INNERLOOP DEBT SETTLEMENT AGREMEENT THIS AGREEMENT MADE EFFECTIVE AS OF THE 15th day of March, 2005 (the “Effective Date”).
Exhibit
10.64
INNERLOOP
DEBT SETTLEMENT AGREMEENT
THIS
AGREEMENT MADE EFFECTIVE AS OF THE 15th day of
March, 2005 (the “Effective Date”).
| BETWEEN: | Moving Bytes Inc., a corporation duly incorporated under the Canada Business Corporations Act (the “Corporation”), of ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇. ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; |
| AND: | Innerloop Mobile Communications Inc., a corporation duly incorporated under the laws of Norway, of ▇▇▇▇▇▇ Linges ▇▇▇ #▇▇, (▇▇▇.▇.▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇), ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ (“Innerloop”). |
WHEREAS:
A.
On
October 22, 2004, Innerloop subscribed to a convertible note (the “Note”) of the
Corporation and, subject to the terms and conditions of this Agreement,
Innerloop agrees to cancels the Note and all principal and accrued interest
owing on the Note, waives all of its rights under the Note and agrees to a full,
complete and irrevocable release of all of the Corporation’s obligations under
the Note; and
B.
On
October 22, 2004, Innerloop and certain current and former officers and
directors of the Corporation J. ▇▇▇▇ Mustad, ▇▇▇▇ ▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇, (jointly
and severally, the “Directors”), entered into agreements whereunder the
Directors optioned restricted common stock to Innerloop in connection with the
Note (the “Director’s Option Agreements”) and subject to the terms and
conditions of individual agreements with each of the Directors which are to be
entered into concurrent with this Agreement (the “Director’s Option Termination
Agreements”) is terminating the Director’s Option Agreements.
NOW,
THEREFORE, THIS AGREEMENT WITNESSES that in consideration of the mutual
covenants and agreements herein contained, the receipt of which is hereby
acknowledged, the parties covenant and agree with each other as
follows:
| 1. |
Issuance
of Restricted Common Stock.
The Corporation will issue to Innerloop or its designees Four Million Five
Hundred Thousand (4,500,000) shares of restricted common stock, subject to
its designees completing any and all documentation as may be requested by
the Corporation in order for the Corporation to comply with U.S.
securities laws including Regulation S, promulgated under the Securities
Act of 1933. Innerloop will provide the Corporation with a list of its
designees, if any, prior to the Corporation issuing any shares hereunder
and the Corporation shall not be obligated to issue any shares to any
individual designee until such time as that designee shall have completed
any and all documentation as may be requested by the
Corporation. |
| 2. |
Release
of Interest in Note.
Innerloop hereby releases and waives all rights to any and all of the
interest that Innerloop possesses in the Note or under any documents or
instruments related thereto, whether tangible or intangible, including,
but not limited to, the principal amount of the Note and all accrued
interest thereunder, all first rights of refusal on future security
issuances of the Corporation and its right to appoint any directors to the
Corporation’s board of directors. Innerloop further agrees and
acknowledges that to the extent the Note provided Innerloop with any
rights whatsoever, those rights are hereby waived and
extinguished. |
| 3. |
Release
of Interest in Director’s Options Agreements.
Innerloop hereby releases and waives all rights to any and all of the
interest that Innerloop possesses in the Director’s Option Agreements,
whether tangible or intangible, including but not limited to, its rights
to purchase restricted common stock from the Directors. Innerloop further
agrees and acknowledges that to the extent the Director’s Option
Agreements provided Innerloop with any rights whatsoever, those rights are
hereby waived and extinguished and Innerloop agrees concurrently with the
execution of this Agreement to enter into Director’s Option Termination
Agreements with each of the Directors which are attached as Exhibit A,
Exhibit B, and Exhibit C, hereto. |
| 4. |
Assignment.
Except as expressly provided for in Section 1 hereto, Innerloop shall not
assign its rights hereunder and this Agreement shall be binding upon and
benefit the successor, assigns, heirs ands administrators and transferees
of the parties. |
| 5. |
Waiver
and Amendment.
