SETTLEMENT AGREEMENT AND GENERAL MUTUAL RELEASE
GENERAL
MUTUAL RELEASE
This
Settlement Agreement and General Mutual Release (“Agreement”) is made and
entered into as of December ___, 2008, by and between Ethos Environmental, Inc.
(“ETHOS”) and MKM Opportunity Master Fund, Limited, a Cayman Islands corporation
(“MKM”). ETHOS and MKM are sometimes referred to herein as “Party” or
“Parties”.
RECITALS
WHEREAS,
on or about August 1, 2008, Ethos issued a Convertible Promissory Note to MKM
for the principal amount of $300,000 (the “Note”).
WHEREAS,
on or about August 1, 2008, Ethos issued a Common Stock Purchase Warrant to MKM
for 1,000,000 shares of Ethos common stock (the “August Warrant”).
WHEREAS,
on or about October 1, 2008, Ethos issued a Common Stock Purchase Warrant to MKM
for 500,000 shares of Ethos common stock (the “October Warrant”).
WHEREAS,
The Note, August Warrant and October Warrant shall collectively be referred to
as the “Prior Agreements.”
WHEREAS,
the parties have resolved to terminate the Prior Agreements and enter into a new
Common Stock Purchase Warrant and a new Convertible Promissory Note pursuant to
terms and conditions herein.
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual covenants set forth in this Agreement,
and for other good and valuable consideration, the receipt and adequacy of which
is acknowledged, the Parties covenant and agree as follows:
A. Consideration. As
full consideration for the Settlement and Mutual General Release
hereunder:
1. MKM shall
provide additional financing to ETEV in the amount of: (i) $150,000 within three
(3) business days from the date of the Agreement; and, (ii) $100,000 within
thirty (30) days from the date of this Agreement; and,
2. ETEV
shall: (i) issue to MKM five hundred thousand (500,000) shares of ETEV common
stock within ten (10) business days from the date of this Agreement; (ii) pay
five thousand dollars ($5,000) to MKM within ten (10) business days from the
date of this Agreement; (iii) shall issue to MKM a five year Common Stock
Purchase Warrant for the purchase of one million five hundred thousand
(1,500,000) shares at a purchase price of $.25 per share; and, (iv) ETEV shall
issue a replacement Convertible Promissory Note (the “New Note) in the principal
amount of $450,000 bearing simple interest at a rate of ten percent (10%) per
annum, with the face value of the New Note to be increased to
$550,000 upon receipt of the additional financing amount as set forth in Section
A(1)(ii) above, with the New Note maturing and becoming due and payable on
September 30, 2009.
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B. Breach;
Action for Damages. Either Party may seek damages against the
other resulting from a breach of this Agreement.
C. Attorneys’
Fees. In the event of any action or proceeding instituted
between the Parties in connection with any breach of this Agreement, the
prevailing Party shall be entitled to recover from the losing Party all of the
prevailing Party’s litigation costs and expenses, including attorneys’ fees and
non-statutory costs.
D. Each
Party to Bear Previous Fees and Costs. Except as otherwise set
forth herein, each Party hereto shall be responsible for payment of its own
attorneys’ fees, costs, and all other expenses incurred at any time with respect
to the drafting of this Agreement.
E. No
Waiver. The waiver by any party of the performance of any
covenant, condition, promise or breach shall not invalidate this Agreement, nor
shall it waive that Party’s or any other Party’s right to future performance of
such covenant, condition or promise. The failure to pursue or the
delay in pursuing any remedy or in insisting upon full performance any covenant,
condition or promise shall not prevent a party from later pursuing remedies or
insisting upon full performance for the same or similar defaults, breaches or
failures.
F. Notices. All
notices, approvals, requests, demands and other communications required or
permitted to be given under this Agreement shall be in writing and shall either
be delivered in writing personally or sent by overnight mail delivery or sent by
certified first class mail, postage prepaid, deposited in the United States
mail, and properly addressed to the Party at its address below, or at any other
address that such Party may designate by written notice to the other Parties,
with copies to the counsel at the addresses shown below, or to such other
counsel as the Parties may designate by written notice to the other
Parties. Notice shall be effective immediately upon personal
delivery, after five (5) calendar days if made by regular mail or after two (2)
business days if given by overnight mail or by facsimile.
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If
to ETHOS
With
a copy to:
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Attn:
Xxxxx X. Xxxxxxxxxxx
0000
Xxxxxxx Xxxx Xxxxx
Xxx
Xxxxx, XX 00000
Fax:
(000) 000-0000
Xxxx
Xxxxxxxx, Esq.
