SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS
Exhibit
10.6 Xxxxx
Settlement Agreement and Release of Claims
THIS
SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS
(“Agreement”) is made by and among XXXXX
XXXXX (“Xxxxx”),
VoIP,
INC., and
all
of its subsidiaries and affiliated companies (collectively hereafter known
as
“VoIP” or “the Company”) and shall become effective on the Effective Date as set
forth herein.
RECITALS
WHEREAS,
heretofore the parties have previously entered into a Merger Agreement, whereby
Caerus, Inc. merged with VoIP dated May 31, 2005 (the “Merger Agreement”);
WHEREAS,
XXXXX
claims VoIP violated certain terms of the Merger Agreement;
WHEREAS,
as part
of the transaction consummated by the Merger Agreement, VoIP entered into an
Employment Agreement with XXXXX dated May 27, 2005, which was subsequently
amended on July 28, 2006 and again on September 14, 2006 (the “Employment
Agreement”);
WHEREAS,
XXXXX
claims that VoIP has breached certain provisions of the Employment Agreement;
WHEREAS,
XXXXX
has claimed damages and lost value of $1,594,768 for violations and/or breaches
of the Merger Agreement and Employment Agreement;
WHEREAS,
the
parties hereto desire to settle, fully, finally and amicably, all claims against
each other, including, but not limited to both the Merger and Employment
Agreements;
WHEREAS,
VoIP
has previously granted XXXXX 3,000,000 stock options under an Option Agreement
dated November 5, 2006 (the “Agreement”).
NOW,
THEREFORE,
in
order to provide said benefits and, in consideration of the mutual promises,
covenants and representations set forth below and other good and valuable
consideration, the parties agree as follows:
1. XXXXX
Claims
a. Pursuant
to this Agreement, XXXXX agrees to settle all of his claims against VoIP with
respect to VoIP’s obligation to file a registration statement for approximately
600,000 shares of common stock of VoIP by June 30, 2005, and damages in the
sum
of $1,594,768, as a result of the XXXXX’x inability to sell on the open market,
as a direct and indirect result of VoIP’s failure to register said shares of
VoIP common stock.
b. The
Company acknowledges that, while it filed a Registration Statement for the
shares issued to XXXXX, the Registration Statement was not declared effective
by
the Securities and Exchange Commission, and that XXXXX sustained market loss
damages in the sum of $1,594,768.
x. XXXXX
agrees that he has received the sum of $1,080,000, as consideration paid to
him
by the Company for settlement claims and general release of the Company, as
well
as for the payment of all of his legal expenses related to his claims, and
that
said sum will be a credit toward the exercise price of all the options granted
to XXXXX by the Company under the Agreement.
x. XXXXX
understands that the within credit of $1,080,000 is subject to all applicable
income and payroll taxes that may be imposed in connection with the settlement
herein, and that XXXXX will be responsible for payment of said taxes.
e. The
Company agrees that it will assist XXXXX in the filing of any and all beneficial
ownership reports required to be filed, pursuant to the Securities Exchange
Act
of 1934, as amended.
2. No
Other Claims
XXXXX
represents and warrants that he has not filed against VoIP or any of its
representatives, any claim, complaint, charge or suit, with any federal, state
or other agency, court, board, office or other forum or entity as of the
Effective Date, and that he will continue in the employ of the Company as its
Chief Technology Officer.
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3. General
Release
a. As
a
material inducement to VoIP to enter into this Agreement, XXXXX, on behalf
of
himself and his heirs, executors, administrators, successors and assigns, does
hereby irrevocably and unconditionally release, acquit and forever discharge
VoIP, and its divisions, subsidiaries, affiliates and all owners, stockholders,
predecessors, successors, assigns, agents, directors, officers, employees,
representatives, and attorneys, acting by, through, under or in concert with
VoIP or any parent, subsidiary or related entity, from any and all charges,
complaints, grievances, claims, liabilities, obligations, promises, agreements,
controversies, damages, actions, causes of action, suits, rights, demands,
costs, losses, debts and expenses (including attorneys’ fees and costs actually
incurred), of any nature whatsoever, known or unknown, suspected or unsuspected,
joint or several, which VoIP has had or may hereafter claim to have had, against
VoIP by reason of any matter, act, omission, cause or event whatever from the
beginning of time. XXXXX agrees that this waiver and release does not apply
to
any rights or claims that may arise under the ADEA after the Effective Date
of
this Agreement. XXXXX acknowledges that the consideration given for this waiver
and Release Agreement is in addition to anything of value to which XXXXX was
already entitled. XXXXX further acknowledges that he has been advised by this
writing that he should consult with an attorney prior
to
executing this Agreement.