No amendment to this Agreement will be valid or binding unless set forth
in writing and duly executed by all of the parties hereto. No waiver of
any breach of any provision of this Agreement will be effective or binding
unless made in writing and signed by the party purporting to give the same
and, unless otherwise provided in the written waiver, will be limited to
the specific breach waived. |
| 6. |
Notices.
Except as otherwise expressly set forth herein, any notice, request or
other communication required or permitted hereunder shall be in writing
and shall be deemed to have been duly given if personally delivered or if
faxed with confirmation of receipt by telephone or if mailed be registered
or certified mail or by courier, to the respective the addresses of the
parties as set for the hereinabove. Any party hereto may by notice so
given change its address for future notice hereunder. Notice shall
conclusively be deemed to have been given when personally delivered, faxed
or when deposited in the mail in the manner set forth above and shall be
deemed to have been received when
delivered. |
| 7. |
No
Stockholder Rights.
Nothing contained in this Agreement shall be construed as conferring upon
Innerloop or any other person the right to vote or to consent or to
receive notice as a stockholder in respect of stockholders for the
election of directors of the Corporation or any other matters or any
rights whatsoever as a stockholder of the Corporation, except as may be
conferred on a stockholder subsequent to the issuance of shares under
Section 1 hereto. |
| 8. |
Board
Approval of Corporation and Innerloop.
Both the Corporation and Innerloop represent that their respective boards
of directors have approved this Agreement and the exhibits
hereto. |
| 9. |
Costs.
Each party shall be responsible for its own costs with respect to the
preparation, delivery and enforcement of this
Agreement. |
| 10. |
Counterparts.
This Agreement may be executed in one or more counterparts and by
facsimile, all of which shall be deemed one and the same
agreement. |
| 11. |
Governing
Law.
The contract arising out of the acceptance of this subscription by the
Corporation shall be construed, enforced, and administered in accordance
with the laws of the state of California, under the jurisdiction of
California, without giving effect to any provision thereof that would
compel the application of the substantive laws of any other jurisdiction
and without regard to the conflicts of law provisions. This Agreement
represents the entire agreement of the parties hereto relating to the
subject matter hereof. |
| 12. |
Headings;
References.
All headings used herein are for convenience only and shall not be used to
construe or interpret this Agreement. Except as where otherwise indicated,
all reference here to Sections refer to Sections
hereof. |
IN
WITNESS WHEREOF this agreement has been executed as of the day and year first
above written.
Innerloop
Mobile Communications, A.S.
/s/
▇▇▇▇
Ektvedt
▇▇▇▇
EKTVEDT
Director
/s/
▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇
Director
/s/
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇.
▇▇▇▇▇
President
and Chief Financial Officer
/s/ J.
▇▇▇▇ Mustad
J. ▇▇▇▇
Mustad
Chief
Executive Officer
EXHIBIT
A
MUSTAD
DIRECTOR’S OPTION TERMINATION AGREEMENT
THIS
document sets forth an agreement made and entered into effective as of March 15,
2005 (the “Effective Date”) by and between,
Innerloop
Mobile Communications, A.S., a company duly incorporated in Norway of ▇▇▇▇▇▇
Linges ▇▇▇ #▇▇ (▇▇▇.▇.▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇), ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ (“Optionee”), and
J. ▇▇▇▇
Mustad, an individual of ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
(“Stockholder”)
WHEREAS:
| A. |
the
Optionee and the Stockholder entered into an agreement dated November 1,
2004 wherein the Stockholder optioned to the Optionee, through April 15,
2005, the purchase of Five Million Seven Hundred Fourteen Thousand Two
Hundred Eighty Six (5,714,286) shares of restricted common stock of Moving
Bytes Inc. (the “Shares”), (the “Option Agreement”),