0000
Xxxxxxx Xxxx Xxxxx
Xxx
Xxxxx, XX 00000
Fax: (000)
000-0000
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If
to MKM:
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G. Mutual
Release. MKM, on the one hand, and ETHOS, on the other hand,
for themselves and their respective predecessors, successors, affiliates,
officers, directors, principals, partners, employees, executors, beneficiaries,
representatives, agents, assigns, attorneys, and all others claiming by or
through them hereby release and forever discharge each other and their
respective predecessors, successors, affiliated entities, subsidiaries, parent
companies, affiliates, officers, directors, principals, partners, employees,
executors, beneficiaries, representatives, agents, assigns, and attorneys from
any and all claims, causes of action, suits, proceedings, debts, contracts,
controversies, claims and demands of any kind, nature or description, that were
alleged, or could have been alleged, related to or arising out of the Prior
Agreements, whether based upon a tort, contract or other theory of recovery, and
whether for compensatory damages, punitive damages or other relief in law,
equity or otherwise.
H. Release
of Unknown Claims Arising from Actions. The Parties
acknowledge that they are familiar with Section 1542 of the California Civil
Code, which provides as follows:
A GENERAL
RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE 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.
The
Parties expressly waive and relinquish any and all rights and benefits which
they may have under, or which may be conferred upon them by the provisions of
Section 1542 of the California Civil Code, as well as under any other similar
state or federal statute or common law principle, with respect to all claims
alleged, or that could have been alleged, related to or arising out of the Prior
Agreements. The Parties acknowledge that such waiver shall not
prevent the Parties from seeking damages against the other resulting from a
breach of this Agreement.
I. Entire
Agreement; No Oral Modification. This Agreement constitutes the complete
and entire written agreement of compromise, settlement and release between the
Parties and constitutes the complete expression of the terms of the settlement.
All prior and contemporaneous agreements, representations, and negotiations are
superseded and merged herein. The terms of this Agreement can only be amended or
modified by a writing, signed by duly authorized representatives of all Parties
hereto, expressly stating that such modification or amendment is
intended.
J. Future
Actions. The Parties hereto agree that, for their respective
selves, heirs, executors and assigns, they will abide by this Agreement, which
terms are meant to be contractual, and further agree that they will do such acts
and prepare, execute and deliver such documents as may reasonably be required in
order to carry out the purposes and intents of this Agreement.
K. Authority
to Execute. Each Party executing this Agreement represents
that it is authorized to execute this Agreement. Each person executing this
Agreement on behalf of an entity, other than an individual executing this
Agreement on his or her own behalf, represents that he or she is authorized to
execute this Agreement on behalf of said entity.
L. Warranty
Against Assignment. The Parties represent and warrant to each
other that they have not and will not encumber, assign or transfer or purport to
encumber, assign or transfer, in whole or in part, to any person, firm or
corporation whatsoever, any claim, debt, liability, demand, obligation, cost,
expense, damage, action or cause of action herein released or
settled.
M. Binding
on Successors. This Agreement shall inure to the benefit of
and shall be binding upon the Parties hereto and their respective heirs,
executors, successors, and assigns.
N. Construction
of Agreement. The Parties and their counsel have reviewed and
negotiated this Agreement, and the normal rule of construction to the effect
that any ambiguities in an agreement are to be resolved against the drafting
party shall not be employed in the interpretation of this
Agreement.
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O. Headings. Headings
are informational only and shall not be used to interpret this
Agreement.
P. Voluntary
Agreement. The Parties have read this Agreement, have had the
benefit of counsel and freely and voluntarily enter into this
Agreement.
Q. Tax
Consequences. The Parties to this Agreement acknowledge and
understand that there may be certain tax consequences which arise as a result of
the execution and performance of this Agreement and, by executing this
Agreement, each Party confirms that no other Party to this Agreement or any
counsel has made any representations regarding such consequences.
X. Xxxxxxxxx. If
a provision of this Agreement is held to be illegal or invalid, such provision
shall be (a) rewritten by the Court to be legal and valid so long as the
rewritten provision remains consistent with the intent of the Parties expressed
herein or (b) deemed to be severed and deleted. Neither such revision
nor such severance and deletion shall affect the validity of the remaining
provisions.
S. Counterparts. This
Agreement may be executed in counterparts and, if so executed, each counterpart
shall have the full force and effect of an original. Further, a telecopied
signature page by any signatory shall constitute an original for all
purposes.
T. Governing
Law. This Agreement shall be construed and enforced according
to the laws of the State of California.
IN
WITNESS WHEREOF, the Parties have entered into this Agreement made and effective
as of the date first hereinabove written.
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Dated: December
__, 2008
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By:
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| Name: Xxxxxx Xxxxx | ||
| Title: Chief Financial Officer | ||
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Dated: December
__, 2008
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MKM Opportunity Master Fund,
Limited
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By:
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| Name: | ||
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