AGREEMENT
EXHIBIT
10.13
AGREEMENT
THIS
AGREEMENT is made and entered into as of this 14th day of April 2006 among
SMARTVIDEO TECHNOLOGIES, INC., a Delaware corporation (the "Company"),
OVT,
Inc., a Georgia corporation ("OVT"),
XXXXXXX X. XXXXXXX, XX., a resident of the State of Georgia ("Xxxxxxx"),
XXXXXX X. XXXXXXX, a resident of the State of Georgia ("Xxxxxxx"),
and
XXXXXXX X. XXXXXXXX, a resident of the State of Florida ("Xxxxxxxx").
The
Company, OVT, Xxxxxxx, Xxxxxxx and Xxxxxxxx are collectively referred to herein
as the “Parties.”
RECITALS
A. Armagh
Group Inc., a predecessor to the Company, OVT, the Company’s wholly-owned
subsidiary, Xxxxxxx, Xxxxxxx and Xxxxxxxx entered into that certain Amended
and
Restated Stock Exchange Agreement dated as of November 19, 2002 (the “Stock
Exchange Agreement”);
B. Pursuant
Section 1.3 of to the Stock Exchange Agreement, in the event OVT's pre-tax
earnings for the fiscal year ended September 30, 2003 were less than $220,000
as
determined in accordance with generally accepted accounting principles, each
of
Xxxxxxx, Xxxxxxx and Xxxxxxxx agreed to forfeit 1,000,000 shares of Series
A
Convertible Preferred Stock, par value $0.001 per share, of Armagh Group, Inc.
(the “Forfeit Shares”), as converted, and the certificates evidencing such
shares were to be delivered to Armagh Group, Inc. for cancellation;
C. OVT's
pre-tax earnings for the fiscal year ended September 30, 2003 were less than
$220,000, but Xxxxxxx, Xxxxxxx and Xxxxxxxx have not forfeited the Forfeit
Shares;
D. Pursuant
to Section 1.2 of the Stock Exchange Agreement, each of Bennett, Walters, and
Xxxxxxxx were to be issued 305,555 shares of common stock of Armagh Group,
Inc.
(“Additional Shares”) on the first anniversary of the Stock Exchange Agreement,
but these shares have not been issued;
E. In
accordance with Section 8.2(a) of the Stock Exchange Agreement, Xxxxxxx, Xxxxxxx
and Xxxxxxxx have the right (“Rescission Right”) to rescind the transaction set
forth in the Stock Exchange Agreement; and
F. The
Parties agree it is in the best interest of all Parties to come to a mutual
understanding regarding the Forfeit Shares, the Additional Shares and the
Rescission Right as set forth herein.
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NOW,
THEREFORE, in consideration of the premises and the mutual representations,
warranties, covenants, and agreements contained herein, the parties hereto,
intending to be legally bound, agree as follows:
ARTICLE
1.
RECITALS
Section
1.1 Recitals.
The
foregoing recitals are hereby acknowledged as true and correct in all material
respects and are incorporated herein by reference.
ARTICLE
2.
FORFEIT
SHARES, ADDITIONAL SHARES AND RESCISSION RIGHT
Section 2.1 Additional
Shares. Xxxxxxx,
Xxxxxxx and Xxxxxxxx hereby waive all rights that each of them has to receive
from the Company, and hereby releases and discharges the Company from any and
all obligations to issue, the Additional Shares.
Section 2.2 Forfeit
Shares. The
Company hereby waives all rights it has to require Xxxxxxx, Xxxxxxx and
Xxxxxxxx, and hereby releases and discharges Xxxxxxx, Xxxxxxx and Xxxxxxxx
from
any and all obligations, to forfeit the Forfeit Shares.
Section
2.3 Rescission
Right.
In
consideration of the Company’s waiver of its rights to require Xxxxxxx, Xxxxxxx
and Xxxxxxxx to forfeit the Forfeit Shares pursuant to Section 1.3 of the Stock
Exchange Agreement, each of Xxxxxxx, Xxxxxxx and Xxxxxxxx hereby waives all
rights each of them has to rescind the transaction set forth in the Stock
Exchange Agreement.
ARTICLE
3.
REPRESENTATIONS
AND WARRANTIES OF
OVT AND THE COMPANY
OVT
and
the Company each jointly and severally represents and warrants to Xxxxxxx,
Xxxxxxx and Xxxxxxxx that:
Section 3.1 Organization
and Qualification.
(a) OVT
is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Georgia.
(b) The
Company is a corporation duly organized, validly existing, and in good standing
under the laws of the State of Delaware.
Section 3.2 Authority. The
execution, delivery, and performance of this Agreement hereby by OVT and the
Company has been duly and validly authorized and approved by the Board of
Directors and any other necessary action on the part of OVT and the Company,
respectively. This Agreement is the legal, valid, and binding obligation of
OVT
and the Company, enforceable against OVT and the Company in accordance with
its
terms.
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ARTICLE
4.
GENERAL
PROVISIONS
Section 4.1 Assignment
and Binding Effect. This
Agreement shall not be assigned by any of the Parties without the express prior
written consent of the other Parties. This Agreement shall be binding upon
the
Parties when this Agreement is signed by or on behalf of each Party and an
original signed Agreement is delivered to each party.
Section 4.2 No
Benefit to Others. The
representations, warranties, covenants, and agreements contained in this
Agreement are for the sole benefit of the Parties, and their heirs, executors,
administrators, legal representatives, successors, and assigns and they shall
not be construed as conferring any rights on any other persons, or limiting
any
rights of any Party against any other person or entity.