and |
| B. |
The
Optionee has not exercised any of its rights under the Option Agreement to
purchase the Shares, and |
| C. |
the
Optionee and the Stockholder desire to terminate the Option Agreement,
|
NOW
THEREFORE, in consideration of the covenants and agreements herein and the
payment of $1 made by each party to the other, and other good and valuable
consideration, the receipt and sufficiency of which is acknowledged by each
party, the parties agree as follows:
| 1) |
Termination
of Option Agreement. |
| a) |
Upon
the terms and subject to the conditions set forth herein, the Optionee and
the Stockholder hereby agree to terminate the Option Agreement,
and |
| b) |
As
of the Effective Date of this Agreement neither the Optionee nor the
Stockholder have any further obligation to the other party under the
Option Agreement. Optionee hereby irrevocably releases and waives all
rights to any and all of the interest in the Option Agreement, whether
tangible or intangible, including, but not limited to, its rights to
purchase restricted common stock from Stockholder. Optionee further agrees
and acknowledges that to the extent the Option Agreement provided Optionee
with any rights whatsoever, those rights are hereby waived and
extinguished |
| 2) |
Miscellaneous. |
| a) |
If
one or more of the provisions contained herein shall for any reason be
held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other
provisions hereof, and this Agreement shall be construed as if such
invalid, illegal or unenforceable provision had never been contained
herein. |
| b) |
Waiver
of any default shall not constitute waiver of any other or subsequent
default. |
| c) |
Except
as otherwise expressly set forth herein, any notice, request or other
communication required or permitted hereunder shall be in writing and
shall be deemed to have been duly given if personally delivered or if
faxed with confirmation of receipt by telephone or if mailed be registered
or certified mail or by courier, to the respective the addresses of the
parties as set for the hereinabove. Any party hereto may by notice so
given change its address for future notice hereunder. Notice shall
conclusively be deemed to have been given when personally delivered, faxed
or when deposited in the mail in the manner set forth above and shall be
deemed to have been received when
delivered. |
| d) |
This
Agreement may be executed in one or more counterparts and by facsimile,
all of which shall be deemed one and the same
agreement. |
| e) |
No
amendment to this Agreement will be valid or binding unless set forth in
writing and duly executed by all of the parties hereto. No waiver of any
breach of any provision of this Agreement will be effective or binding
unless made in writing and signed by the party purporting to give the same
and, unless otherwise provided in the written waiver, will be limited to
the specific breach waived. |
| f) |
The
division of this Agreement into Articles and Sections and the insertion of
headings are for the convenience of reference only and will not affect the
construction or interpretation of this
Agreement. |
| g) |
This
agreement shall be construed, enforced, and administered in accordance
with the laws of the State of California, under the jurisdiction of the
State of California, without giving effect to any provision thereof that
would compel the application of the substantive laws of any other
jurisdiction and without regard to the conflicts of law provisions.
|
| h) |
This
Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof and cancels and supersedes any prior
understandings and agreements between the parties. There are no
representations, warranties, forms, conditions, undertakings or collateral
agreements, express, implied or statutory between the parties other than
as expressly set forth in this Agreement. |
IN
WITNESS WHEREOF, this Option Agreement has been executed by the parties as of
the date first above written.
Innerloop
Mobile Communications, A.S.
/s/
▇▇▇▇ Ektvedt
▇▇▇▇
Ektvedt
Director
/s/
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇
Director
/s/ J.
