CONFIDENTIAL SETTLEMENT AGREEMENT
This Agreement is made effective as of
November 5, 2009, by and between SpongeTech Delivery Systems, Inc., (“SpongeTech” or “Plaintiff”) and R.M.
Enterprises International, Inc. (“R.M.”) and GETFUGU, Inc.
(“GetFugu” or “Defendant”). SpongeTech
and GetFugu are collectively referred to as the “Parties” and singularly
referred to as “Party”.
RECITALS
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A.
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The
Parties were involved in a litigation captioned SPONGETECH
DELIVERY SYSTEMS, INC. v. GETFUGU,
INC. et. al..
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B.
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The
claims in the litigation are disputed and there is no admission of
liability by either party. Having settled their disputes, the
Parties now wish to further reduce to writing the terms of their
settlement as contemplated.
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AGREEMENT
The
Parties agree as follows:
Section
1. General
Releases.
Section 1.1. SpongeTech
and R.M., on behalf of itself and its present, past and future predecessors,
affiliates, parents, subsidiaries, shareholders, managers, associates,
employees, officers, directors representatives, agents, successors and assigns,
hereby absolutely, unconditionally, finally and forever waives, releases and
discharges the Defendant from any claims, rights, damages or obligations against
the other, including without limitation and causes of action that either were
asserted or could have been asserted in the litigation.
Section 1.2. Defendant, on behalf of
itself and its present, past and future predecessors, affiliates, parents,
subsidiaries, shareholders, managers, associates, employees, officers, directors
representatives, agents, successors and assigns, hereby absolutely,
unconditionally, finally and forever waives, releases and discharges SpongeTech
from any claims, rights, damages or obligations against the other, including
without limitation and causes of action that either were asserted or could have
been asserted in the litigation.
Section 2. SpongeTech
and R.M. each represent and warrant to GetFugu that neither such Party (a) has
engaged in any short sales (as defined in Regulation SHO under the Securities
Act) of GetFugu common stock, (b) holds any open short position in GetFugu
common stock, or (c) will use any of the shares acquired pursuant to Section 4.1
below to cover any open short position.
Section 3. General
Provisions.
Section 3.1. Entire
Agreement. This Agreement supersedes any and all prior or
contemporaneous negotiations, correspondence, understandings or agreements of
the Parties relating to the subject matter hereof, whether written or oral, and
all such other understandings or agreements shall upon the effective date be
void and without further force or effect. No change, modification,
addition or amendment to this Agreement shall be valid unless in writing and
duly executed by all Parties, indicating intent to modify
the Agreement.
Section
3.2. Notice. In
the case of any need to communicate with regard to this Agreement, such
communications shall be in writing and shall be directed to the following
designated individuals:
For
SpongeTech and R.M.:
SpongeTech
Delivery Systems, Inc.
00 Xxxx
00xx
Xxxxxx, Xxxxx 000
Xxx Xxxx,
Xxx Xxxx 00000
Attn:
Chief Operating Officer
With a
copy to:
Xxxxxxx Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx, 0xx
Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx,
Esq.
For
GetFugu:
0000 X. Xxxxxx Xxxx., 0xx
Xxxxx
Xxxx Xxxxxxxxx, XX 00000
Attn: President
With a copy to:
Xxxx Xxxxxxx Xxxxxxxx & Scripps
LLP
000 X. Xxxxxxxx Xx., 00xx
Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx,
Esq.
Any notice required or permitted by
this Agreement shall be effective only if given in writing and shall be
considered to have been given when (i) delivered by hand, (ii) sent by
telecopier with completed transmission confirmed, provided that a copy is mailed
reasonably promptly by certified or registered mail, return receipt requested,
postage prepaid, or (iii) received by the addressee, if sent by Express Mail,
Federal Express, or other reputable express delivery service (receipt
requested), or by first class certified or registered mail, return receipt
requested, postage prepaid to the party to be notified at such a Party’s address
as set forth above, or as subsequently modified by the
Parties. Notices sent by Federal Express or other reputable express
delivery service (receipt requested) marked for next-day delivery shall be
deemed received on the next business day after sending.
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Section 3.3. Governing
Law. All matters affecting the interpretation, form,
validity, and performance of this Agreement shall be decided under the laws of
the State of New York without regard to principles of conflicts of
law.
Section 3.4. Captions. The
captions in the Agreement are intended solely as a matter of convenience and for
reference and shall be given no effect in the construction or interpretation of
the Agreement.
Section 3.5. Severability of
Provisions. Should any part or provision of the Agreement be
held unenforceable or in conflict with the law of any jurisdiction, the validity
of the remaining parts or provisions shall be unimpaired.
Section 3.6. No
Agency. At no time shall any Party hold itself out to be the
agent, employee, lessee, sublessee, partner, or joint venture partner of another
Party. Nothing in the Agreement shall be construed to create any
relationship between the Parties other than as expressly set forth in this
Agreement. The Parties shall not have any express or implied right or
authority to assume or create any obligations on behalf of or in the name of the
other Party or to bind the other Party with regard to any other contract,
agreement, or undertaking with a third party.