Section 4.3 Headings,
Gender, and Person. All
section headings contained in this Agreement are for convenience of reference
only, do not form a part of this Agreement, and shall not affect in any way
the meaning or interpretation of this Agreement. Words used herein, regardless
of the number and gender specifically used, shall be deemed and construed to
include any other number, singular or plural, and any other gender, masculine,
feminine, or neuter, as the context requires.
Section 4.4 Counterparts. This
Agreement may be executed in two or more counterparts, all of which shall be
considered one and the same agreement and shall become effective when each
counterpart has been signed by each party and delivered to the other party
hereto.
Section 4.5 Integration
of Agreement. This
Agreement supersedes all prior agreements, oral and written, between the parties
hereto with respect to the subject matter hereof. Neither this Agreement, nor
any provision hereof, may be changed, waived, discharged, supplemented, or
terminated orally, but only by an agreement in writing signed by the party
against which the enforcement of such change, waiver, discharge, or termination
is sought.
Section 4.6 Governing
Law. The
construction and interpretation of this Agreement shall at all times and in
all
respects be governed by the laws of the State of Delaware without regard to
its
rules of conflicts of laws.
Section
4.7 Consent
to Jurisdiction and Venue.
(a) EACH
OF
THE PARTIES HERETO HEREBY CONSENTS TO THE JURISDICTION OF THE DISTRICT COURT
COVERING WILMINGTON, DELAWARE OR THE COURT OF CHANCERY OF THE STATE OF DELAWARE,
AS WELL AS TO THE JURISDICTION OF ALL COURTS TO WHICH AN APPEAL MAY BE TAKEN
FROM SUCH COURTS, FOR THE PURPOSE OF ANY SUIT, ACTION OR OTHER PROCEEDING
ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY. EACH PARTY HEREBY EXPRESSLY WAIVES ANY AND ALL RIGHTS
TO
BRING ANY SUIT, ACTION OR OTHER PROCEEDING IN OR BEFORE ANY COURT OR TRIBUNAL
OTHER THAN THE COURTS DESCRIBED ABOVE AND COVENANTS THAT IT SHALL NOT SEEK
IN
ANY MANNER TO RESOLVE ANY DISPUTE OTHER THAN AS SET FORTH IN THIS SECTION OR
TO
CHALLENGE OR SET ASIDE ANY DECISION, AWARD OR JUDGMENT OBTAINED IN ACCORDANCE
WITH THE PROVISIONS HEREOF.
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(b) EACH
OF
THE PARTIES HERETO HEREBY EXPRESSLY WAIVES ANY AND ALL OBJECTIONS IT MAY HAVE
TO
VENUE, INCLUDING, WITHOUT LIMITATION, THE INCONVENIENCE OF SUCH FORUM, IN ANY
OF
SUCH COURTS. IN ADDITION, EACH OF THE PARTIES CONSENTS TO THE SERVICE OF PROCESS
BY PERSONAL SERVICE OR ANY MANNER IN WHICH NOTICES MAY BE DELIVERED HEREUNDER
IN
ACCORDANCE WITH SECTION 4.7 OF THIS AGREEMENT.
Section
4.7 Notices.
All
notices, requests, claims, demands and other communications hereunder shall
be
in writing and shall be given or made (and shall be deemed to have been duly
given or made) upon the earlier to occur of (a) receipt, if made by personal
service, (b) three days after delivery, if made by reputable overnight courier
service, (c) upon the delivering Party’s receipt of a written confirmation of a
transmission made by cable, telecopy, by telegram, or by telex or (d) seven
days
after being mailed by registered or certified mail (postage pre-paid, return
receipt requested) to the respective Parties at the addresses set forth under
each Party’s name on the signature page hereto.
Section
4.8 Attorneys’
Fees.
If any
legal action or other proceeding is brought for the enforcement of this
Agreement, or because of an alleged dispute, breach, default misrepresentation
in connection with any of the provisions of this Agreement, the prevailing
Party
shall be entitled reasonable attorneys’ fee and any other costs incurred in that
action or proceeding, in addition to any other relief to which it may be
entitled.
Section 4.9 Construction. The
Parties have participated jointly in the negotiation and drafting of this
Agreement. In the event of an ambiguity or question of intent or interpretation
arises, this Agreement shall be construed as if drafted jointly by the Parties
and no presumption or burden of proof shall arise favoring or disfavoring any
Party by virtue of the authorship of any of the provisions of this Agreement.
Section
4.10 Counterparts.
This
Agreement may be executed in one or more counterparts and by the different
Parties in separate counterparts, each of which when executed shall be deemed
to
be an original but all of which taken together shall constitute one and the
same
agreement.
{signature
page to follow}
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IN
WITNESS WHEREOF, each Party has caused this Agreement to be executed all as
of
the day and year first above written.
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SMARTVIDEO
TECHNOLOGIES, INC.:
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By:
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/s/
Xxxxxxx X. Xxxxxxx,
Xx.
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Xxxxxxx
X. Xxxxxxx, Xx., CEO
0000
Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx,
XX 00000
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OVT,
INC.:
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By:
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/s/
Xxxxxxx X. Xxxxxxx,
Xx.
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Xxxxxxx
X. Xxxxxxx, Xx., President
0000
Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx,
XX 00000
/s/
Xxxxxxx X. Xxxxxxx,
Xx.
Xxxxxxx
X. Xxxxxxx, Xx.
c/o
SmartVideo Technologies, Inc.
0000
Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx,
XX 00000
/s/
Xxxxxx X.
Xxxxxxx
Xxxxxx
X. Xxxxxxx
0000
Xxxxxx Xxxx Xxxxx
Xxxxxx,
XX 00000
/s/
Xxxxxxx X.
Xxxxxxxx
Xxxxxxx
X. Xxxxxxxx
c/o
SmartVideo Technologies, Inc.
0000
Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx,
XX 00000
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