Attached files
| file | filename |
|---|---|
| 10-K - GetFugu, Inc. | v181168_10k.htm |
| EX-31 - GetFugu, Inc. | v181168_ex31.htm |
| EX-32 - GetFugu, Inc. | v181168_ex32.htm |
| EX-99 - GetFugu, Inc. | v181168_ex99.htm |
| EX-3.2 - GetFugu, Inc. | v181168_ex3-2.htm |
| EX-3.1 - GetFugu, Inc. | v181168_ex3-1.htm |
SUPERIOR
COURT OF THE STATE OF CALIFORNIA
FOR THE
COUNTY OF LOS ANGELES, CENTRAL DISTRICT
|
Hutton
International Investments, Ltd.,
Plaintiff,
v.
GetFugu,
Inc.,
Defendant.
|
Case
No. BC 434865
Assigned
For All Purposes To:
Hon.
Ernest Hiroshige, Dept. 54
Date:
April 6, 2010
Time:
8:30 a.m.
Dept.:
54
Complaint
Filed: April
1, 2010
Trial
Date: None
Set
|
The Joint
Ex Parte Application to Approve Stipulation for Settlement of Claims jointly
filed by Plaintiff Hutton International Investments, Ltd. (“Hutton”) and
Defendant GetFugu, Inc. (“GetFugu”) came on for hearing on April 6, 2010 at 8:30
a.m. in Department 54 of the above-entitled Court, the Honorable Ernest
Hiroshige presiding.
The Court
having reviewed the parties’ Joint Ex Parte Application, having been presented
with a Stipulation for Settlement of Claims (the “Stipulation”), a copy of which
is attached as Exhibit “A” to the Joint Ex Parte Application, and after a
hearing upon the fairness, adequacy and reasonableness of the terms and
conditions of the issuance of GetFugu’s shares of common stock (the “Common
Stock”) to Hutton in exchange for the extinguishment of the claims at issue in
this action, IT IS THEREFORE
ORDERED AS FOLLOWS:
1. The
Stipulation is approved in its entirety.
2. In
full and final settlement of Hutton’s claims against GetFugu in the total amount
of $500,000 (the “Claims”) pursuant to the Securities Purchase Agreement,
GetFugu will issue and deliver to Hutton or its designee 40,000,000 shares of
Common Stock (the “Settlement Shares”), subject to adjustment as set forth in
paragraph 4 below to reflect the intention of the parties that the
total number of shares issued be based upon an average trading price of the
Common Stock for a specified period of time subsequent to entry of this
Order.
3. No
later than the first business day following the date that the Court enters this
Order approving the Stipulation, GetFugu shall: (i) immediately issue the number
of shares of Common Stock required by paragraph 2 above to Hutton’s or its
designee’s balance account with The Depository Trust Company (DTC) through the
Fast Automated Securities Transfer (FAST) Program of DTC’s Deposit/Withdrawal
Agent Commission (DWAC) system, without any restriction on transfer, time being
of the essence, by transmitting by facsimile and overnight delivery such
irrevocable and unconditional instruction to GetFugu’s stock transfer agent,
provided, that
if GetFugu is not eligible to issue DWAC shares, then in lieu thereof the shares
shall be issued in original certificated form, bearing no restrictive legend,
accompanied by stock powers executed in blank with a medallion signature
guarantee, and (ii) cause its legal counsel to issue an opinion to GetFugu’s
transfer agent, in form and substance acceptable to Hutton and such transfer
agent and at GetFugu’s sole cost and expense, that the shares may be so
issued.
