ex10_5.htm


    
      

    

    
      Exhibit
        10.5

       

      AGREEMENT
        AND GENERAL RELEASE

      


      This
        Agreement and General Release (“Agreement”) is entered
        into by and between uVuMobile, Inc., a Delaware corporation
        (“uVuMobile”) and Tony Novia
        (“Employee”) (uVuMobile and Employee are collectively referred
        to as the “Parties”) and is effective as of the date
        of execution by both parties (the “Effective
        Date”).

      


      RECITALS

      WHEREAS,
        Employee previously entered into an employment agreement with SmartVideo
        Technologies, Inc. (“SVT”) (the “Prior
        Agreement”); and

       

      WHEREAS,
        the Prior Agreement provided Employee with certain rights and
        obligations with respect to his employment with SVT; and

       

      WHEREAS,
        Employee desires to terminate the Prior Agreement and to waive all rights
        and
        obligations under the Prior Agreement and otherwise against SVT, uVuMobile
        and
        related entities;

       

      NOW,
        THEREFORE, in consideration of the foregoing premises and the mutual
        covenants set forth herein, it is agreed:

       

      AGREEMENT

      


      1.      Consideration
        provided by uVuMobile:  In exchange for the promises and
        Agreements of Employee hereunder, uVuMobile hereby agrees to provide Employee
        with a gross severance payment of $50,000 (the “Severance Payment”), subject to
        withholding of all applicable local, state and federal taxes and subject
        to the
        Company receiving financing in actual funds received and deposited ( the
        “Financing Commitment). The Severance payment shall be payable in the following
        installments: (a) $25,000 payable by the Close of Business on the day following
        the Financing Commitment: (b) the balance payable in five equal monthly
        installments of $5,000 with the first monthly installment being paid on the
        15th day of
        the
        month following the Financial Commitment: (c) and upon receipt of a fully
        executed version of this Agreement, the Company shall grant stock options
        to
        acquire 500,000 shares of uVuMobile’s common stock (each an “Option” and
        collectively the “Options”) under such terms and conditions as provided for
        under the Company’s stock option plan. The stock options shall be priced on the
        date of the grant and shall vest quarterly over a 24 month period and be
        immediately exercisable for 15 months following the grant notwithstanding
        anything to the contrary in the Company’s Stock Incentive
        Plan.  Provided, however, that if the Company does not receive the
        Financing commitment within three (3) months from the date of execution,
        this
        Agreement in its entirety shall be null and void.

      


      2.      Release
        by Employee: In consideration of receipt by Employee of the Options and
        the Severance Payment as provided in Paragraph 1 above, Employee agrees that
        the
        Prior Agreement is hereby terminated and shall no longer be of any force
        or
        effect.  All rights and obligations owing to Employee under the Prior
        Agreement are hereby fully and forever released and discharged by
        Employee.  In addition, but also subject to receipt of the Options and
        the Severance Payment, Employee fully, finally and forever releases and
        discharges uVuMobile, SVT, and each of their employees, agents, directors,
        officers, insurers, attorneys, successors, predecessors and assigns from
        any and all known claims, demands, actions, causes of action, rights,
        obligations, liabilities, debts, suits, damages, attorneys' fees, costs,
        expenses, and losses of every kind and nature whatsoever, whether in law
        or in
        equity, whether in contract, tort, or otherwise, including, but not limited
        to,
        consequential and incidental damages, whether now existing, previously existing,
        or existing in the future, and including, but not limited to, any claim to
        recover salary, benefit or other amounts pursuant to the Prior Agreement
        and/or
        pursuant to any benefit plan or program referenced in the Prior
        Agreement.

