a Florida corporation,
Affluent Media of Nevada, Inc., a Nevada corporation and Millennium Media,
an
offshore company hereby releases and discharges Dial Thru International,
Inc.
and Rapid Link, Inc., and every subsidiary partner, office, shareholder,
servant, successor, attorney, accountant, predecessor, agent, employee,
relative, spouse, and other representative of each other, including, but
not
limited to each and every claim, whether actual or potential and whether
known
or unknown, from any and all claims, including, but not limited to, any of
the
matters which arise out of, directly or indirectly, or in any way connected
with
the Dispute.
2.5 The
execution of this Agreement affects the settlement of all claims which are
disputed, contested and denied between these parties only. Nothing
contained in this Agreement is intended, or shall be deemed or construed,
to be
an admission by any party hereto for any liability whatsoever to any party
or
any other person or entity, except as may be otherwise expressly provided
for in
this Agreement.
2.6 Each
party hereto hereby acknowledges that he has read and presently understands
Section 1542 of the Civil Code of the State of California, which provides
as
follows:
"A
general release does not extend to claims a creditor does not know or suspect
to
exist in his favor at the time of executing the release, which if known by
him
must have materially affected his settlement with the debtor."
Each
party hereto waives and relinquishes any and all rights and benefits which
he
presently has or may have in the future under Section 1542. Each
party hereto hereby acknowledges that he is aware that he may hereafter discover
facts in addition to or different from those which he now knows or believes
to
be true with respect to any part of the Dispute which shall have no effect
on
any of the releases contained in this Agreement, but that it is the clear
and
unequivocal intention of each party hereto to hereby effectuate, fully, finally
and forever, the settlement, release and discharge of each and every claim
specifically or generally referred to in this Agreement, and that in furtherance
of such intention, any and all releases provided herein shall be and remain
in
effect as full and complete general releases, notwithstanding the discovery
and/or the existence of any additional or different facts.
Exhibit
10.2
ENTRY
INTO A MATERIAL DEFINITIVE AGREEMENT, FINANCIAL
STATEMENT
2.7 Full
performance by each party hereto of each and all of their obligations
hereunder shall constitute a condition precedent to the effectiveness of
each of
the releases and discharges made hereunder in their favor.
2.8 Each
party hereto hereby represents and warrants that he has not assigned or
otherwise transferred, and will not hereafter assign or otherwise transfer,
any
interest in any claim which is released by him in this Agreement, and each
party
hereto agrees to indemnify, hold harmless and defend each and every person
and
other entity who is released by him in this Agreement, with respect to any
and
all claims which any arise out of or by reason of any such assignment or
transfer of any interest in any such claim.
2.9 Xxxxx
Xxxxxxxx shall, at his own cost, appear as a witness at trial without subpoena,
upon notice to his counsel, Xxxx Xxxxx, Esq. or JamesDevitt, Esq.
2.10 The
appearance at trial by Xxxxx Xxxxxxxx is a material provision of this settlement
and shall be enforceable pursuant to CCP section 664.6 and punishable by
contempt as Xxxxx Xxxxxxxx is subject to the jurisdiction of the Los Angeles
Superior Court. Xxxxx Xxxxxxxx acknowledges that the current trial
date is September 17, 2007 and states that he is available to testify at
said
trial when called as a witness by the Plaintiff. Xxxxx Xxxxxxxx
acknowledges that he has received notice of the trial date of September 17,
2007
and that he will appear on September 17, 2007, or any day thereafter, in
the
Santa Xxxxxx Superior Court when called as a witness by the
Plaintiff.
SECTION
3
GENERAL
PROVISIONS
3.1 Incorporation
of Recitals. The recitals preceding Section 1 of this
Agreement are incorporated herein by this reference, and each party hereto
hereby represents and warrants that each such recital is true and
correct.
3.2 Representation
by Counsel. Each party hereto hereby acknowledges,
represents and warrants that he has, in connection with the negotiation,
review
and execution of this Agreement been represented by, consulted with and/or
been
advised by qualified, competent legal counsel, or have been informed and
advised
that they should seek the assistance of counsel prior to the execution of
this
Agreement, and have knowingly, intelligently and voluntarily waived any
assistance of such counsel. Each party hereto hereby agrees that they
have read this Agreement carefully, and understands the import and substance
of
each and all of the terms set forth in this Agreement.
Exhibit
10.2
ENTRY
INTO A MATERIAL DEFINITIVE AGREEMENT, FINANCIAL
STATEMENT
3.3 Court
to Retain Jurisdiction. The court shall retain
jurisdiction to enforce any and all aspects of this settlement pursuant to
CCP
section 664.6.
3.4 Severability. Each
and every provision of this Agreement is severable from each and all of the
other provisions of this Agreement. In the event that any provision
of this Agreement is for any reason unenforceable, the balance of the provisions
shall nonetheless be in full force and effect.