▇▇▇▇ Mustad
J. ▇▇▇▇
Mustad
EXHIBIT
B
▇▇▇▇▇
DIRECTOR’S OPTION TERMINATION AGREEMENT
THIS
document sets forth an agreement made and entered into effective as of March 15,
2005 (the “Effective Date”) by and between,
Innerloop
Mobile Communications, A.S., a company duly incorporated in Norway of ▇▇▇▇▇▇
Linges ▇▇▇ #▇▇ (▇▇▇.▇.▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇), ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ (“Optionee”), and
▇▇▇▇
▇▇▇▇▇, an individual of ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇, ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
(“Stockholder”)
WHEREAS:
| A. |
the
Optionee and the Stockholder entered into an agreement dated November 1,
2004 wherein the Stockholder optioned to the Optionee, through April 15,
2005, the purchase of Three Million Five Hundred Seventy One Thousand Four
Hundred Twenty Eight (3,571,428) shares of restricted common stock of
Moving Bytes Inc. (the “Shares”), (the “Option Agreement”),
and |
| B. |
The
Optionee has not exercised any of its rights under the Option Agreement to
purchase the Shares, and |
| C. |
the
Optionee and the Stockholder desire to terminate the Option Agreement,
|
NOW
THEREFORE, in consideration of the covenants and agreements herein and the
payment of $1 made by each party to the other, and other good and valuable
consideration, the receipt and sufficiency of which is acknowledged by each
party, the parties agree as follows:
| 1) |
Termination
of Option Agreement. |
| a) |
Upon
the terms and subject to the conditions set forth herein, the Optionee and
the Stockholder hereby agree to terminate the Option Agreement,
and |
| b) |
As
of the Effective Date of this Agreement neither the Optionee nor the
Stockholder have any further obligation to the other party under the
Option Agreement. Optionee hereby irrevocably releases and waives all
rights to any and all of the interest in the Option Agreement, whether
tangible or intangible, including but not limited to, its rights to
purchase restricted common stock from Stockholder. Optionee further agrees
and acknowledges that to the extent the Option Agreement provided Optionee
with any rights whatsoever, those rights are hereby waived and
extinguished |
| 2) |
Miscellaneous. |
| a) |
If
one or more of the provisions contained herein shall for any reason be
held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other
provisions hereof, and this Agreement shall be construed as if such
invalid, illegal or unenforceable provision had never been contained
herein. |
| b) |
Waiver
of any default shall not constitute waiver of any other or subsequent
default. |
| c) |
Except
as otherwise expressly set forth herein, any notice, request or other
communication required or permitted hereunder shall be in writing and
shall be deemed to have been duly given if personally delivered or if
faxed with confirmation of receipt by telephone or if mailed be registered
or certified mail or by courier, to the respective the addresses of the
parties as set for the hereinabove. Any party hereto may by notice so
given change its address for future notice hereunder. Notice shall
conclusively be deemed to have been given when personally delivered, faxed
or when deposited in the mail in the manner set forth above and shall be
deemed to have been received when
delivered. |
| d) |
This
Agreement may be executed in one or more counterparts and by facsimile,
all of which shall be deemed one and the same
agreement. |
| e) |
No
amendment to this Agreement will be valid or binding unless set forth in
writing and duly executed by all of the parties hereto. No waiver of any
breach of any provision of this Agreement will be effective or binding
unless made in writing and signed by the party purporting to give the same
and, unless otherwise provided in the written waiver, will be limited to
the specific breach waived. |
| f) |
The
division of this Agreement into Articles and Sections and the insertion of
headings are for the convenience of reference only and will not affect the
construction or interpretation of this
Agreement. |
| g) |
This
agreement shall be construed, enforced, and administered in accordance
with the laws of the State of California, under the jurisdiction of the
State of California, without giving effect to any provision thereof that
would compel the application of the substantive laws of any other
jurisdiction and without regard to the conflicts of law provisions.
|
| h) |
This
Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof and cancels and supersedes any prior
understandings and agreements between the parties. There are no
representations, warranties, forms, conditions, undertakings or collateral
agreements, express, implied or statutory between the parties other than
as expressly set forth in this Agreement. |
IN
WITNESS WHEREOF, this Option Agreement has been executed by the parties as of
the date first above written.
Innerloop
Mobile Communications, A.S.
