Exhibit 10.2
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CONFIDENTIAL SETTLEMENT AGREEMENT AND MUTUAL RELEASE
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ATSI Communications, Inc., a Nevada corporation ("ATSI"), formerly a
Delaware corporation, and Infraestructura Espacial, S.A. de C.V., a Mexican
corporation ("Infraestructura") (collectively, the "Parties"), hereby enter into
this Confidential Settlement Agreement and Mutual Release (the "Settlement
Agreement").
RECITALS
WHEREAS, the Parties are AGREED that certain relationships between and
among the Parties should be ended and any and all claims or liabilities between
and among them be held for naught; and
WHEREAS, ATSI executed on March 22, 2001 a Pledge Agreement with
Infraestructura; and
WHEREAS, ATSI executed a replacement Pledge Agreement on September 12,
2002; and
WHEREAS, Infraestructura agreed to loan ATSI $250,000; and
WHEREAS, ATSI failed to pay Infraestructura; and
WHEREAS, Infraestructura therefore collected the security interest under
such Agreement consisting of 357,104 shares of old ATSI (ATSI Delaware) treasury
stock; and
WHEREAS, all Parties wish to reach a full and final settlement of all
matters and all causes and potential causes of action arising from any of their
relationships with each other, including any and all disputes or rights or
potential rights between or among the Parties arising from any transactions
between or among them prior to the execution date of this Agreement, and now
desire to set forth their agreement in writing.
CONFIDENTIAL SETTLEMENT AGREEMENT AND MUTUAL RELEASE Page 1
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements set forth herein, and further good and valuable consideration,
the Parties hereby agree and covenant as follows:
1. PAYMENT. As consideration for all amounts owed including any accrued
interest, ATSI shall deliver to Infraestructura 30,000 shares of ATSI's
common stock (Nevada) post-split (the "Payment"). This Payment is subject
to the approval of the Board of Directors whose approval shall be sought as
soon as practicable.
2. RELEASE BY INFRAESTRUCTURA. In consideration of the receipt of the
Payment, Infraestructura, with the intention of binding itself, and its
officers, directors, shareholder, employees, representatives, attorneys-in-fact,
predecessors, successors and assigns, (the "Infraestructura Releasing Parties")
expressly releases, acquits, and discharges ATSI and its respective officers,
directors, shareholders, representatives, attorneys, successors, and assigns
(the "ATSI Released Parties") from all claims, demands, causes of action and
potential claims or causes of action, of whatever nature that the
Infraestructura Releasing Parties may have or claim to have against the ATSI
Released Parties arising from or connected with, directly or indirectly, any and
all claims the Infraestructura Releasing Parties may have or claim to have
against the ATSI Released Parties accruing before the execution date of this
Release. Notwithstanding the foregoing paragraph, the ATSI Released Parties are
not released from the obligations or indemnities set forth in this Settlement
Agreement.
2. RELEASE BY ATSI. In further consideration of the foregoing, ATSI, with
the intention of binding itself and its respective officers, directors,
shareholders, employees, representatives, attorneys-in-fact, predecessors,
successors, assigns, and subsidiaries (the "ATSI Releasing Parties") expressly
release, acquit, and discharge Infraestructura and its officers, directors,
shareholders, representatives, attorneys,
CONFIDENTIAL SETTLEMENT AGREEMENT AND MUTUAL RELEASE Page 2
successors, and assigns, (the "Infraestructura Released Parties") from all
claims, demands, and causes of action or potential claims and causes of action
of whatever nature that the ATSI Releasing Parties may have or claim to have
against the Infraestructura Released Parties arising from or connected with,
directly or indirectly, any relationship or transaction between or among the
Parties, as well as any and all other or potential claims that the ATSI
Releasing Parties may have or claim to have against the Infraestructura Released
Parties accruing before the execution date of this Settlement Agreement.
Notwithstanding the foregoing paragraph, the Infraestructura Released Parties
are not released from the obligations of this Settlement Agreement.
3. NO ADMISSION OF LIABILITY. This settlement and the Payment made hereunder
do not constitute an admission of liability by any Party hereto, and
liability is expressly denied by all Parties.
4. CONFIDENTIALITY. The Parties agree that they will not disclose the terms of
this Settlement Agreement, unless necessary to enforce the terms of this
Settlement Agreement or after receipt of judicial process or lawful discovery
procedures. In the event that any Party is served with notice to disclose such
information by subpoena or otherwise, that Party agrees promptly to notify the
other Parties in writing of such notice. The Party or Parties so notified in
writing shall thereafter undertake the cost and obligation to maintain the
propriety and confidentiality of the terms of such information.
5. NON-DISPARAGEMENT. The Parties agree to use reasonable effort not to
disparage or interfere with any other Party's agreements or prospective
agreements with any third party.
6. ENTIRE AGREEMENT. This Settlement Agreement contains the entire
understanding and agreement of the Parties hereto with respect to the subject
matters herein, and may not be amended or modified in any respect other than in
a writing which specifically refers to this Settlement Agreement and which is
signed by all of the
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Parties hereto.
7. GOVERNING LAW. This Settlement Agreement was negotiated in, and shall be
governed by and construed according to, the laws of the State of Texas. In the
event that any provision herein is deemed not enforceable, the remainder of this
Settlement Agreement will remain unaffected. Venue for any action relating to
the provisions of this Agreement shall be in Bexar County, Texas.
8. NO ASSIGNMENT. By signing this Settlement Agreement, each of the Parties
represents and warrants that it has not assigned or subrogated any of its
claims or potential claims, in whole or in part, to any third party.
9. MODIFICATION AND ATTORNEY'S FEES. This Settlement Agreement shall not be
suspended, amended, or modified in any manner except by an instrument in
writing signed by all Parties to be bound. Should it become necessary to
enforce this Settlement Agreement, or any portion of it, or to declare the
effect of any provision of this Settlement Agreement, the prevailing Party
shall be entitled to recover costs incurred including reasonable attorney's
fees.
10. INFORMED CONSENT. The Parties acknowledge that they have had the
opportunity to consult with their respective attorneys regarding the meaning and
effect of this Settlement Agreement, and that none of the Parties has made any
representations, written or oral, upon which another Party relies in executing
this Settlement Agreement.
11. COUNTERPARTS. This Settlement Agreement may be executed in multiple
counterparts. A set of counterpart copies which collectively contains the
signature and acknowledgment of all Parties shall constitute an original.
EXECUTED by an authorized representative of ATSI Communications, Inc., a
Nevada corporation, on the date written below.
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ATSI COMMUNICATIONS, INC.
By: /s/ Xxxxxx X. Xxxxx
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Its: President and CEO
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Date: October 26, 2004
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EXECUTED by an authorized representative of Infraestructura Espacial, S.A.
de C.V., a Mexican corporation, on the date written below.
INFRAESTRUCTURA ESPACIAL, S.A. DE C.V.
By: /s/ Xxxxx Xxxxxx
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Its: President and CEO
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Date: October 26, 2004
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