This
release and waiver of Claims specifically includes, but without limiting the
foregoing general terms, the following: Any and all Claims which might have
been
asserted by XXXXX in any suit, claim, or charge, for or on account of any matter
or things whatsoever that has occurred up to and including the date of this
Agreement, under any and all laws, statutes, orders, regulations, or any Claim
in contract or tort.
4. Other
Relief
The
parties agree that any dispute, controversy or claim between the parties arising
out of, or relating to this Agreement, or any breach or asserted breach thereof,
shall be determined and settled by arbitration in accordance with the rules
of
the American Arbitration Association in effect at the time the arbitration
commences. The prevailing party in such arbitration shall be entitled to its
reasonable costs and expenses (including reasonable attorneys’ fees) in such
arbitration as part of the award. Judgment on the award may be entered in any
court having jurisdiction thereof, and the parties specifically reserve all
rights to appeal such judgment as if it were rendered in a court of
law.
5. Binding
Agreement
This
Agreement shall be binding upon XXXXX and VoIP and their respective heirs,
administrators, representatives, executors, successors and assigns and shall
inure to the benefit of the parties hereto and their representatives, and each
of them, and to their heirs, administrators, representatives, executors,
successors and assigns.
6. Attorneys’
Fees
Each
party agrees to pay its own costs and attorneys’ fees incurred in achieving the
settlement and release of this matter. If any party defaults under the terms
of
this Agreement, and the other party employs an attorney to enforce or interpret
the terms of this Agreement, or to obtain a declaration of rights under this
Agreement, whether or not legal proceedings are commenced, then such other
party
shall be entitled to recover, from the defaulting party, all attorneys’ fees,
costs and expenses incurred. If a party commences an action against the other
to
enforce or interpret the terms of this Agreement, or to obtain a declaration
of
rights under this Agreement, the prevailing party shall be entitled to all
attorneys’ fees, costs and expenses incurred in such action or any appeal or
enforcement of such action.
7. Non-Reliance
Other
than as expressly set forth in this Agreement, XXXXX and VoIP represent and
acknowledge that, in executing this Agreement, they did not rely upon, and
they
have not relied upon any representation nor statement made by any of the parties
hereto or by any of their agents, representatives or attorneys with regard
to
the subject matter, basis or effect of this Agreement or otherwise.
8. Agreement
Obligates, Extends and Inures
The
provisions of this Agreement shall be deemed to obligate, extend and inure
to
the benefit of the legal successors, assigns, transferees, grantees, heirs,
shareholders, officers and directors of each signatory party hereto, and to
those who may assume any or all of the above-described capacities subsequent
to
the execution and Resignation Date of this Agreement.
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9. Non-Admission
of Liability
This
Agreement shall not in any way be construed as an admission by VoIP that it
has
acted in any manner in violation of the common law or in violation of any
federal, state or local statute or regulation.
10. Method
of Execution
This
Agreement may be executed in counterparts and each counterpart shall be deemed
a
duplicate original.
11. Applicable
Law
This
Agreement is deemed to have been made and entered into in the State of Texas
and
shall, in all respects, be interpreted, enforced and governed under the laws
of
said State. The language of all parts of this Agreement shall in all causes
be
construed as a whole, according to its fair meaning, and not strictly for or
against any of the parties.
12. Severability
The
provisions of this Agreement are severable, and should any provision of this
Agreement be declared or be determined by any arbitrator or court to be illegal
or invalid, any such provision shall be stricken, and the validity of the
remaining parts, terms or provisions shall not be affected.
13. Entire
Agreement
This
Agreement sets forth the entire agreement between the parties and fully
supersedes any and all prior agreements or understandings between the parties
pertaining to the same subject matter, further, this Agreement may not be
changed except by explicit written agreement by the parties hereto.
14. Notices
All
notices under this Agreement are to be in writing and delivered by overnight
courier and are deemed effective upon receipt.
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If
to
VoIP at:
000
Xxxxxx Xxxx, Xxxxx 0000
Xxxxxxxxx
Xxxxxxx, XX 00000
with
a
copy to:
Xxxxxxx,
Xxxxxxx & Xxxxxx LLP at:
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
If
to
XXXXX at:
with
a
copy to:
Xxxxxxxxx
Xxxxx, Esq. at:
The
parties further acknowledge that this Agreement has been entered into without
fraud, duress, undue influence or mistake, and that upon the Effective Date,
that this Agreement is not subject to rescission.
VoIP, INC. | ||
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By: | /s/ Xxxxx Xxxxx | |
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