3.5 Attorneys'
Fees. In the event legal action is commenced to enforce
or interpret this agreement, or for declaratory relief with respect thereto,
the
prevailing party in such action shall be entitled to recover from the losing
party the reasonable attorneys' fees and costs incurred by the prevailing
party
in such action.
3.6 Entire
Agreement. This Agreement contains the entire
understanding and agreement between the parties hereto with respect to the
matters referred to herein. No other representations, covenants,
undertakings or other prior or contemporary agreements, whether oral or written,
respecting such matters, which are not specifically incorporated herein,
shall
be deemed in any way to exist or bind any of the parties hereto. The
parties hereto acknowledge that each party has not executed
this Agreement in reliance on any other promise, representation or
warranty.
3.7 Construction. This
Agreement shall not be construed against the party preparing it, but shall
be
construed as if all parties jointly prepared this Agreement, and any uncertainty
and ambiguity shall not be interpreted against any one
party. The Agreement shall be interpreted, enforced and
governed by and under the laws of the State of California.
3.8 Modification. This
Agreement shall not be modified by either party by any oral representations
made
before or after the execution of this Agreement. All modifications
must be in writing and signed by each party hereto.
3.9 Time
is of the Essence. Time is of the essence for the
performance of each and every covenant and the satisfaction of each and every
condition contained in this Agreement.
3.10 Facilitation. Each
party hereto agrees to execute and perform, such other documents and acts
as are
reasonably required in order to facilitate the terms of this Agreement, and
the
intent thereof, and to cooperate in good faith in order to effectuate the
provisions of this Agreement.
3.11 Covenant
Not to Xxx. The Parties covenant and agree never to
commence an action or prosecute any other party in any legal action or other
proceeding arising from or based upon the claims, damages, causes of action,
obligations, damages and/or liabilities released in this
Agreement. The Parties expressly agree that this Agreement may be
pleaded as a full and complete defense to any action or other proceeding
related
to the matters herein released and as a basis for abatement of, or injunction
against such action.
Exhibit
10.2
ENTRY
INTO A MATERIAL DEFINITIVE AGREEMENT, FINANCIAL
STATEMENT
The
effective date of this Agreement shall be the latest date indicated
hereinbelow.
BY
THEIR SIGNATURES BELOW, THE UNDERSIGNED REPRESENT THAT THEY HAVE READ THE
FOREGOING AGREEMENT AND FULLY UNDERSTAND AND AGREE TO EACH AND ALL OF THE
TERMS
AND CONDITIONS SET FORTH THEREIN.
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DATED: June
___, 2007
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DIAL-THRU
INTERNATIONAL, INC., a Delaware corporation
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By:
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Xxxx
Xxxxxxx, Chief Operating Officer
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DATED: June
___, 2007
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RAPID-LINK,
INC., a California corporation
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By:
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Xxxx
Xxxxxxx, Chief Operating Officer
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DATED: June
___, 2007
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XXXXX
XXXXXXXX, an Individual
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By:
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Xxxxx
Xxxxxxxx
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DATED: June
___, 2007
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AFFLUENT
MEDIA NETWORK, INC., a Florida corporation
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By:
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Print
Name:
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Its:
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Exhibit
10.2
ENTRY
INTO A MATERIAL DEFINITIVE AGREEMENT, FINANCIAL
STATEMENT
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DATED: June
___, 2007
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AFFLUENT
MEDIA NETWORKS, INC., a Florida corporation
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By:
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Print
Name:
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Its:
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DATED: June
___, 2007
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AFFLUENT
MEDIA OF NEVADA, INC., a Nevada corporation
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By:
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Print
Name:
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Its:
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DATED: June
___, 2007
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MILLENNIUM
MEDIA, LTD., a British Virgin Islands corporation
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By:
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Print
Name:
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Its:
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APPROVED
AS TO FORM AND CONTENT:
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DATED: June
___, 2007
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XXXXXXXXX,
COMDEN & XXXXXXXXX, LLP
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XXXXXX
X. XXXXXXXX, ESQ.
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By:
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XXXXXX
X. XXXXXXXX
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Attorney
for Plaintiff, Dial-Thru International, Inc., a Delaware
corporation
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Exhibit
10.2
ENTRY
INTO A MATERIAL DEFINITIVE AGREEMENT, FINANCIAL
STATEMENT
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DATED: June
___, 2007
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XXXXXX
& XXXXXXXX
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Xxxxx
Xxxxxx, Esq.
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By:
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XXXXX
XXXXXX,
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Attorney
for Defendants, Xxxxx Xxxxxxxx, an Individual, AFFLUENT MEDIA NETWORK,
a
Florida corporation
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DATED: June
___, 2007
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LAW
OFFICES OF XXXX XXXXX
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XXXX
XXXXXXXX XXXXX, ESQ.
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By:
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XXXX
XXXXXXXX XXXXX,
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Attorney
for Defendants, MILLENIUM MEDIA, LTD., a British Virgin Islands
corporation
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