EXHIBIT 4.31
SETTLEMENT AGREEMENT AND GENERAL RELEASE
This Settlement Agreement ("Agreement") is made and entered into between
XXXXXX CONSULTING GROUP, INC. ("Xxxxxx"), on the one hand, CHEQUEMATE
INTERNATIONAL, INC., dba C3D DIGITAL, INC. ("C3D"), on the other hand. The
above-named parties are referred to collectively hereinafter as "the Parties."
RECITALS
Whereas, certain disputes have arisen between the Parties;
Whereas, on October 22, 2001, Xxxxxx filed a suit against C3D in the in the
Third District Court of the State of Utah, Salt Lake County, Case No. 000909325,
XXXXXX V. C3D.
Whereas, the Parties now desire to resolve all claims, known and unknown,
which may exist among them relating to, or arising out of, the action entitled
XXXXXX V. C3D.
Now therefore, in consideration of the above premises and the following
covenants, it is hereby agreed as follows:
PURPOSE
1. The Parties hereto understand, acknowledge, and agree that the execution of
this Agreement constitutes a compromise of the disputes that exist between
them, that this Agreement is not to be considered as any finding of fact
nor construed as an admission of liability or fault by any party.
RECIPROCAL OBLIGATION
2. C-3D will issue 514,000 shares of its common stock to Xxxxxx (the
"Settlement Shares"), valued at a price per shares of $0.175. These shares
would be immediately made a part of the S-3 registration statement of C-3D,
subject only to the registration statement going effective for trading
restrictions to be lifted on the 514,000 shares to be issued to Xxxxxx.
3. From the time that the registration statement goes effective Xxxxxx would
agree to limit its sales during each thirty-day period following that date
to 20% of the shares received pursuant to the settlement agreement.
4. At the end of the five-month period following the effective date, C-3D
would cover any shortfall in sales proceeds generated by the sales of the
common stock received by Xxxxxx, the maximum of the guaranty is for
$90,000. Any at point that sales proceeds equal or exceed the sum of
$90,000, Xxxxxx may sell shares equal to 10% of the preceding week's sales
volume from that time forward.
5. The respective Parties have agreed to jointly draft and execute this
Settlement Agreement and General Release, and after the language is
finalized, to provide the other with a copy of the executed signature page
with all due expediency.
6. The Parties agree that payment made in the form of items 1 through 5 of
this agreement by C3D shall constitute full and complete settlement of all
disputes arising from, or related to the action entitled XXXXXX V. C3D,
Case No. 000909325.
7. After counsel for C3D receives in his office a copy of the executed
signature page of this Settlement Agreement, C3D shall issue the Settlement
Shares, to be sent to Xxxxxxx Xxxxxxxxx, Attorney at Law, made payable to
Xxxxxx Consulting Group, Inc..
8. Within seven (7) calendar days of receipt of the Settlement Shares, counsel
for Xxxxxx shall file Request for Dismissal with prejudice with the Third
District Court of the State of Utah, Salt Lake County, Case No. 000909325
and duly notify the court of the settlement. Counsel for Xxxxxx shall also
serve C3D's counsel with copies of all of Xxxxxx'x communications with the
court.
RELEASE OF CLAIMS
9. Each party agrees for itself, its predecessors, successors, and assigns, to
fully and unconditionally release and forever discharge the other party,
including each party's successors, assigns, subsidiaries, affiliates,
transferees, attorneys, representatives, agents, officers, directors,
employees, insurers, and reinsurers, past, present, and future, from and on
account of any and all claims, demands, actions, causes of action, or
charges of any nature or kind whatsoever against the other party, whether
known or unknown, asserted or unasserted, xxxxxx or inchoate, related to or
arising out of the action entitled XXXXXX V. C3D, Case No. 000909325.
ADVICE OF COUNSEL
10. In executing this Agreement, the Parties acknowledge that they have been
advised to consult with and have consulted with and had the advice of an
attorney duly admitted to practice law in the State of California prior to
executing this Agreement, and that they have voluntarily executed this
Agreement after a careful and independent investigation, and not under
fraud, duress, or undue influence.
BINDING ON SUCCESSORS
11. This Agreement shall be binding on and inure to the benefit of the Parties
hereto, their heirs, executors, administrators, successors-in-interest, and
assigns.
INTEGRATION
12. All Parties hereby agree that this Agreement is the complete and exclusive
statement of the mutual understanding of the Parties and supersedes and
cancels all previous written and oral agreements and communications
relating to the action entitled XXXXXX V. C3D, Case No. 000909325.
INTERPRETATION
13. The Parties hereby agree that no inference or rule of inference shall be
made by reason of the fact that one Party caused this Agreement to be
drafted. For purposes of interpretation of the Agreement, it shall be
assumed that all Parties drafted each provision of the Agreement. This
Agreement shall be deemed to have been made in, and shall be construed
pursuant to the laws of the State of California.
SEVERABILITY
14. If any provision of this Agreement shall be adjudged by any court of
competent jurisdiction to be unenforceable or invalid, that provision shall
be limited or eliminated to the minimum extent necessary so that this
Agreement shall otherwise remain in full force and effect and enforceable.
CONFIDENTIALITY
15. The Parties hereto specifically acknowledge, affirm, agree, and intend on
their own behalf and on the behalf of their attorneys and representatives,
that the terms of this Agreement shall remain entirely confidential unless
disclosure is required by the court, by law, any reporting requirements of
the Securities and Exchange Commission or the American Stock Exchange, or
otherwise necessary to carry out the terms and conditions of this
Agreement.
NO WAIVER
16. No failure to exercise, and no delay in exercising, on the part of any
Party, any privilege, any power or any rights hereunder will operate as a
waiver thereof, nor will any single or partial exercise of any right or
power hereunder preclude further exercise of any right hereunder.
FURTHER ASSISTANCE
17. Each of the parties shall hereafter execute all documents and take all
actions that are reasonably necessary to effectuate the provisions of this
Agreement.
WAIVER OF CLAIMS
18. The Parties hereby acknowledge that there is a risk that subsequent to the
execution of this Agreement. They will discover, incur, or suffer claims
which were unknown or anticipated at the time this Agreement was executed,
which, if known on the date this Agreement is executed, may have materially
affected their decision to execute this Agreement. The Parties expressly
assume the risk of such unknown and unanticipated claims and agree that
this Agreement and the general release contained herein apply to all such
known or unknown or unanticipated claims.
ATTORNEY FEES
19. If any actual controversy arises as to the enforcement of any provision of
this Agreement, the prevailing party, in any action or arbitration to
enforce this Agreement, shall be entitled to recover all costs and expenses
including, without limitation, attorney fees.
EXECUTION IN COUNTERPARTS
20. The Parties agree that this Agreement may be executed in counterparts and
that it is the intent of the Parties that a copy signed by a Party will be
fully enforceable against that Party provided all other Parties have
executed a counterpart of this Agreement. The Parties further agree that,
in order to expeditiously effect the execution of this Agreement, a
facsimile transmission of the signature pages will be deemed an original.
Therefore, the signatures below constitute an express of the Parties, and
each of them, that this Agreement is agreed to and binding as of the date of
execution:
THE XXXXXX GROUP
By: Xxxxxxx Xxxxxx Dated:
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Its: President
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CHEQUEMATE INTERNATIONAL, INC.
By: Xxxxxxx Xxxxx Dated:
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Its: CEO and President
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