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      3.      Release
        by Company: In consideration of the Novia’s forfeiture of certain of
        her severance obligations and other good and valuable consideration given
        herein, Company hereby releases, acquits, withdraws, retracts and forever
        discharges any and all claims, manner of actions, causes of action (in law
        or in
        equity), suits, judgments, debts, liens, contracts, agreements, promises,
        liabilities, demands, damages, losses, costs, expenses or disputes, known
        or
        unknown, fixed or contingent, directly or indirectly, personally or in a
        representative capacity, against Novia by reason of any act, omission, matter,
        cause or thing whatsoever, from the beginning of time up to and including
        the
        date of execution of this Agreement to the extent that such a release is
        permitted as a matter of law.  This general release includes, but is
        not limited to, all claims, manner of actions, causes of action (in law or
        in
        equity), suits or requests for attorneys’ fees and/or costs under the Employee
        Retirement Income Security Act of 1974; Title VII of the Civil Rights Act
        of
        1964 as amended; the Americans with Disabilities Act; the Rehabilitation
        Act of
        1973; the Family and Medical Leave Act; the anti-retaliation provisions of
        the
        Fair Labor Standards Act; the Equal Pay Act; the Pregnancy Discrimination
        Act;
        the Consolidated Omnibus Budget Reconciliation Act (“COBRA”); the Occupational
        Safety and Health Act; the National Labor Relations Act; legal
        malpractice,  42 U.S.C. §§ 1981 through 1988; any federal,
        state or local law regarding retaliation for protected activity or interference
        with protected rights; and any state or local law, including but not limited
        to
        the Georgia AIDS Confidentiality Act; Georgia’s Law Regarding Equal Pay,
        O.C.G.A. § 34-5-1 etseq.; the Georgia Equal Employment for Persons
        with Disabilities Code;  the Georgia Constitution; and all claims
        under Georgia public policy or common law including, but not limited to,
        common
        law claims of outrageous conduct, intentional or negligent infliction of
        emotional distress, negligent hiring, breach of contract, breach of the covenant
        of good faith and fair dealing, promissory estoppel, negligence, wrongful
        termination of employment, interference with employment relationship, civil
        rights, fraud and deceit and all other claims of any type or nature, including
        all claims for damages, wages, compensation, vacation, reinstatement, medical
        expenses, punitive damages, and claims for attorneys’ fees.  The
        Company and Novia intend that this release shall discharge all claims against
        Novia to the full and maximum extent permitted by law.  Company and
        Novia further agree that to the extent that federal law prohibits the waiving
        of
        certain claims as a matter of law, this Agreement is not intended to waive
        any
        such claims.

      


      4.      Assignment:  Employee
        represents and warrants that Employee has not assigned or otherwise transferred
        or subrogated any interest in any claim being released hereunder.

      


      5.      No
        Admission of Liability:  This Agreement is made as a
        compromise of disputed claim or claims and does not constitute an admission
        of
        liability or other obligation on the part of any of the Parties.

      


      6.      Representation
        By Counsel:  The execution of this Agreement by each Party is
        free and voluntary.  The Parties each warrant that they have either
        been represented by, or had an opportunity to consult with,
        counsel.  No promise or inducement to enter into this Agreement,
        except as expressly stated herein, is made by or to any Party.  This
        Agreement contains the entire agreement between the Parties hereto and the
        terms
        hereof supersede all prior discussion.

      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      7.      Modifiability:  This
        Agreement may not be amended except by a writing signed by the Party against
        whom enforcement of such amendment is sought.

      


      8.      Authorization:  Each
        Party has read this Agreement and understands the contents
        hereof.  Each person executing this Agreement on behalf of an entity
        is empowered to do so and thereby binds such entity.

      


      9.      Severance:  If
        any provision of this Agreement is held to be illegal or invalid by a court
        of
        competent jurisdiction, such provisions shall be severed or deleted and neither
        that provision, nor its severance and deletion, will affect the validity
        of the
        remaining provisions.  Any illegal or invalid provision shall be
        reconstrued and limited so as to be valid to the fullest extent permitted
        by
        applicable law and shall only be treated as illegal or invalid to the extent
        it
        is broader than so permitted.

      


      10.    Counterparts:  This
        Agreement may be executed in counterparts and when each Party has signed
        and
        delivered at least one counterpart, each counterpart will be deemed an original
        and, when taken together with the other signed counterparts, will constitute
        one
        agreement which will be binding upon and effective as to all
        Parties.  Facsimile signatures are acceptable.

      


      11.     Specific
        Performance; Attorney’s Fees:  This Agreement may be
        specifically enforced, and injunctive relief may be granted, without the
        posting
        of a bond, to prevent a breach of the Agreement since there is no adequate
        remedy at law.  The prevailing party in any proceeding brought to
        enforce this agreement shall be entitled to an award of its reasonable costs
        and
        expenses, including, without limitation, attorneys’ fees.  Nothing
        contained herein shall prevent either party hereto from seeking to enforce
        its
        rights for a breach of this Agreement.

      


      Executed
        on the dates indicated below.

       

      
        	
                UVUMOBILETM,
                  INC. 

              	 	 	
                TONY
                  NOVIA

              	 
	 	 	 	 	 	 
	 	 	 	 	 	 
	
                By:

              	
                  /s/
                  William J. Loughman

              	 	
                By:

              	
                  /s/
                  Tony Novia

              	 
	 	
                   William
                  J. Loughman

              	 	 	
                   Tony
                  Novia

              	 
	 	 	 	 	 	 
	
                Its:

              	
                  Interim
                  CEO, President and CFO

              	 	
                Its:

              	
                  Senior
                  Vice President

              	 
	 	 	 	 	 	 
	 	
                DATED:
                  November 1, 2007

              	 	 	
                DATED:
                  November 2, 2007