Section 3.7. Construction Against
Waiver. No waiver of any term, provision, or condition of the
Agreement, whether by conduct or otherwise, in any one or more instances shall
be deemed to be construed as a further or continuing waiver of any such term,
provision, or condition of the Agreement; no shall any failure to enforce any
provision hereof operate as a waiver of such provision or of any other
provision.
Section 3.8. Joint
Drafting. Counsel for Parties participated in the negotiation
and drafting of this Agreement. The terms of this Agreement should
not be construed either for or against any Party based solely on the authorship
of any particular term or section.
Section 3.9. Execution of
Agreement. This Agreement may be executed in one or more
counterparts, and all counterparts so executed shall constitute one single and
entire Agreement, which shall be binding on the Parties hereto, notwithstanding
that the Parties may not be signatories to the original or the same
counterparts.
Section 4. Other
Terms.
Section 4.1. In
consideration for the sum of One Million, Seven Hundred and Fifty Thousand
($1,750,000.00) Dollars, receipt of which is hereby acknowledged, GetFugu shall
issue to R.M., Five Million, Two Hundred Fifty Thousand Five Hundred Twenty-Five
(5,250,525) shares of common stock of GetFugu, Inc. (“Purchased Shares”), pursuant
to and in accordance with a Subscription Document and Accredited Investor
Questionnaire (“Subscription
Document”), copy of which is attached hereto and incorporated herein by
reference as Exhibit
A as if set forth in full herein.
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Section 4.2. R.M. may
transfer the Purchased Shares to SpongeTech or its designee in a private
transaction under Section 4(1) of the Securities Act of 1933, as amended (“Act”), which transfer shall be
made in full compliance with all applicable state and federal securities laws,
and shall not be deemed a violation of any transfer restriction otherwise
incorporated into or made a part of the Purchased Shares. Share certificates
shall continue to bear the standard restrictive legend following
transfer.
Section 4.3. GetFugu and
SpongeTech shall enter into GetFugu’s standard form of Augmented Reality Link
Terms of Service Agreement (provided, however, that SpongeTech shall
not be charged any service fee for up to 20 ARLs specified by the Customer and up to a number of VRLs and GRLs as mutually
agreed), and SpongeTech shall promptly be placed on the GetFugu Platform
and provided the Services (as defined in the ARL Terms of Service
Agreement).
Section 4.4. Neither Party
nor any affiliate company shall, in any communications with the press or other
media or any customer, client or supplier, criticize, ridicule or make any
remark or statement which disparages or is derogatory of the other Party, its
affiliates or any of their respective products, services, directors or senior
officers. Each Party shall instruct and cause its directors and
senior officers not to make any such statements.
Section 4.5. Either Party
may issue a press release in mutually agreeable form, which shall state, among
other things, that the Parties have amicably resolved their differences and
misunderstandings and look forward to working together in the
future. Aside from any public disclosure in filings with the
Securities and Exchange Commission that either Party deems to be necessary or
appropriate based upon written advice of counsel, neither Party shall may any
other public statement concerning the other.
Section 4.6. The Parties
agree to immediate dismissal of suit with prejudice, with each party to bear its
own attorney fees, costs and expenses of suit.
Section 4.7. The Parties
agree that the terms of the settlement will be confidential and both parties
need to agree on the content of any press release and any other public
announcement of the settlement, except to the extent that either Party is
required to make disclosure of the settlement in its regulatory or other
filings, in which case that disclosure shall be determined by that Party and its
counsel.
Section 5. Piggy-Back
Registrations. If at any time during the date which is the
earlier of (i) such time as all of the Purchased Shares have been publicly sold
by R.M. or SpongeTech (the “Holder”), or (ii) such time as all of the Purchased
Shares may be sold by the Holder pursuant to Rule 144 as determined by the
counsel to GetFugu pursuant to a written opinion letter to such effect,
addressed and acceptable to GetFugu’s transfer agent and the affected Holder,
there is not an effective registration statement covering all of the Purchased
Shares and GetFugu shall determine to prepare and file with the Securities and
Exchange Commission a registration statement relating to an offering for its own
account or the account of others under the Act of any of its equity securities,
other than on Form S-4 or Form S-8 (each as promulgated under the Act) or their
then equivalents relating to equity securities to be issued solely in connection
with any acquisition of any entity or business or equity securities issuable in
connection with stock option or other employee benefit plans, then GetFugu shall
send to Holder written notice of such determination and, if within fifteen days
after receipt of such notice, any Holder shall so request in writing, GetFugu
shall include in such registration statement all or any part of such Purchased
Shares such Holder requests to be registered, subject to customary underwriter
cutbacks applicable to all holders of registration rights.
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IN WITNESS WHEREOF, the
Parties have caused the Agreement to be executed for these
purposes.
SPONGETECH
DELIVERY SYSTEMS, INC.
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