/s/
▇▇▇▇ Ektvedt
▇▇▇▇
Ektvedt
Director
/s/
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇
Director
/s/
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇
EXHIBIT
C
▇▇▇▇▇▇
DIRECTOR’S OPTION TERMINATION AGREEMENT
THIS
document sets forth an agreement made and entered into effective as of March 15,
2005 (the “Effective Date”) by and between,
Innerloop
Mobile Communications, A.S., a company duly incorporated in Norway of ▇▇▇▇▇▇
Linges ▇▇▇ #▇▇ (▇▇▇.▇.▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇), ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ (“Optionee”), and
▇▇▇
▇▇▇▇▇▇, an individual of ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ (“Stockholder”)
WHEREAS:
| A. |
Optionee
and the Stockholder entered into an agreement dated November 1, 2004
wherein the Stockholder optioned to the Optionee, through April 15, 2005,
the purchase of One Million Four Hundred Twenty Eight Thousand Five
Hundred Seventy Two (1,428,572) shares of restricted common stock of
Moving Bytes Inc. (the “Shares”), (the “Option Agreement”),
and |
| B. |
The
Optionee has not exercised any of its rights under the Option Agreement to
purchase the Shares, and |
| C. |
the
Optionee and the Stockholder desire to terminate the Option Agreement,
|
NOW
THEREFORE, in consideration of the covenants and agreements herein and the
payment of $1 made by each party to the other, and other good and valuable
consideration, the receipt and sufficiency of which is acknowledged by each
party, the parties agree as follows:
| 1) |
Termination
of Option Agreement. |
| a) |
Upon
the terms and subject to the conditions set forth herein, the Optionee and
the Stockholder hereby agree to terminate the Option Agreement,
and |
| b) |
As
of the Effective Date of this Agreement neither the Optionee nor the
Stockholder have any further obligation to the other party under the
Option Agreement. Optionee hereby irrevocably releases and waives all
rights to any and all of the interest in the Option Agreement, whether
tangible or intangible, including but not limited to, its rights to
purchase restricted common stock from Stockholder. Optionee further agrees
and acknowledges that to the extent the Option Agreement provided Optionee
with any rights whatsoever, those rights are hereby waived and
extinguished |
| 2) |
Miscellaneous. |
| a) |
If
one or more of the provisions contained herein shall for any reason be
held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other
provisions hereof, and this Agreement shall be construed as if such
invalid, illegal or unenforceable provision had never been contained
herein. |
| b) |
Waiver
of any default shall not constitute waiver of any other or subsequent
default. |
| c) |
Except
as otherwise expressly set forth herein, any notice, request or other
communication required or permitted hereunder shall be in writing and
shall be deemed to have been duly given if personally delivered or if
faxed with confirmation of receipt by telephone or if mailed be registered
or certified mail or by courier, to the respective the addresses of the
parties as set for the hereinabove. Any party hereto may by notice so
given change its address for future notice hereunder. Notice shall
conclusively be deemed to have been given when personally delivered, faxed
or when deposited in the mail in the manner set forth above and shall be
deemed to have been received when
delivered. |
| d) |
This
Agreement may be executed in one or more counterparts and by facsimile,
all of which shall be deemed one and the same
agreement. |
| e) |
No
amendment to this Agreement will be valid or binding unless set forth in
writing and duly executed by all of the parties hereto. No waiver of any
breach of any provision of this Agreement will be effective or binding
unless made in writing and signed by the party purporting to give the same
and, unless otherwise provided in the written waiver, will be limited to
the specific breach waived. |
| f) |
The
division of this Agreement into Articles and Sections and the insertion of
headings are for the convenience of reference only and will not affect the
construction or interpretation of this
Agreement. |
| g) |
This
agreement shall be construed, enforced, and administered in accordance
with the laws of the State of California, under the jurisdiction of the
State of California, without giving effect to any provision thereof that
would compel the application of the substantive laws of any other
jurisdiction and without regard to the conflicts of law provisions.
|
| h) |
This
Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof and cancels and supersedes any prior
understandings and agreements between the parties. There are no
representations, warranties, forms, conditions, undertakings or collateral
agreements, express, implied or statutory between the parties other than
as expressly set forth in this Agreement. |
IN
WITNESS WHEREOF, this Option Agreement has been executed by the parties as of
the date first above written.
Innerloop
Mobile Communications, A.S.
/s/
▇▇▇▇ Ektvedt
▇▇▇▇
Ektvedt
Director
/s/
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇
Director
/s/
▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