4. The
total number of shares of Common Stock to be issued to Hutton or its designee in
connection with the Stipulation and this Order shall be adjusted on the first
trading day more than 60 days following the date on which the Settlement Shares
are delivered to Hutton or its designee in compliance with paragraph 3
above. If the number of VWAP Shares (as defined below) exceeds the
number of Settlement Shares initially issued, then GetFugu will issue and
deliver to Hutton or its designee, in accordance with paragraph 3 above,
additional shares of Common Stock equal to the difference between the number of
VWAP Shares and the number of Settlement Shares.
a. The
number of VWAP Shares is equal to (i) 50 million shares of Common Stock, (ii)
multiplied by the volume weighted average price (“VWAP”) of the Common Stock
over the 5-day trading period immediately preceding the date of the Stipulation,
(iii) divided by the VWAP of the Common Stock over the 5-day trading period
ending on the 60th day after which the Settlement Shares are delivered to Hutton
or its designee in compliance with paragraph 3, each adjusted for any stock
splits after the date of the Stipulation.
b. In
no event shall the number of shares of Common Stock issued to Hutton or its
designee in connection with the settlement of the Claims, aggregated with all
shares of Common Stock then owned or beneficially owned or controlled by,
collectively, Hutton and its affiliates, at any time exceed 9.99% of the total
number of shares of Common Stock then outstanding.
5. For
so long as Hutton or any of its affiliates hold any shares of Common Stock of
GetFugu, neither Hutton nor any of its affiliates will: (i) vote any shares of
Common Stock owned or controlled by it, or solicit any proxies or seek to advise
or influence any person with respect to any voting securities of GetFugu; or
(ii) engage or participate in any actions, plans or proposals which relate to or
would result in (a) Hutton or any of its affiliates acquiring additional
securities of GetFugu, alone or together with any other person, which would
result in Hutton and its affiliates collectively beneficially owning or
controlling more than 9.99% of the total outstanding Common Stock or other
voting securities of GetFugu, (b) an extraordinary corporate transaction, such
as a merger, reorganization or liquidation, involving GetFugu or any of its
subsidiaries, (c) a sale or transfer of a material amount of assets of GetFugu
or any of its subsidiaries, (d) any change in the present board of directors or
management of GetFugu, including any plans or proposals to change the number or
term of directors or to fill any existing vacancies on the board, (e) any
material change in the present capitalization or dividend policy of GetFugu, (f)
any other material change in GetFugu’s business or corporate structure,
including but not limited to, if GetFugu is a registered closed-end investment
company, any plans or proposals to make any changes in its investment policy for
which a vote is required by Section 13 of the Investment Company Act of 1940,
(g) changes in GetFugu’s charter, bylaws or instruments corresponding thereto or
other actions which may impede the acquisition of control of GetFugu by any
person, (h) causing a class of securities of GetFugu to be delisted from a
national securities exchange or to cease to be authorized to be quoted in an
inter-dealer quotation system of a registered national securities association,
(i) causing a class of equity securities of GetFugu to become eligible for
termination of registration pursuant to Section 12(g)(4) of the Act, or (j)
taking any action, intention, plan or arrangement similar to any of those
enumerated above. The provisions of this paragraph 5 may not be
modified or waived without further order of the Court.
6. This
Order ends, finally and forever (i) any claims to payment or compensation of any
kind or nature that Hutton had, now has, or may assert in the future against
GetFugu arising out of the Claims, and (ii) any claims, including without
limitation for offset or counterclaim that GetFugu had, now has, or may assert
in the future against Hutton arising out of the Claims. In this
regard, and subject to compliance with this Order, effective upon the execution
of this Order, each party hereby releases and forever discharges the other
party, including all of the other party’s employees, officers, directors,
affiliates and attorneys, from any and all claims, demands, obligations
(fiduciary or otherwise), and causes of action, whether known or unknown,
suspected or unsuspected, arising out of, connected with, or incidental to the
Claims.
7. This
action is hereby dismissed with prejudice, provided that the Court shall retain
jurisdiction with regard to the Claims to enforce the terms of this
Order.
8. The
Stipulation and this Order may be enforced by any party to the Stipulation by a
motion under California Code of Civil Procedure section 664.6, or by any
procedure permitted by law in the Superior Court of Los Angeles
County. Pursuant to the Stipulation, each party thereto further
waives a statement of decision, and the right to appeal from this Order after
entry. Except as expressly provided in paragraph 3 above, each party
shall bear its own attorneys’ fees, expenses and costs with regard to the
Stipulation and this Order.
IT
IS SO ORDERED.
Dated:
________________________ ____________________________________
Judge of the Superior
Court