EXHIBIT 10.9(a)
Compromise and Settlement Agreement between Xxxxxx-Xxxxxx-Xxxxxxxx, Inc.
terminating the marketing rights agreement for the IllumiSign-Eyecatcher display
boards.
COMPROMISE AND SETTLEMENT AGREEMENT
THIS AGREEMENT, is made and entered into on the 2nd day of May 2001 between New
Millennium Media International, Inc., a Florida corporation, (hereinafter
referred to as "NMMI") with its principal place of business at 000 Xxxxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxx Xxxxxx, XX 00000, and Xxxxxx Xxxxxx Xxxxxxxx
Enterprises, Inc. d/b/a EyeCatcherPlus, a Florida corporation, (hereinafter
referred to as "CJE"), with its principal place of business at 000 Xxxx Xxxx
Xxxx, Xxxxxx, XX 00000.
WHEREAS, NMMI and CJE entered into a marketing agreement dated October 1, 2000
(hereinafter referred to as "Marketing Agreement");
WHEREAS, NMMI asserts a claim against CJE based upon the facts alleged in a
demand letter to CJE dated March 3, 2001 (said letter is attached hereto and
incorporated herein by reference);
WHEREAS, CJE disputes the alleged facts and the amount of the liability in
connection with the aforementioned asserted claim of NMMI (hereinafter referred
to as "Dispute");
WHEREAS, CJE has tendered to NMMI an offer to compromise and settle the Dispute;
WHEREAS, NMMI has unconditionally accepted the terms of compromise and
settlement offered by CJE;
WHEREAS, both parties wish to reach a full and final settlement of all matters
and all causes of action arising out of the alleged facts and claim as set forth
above;
WHEREAS, both parties hereby intend to terminate the Marketing Agreement and to
mutually release the other party from all rights, duties, and obligations that
exist under the Marketing Agreement;
NOW, THEREFORE, in consideration of the promises, covenants and conditions
contained herein, including, but not limited to, the parties' mutual agreement
to compromise a bona fide dispute and to settle a controverted matter of claim,
ten dollars and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to be
legally bound, agree as follows:
1. TERMINATION OF MARKETING AGREEMENT. The October 1, 2000 Marketing
Agreement by and between NMMI and CJE is hereby cancelled and
terminated in total and said Marketing Agreement is of no further
force and effect. Excepting the rights and obligations created under
this Compromise and Settlement Agreement, all claims, rights, duties,
obligations, and liabilities existing between the parties prior to or
at the time of execution of this Compromise and Settlement Agreement
are hereby fully and completely satisfied, discharged, and terminated.
2. TERMS OF SETTLEMENT. CJE hereby conveys and/or assigns to NMMI, all
right, title and interest that CJE has in the following property:
a. The EyeCatcherPlus website - to include all marketing leads that
have been generated by the website, excepting specifically the
Regal Cinemas and the Xxxx Theatres corporate accounts.
b. The CJE marketing materials - to include, but not limited to, all
paper literature, video VHS tapes, CD Rom presentations,
camera-ready artwork, and supplies, excepting specifically the
Regal Cinemas and the Xxxx Theatres corporate accounts.
c. The CJE Uniform Franchise Offering Circular (UFOC) and all
related paperwork, excepting specifically the Regal Cinemas and
the Xxxx Theatres corporate accounts.
d. All existing CJE franchise rights, including, but not limited to,
Creative Advertising, Inc. (Xxxx Xxxxxx) operating in Oregon,
Washington, and Northern California, excepting specifically the
Regal Cinemas and the Xxxx Theatres corporate accounts.
e. All existing CJE dealership rights, including, but not limited
to, Xxxx Xxxxxxxxx (Canada); Xxx Xxxxx (Green Bay, WI); and Xxx
Xxxxx (Hollister, CA), excepting specifically Xxxxx Xxxxxxx
(Florida); the Regal Cinemas corporate account, and the Xxxx
Theatres corporate account. CJE hereby grants permission to NMMI
to contact Xxxxx Xxxxxxx for the purpose of contracting with
Xxxxx Xxxxxxx as a dealer for NMMI, and, provided that Xxxxx
Xxxxxxx desires to contract with NMMI as a dealer for NMMI, CJE
agrees to waive all existing dealership rights with respect to
Xxxxx Xxxxxxx, excepting specifically any monies then due and
owing to CJE from Xxxxx Xxxxxxx.
f. All existing CJE "Corporate Accounts," including, but not limited
to GKC Theatres and C & K Markets, excepting specifically the
Regal Cinemas and Xxxx Theatres corporate accounts. It is
understood and agreed that the parties shall in no unmistakable
terms take such steps and measures as are reasonably necessary to
assure that the said "Corporate Accounts" are not only
contractually conveyed to NMMI, but that said "Corporate
Accounts" are properly introduced to NMMI in a friendly fashion
and, with unwavering sincerity, recommended to NMMI.
g. The CJE agency rights with respect to Continental High-Tech
Marketing & Sales, Inc. and Airpass Wireless, Inc., excepting
specifically the Regal Cinemas and Xxxx Theatres corporate
accounts.
h. The CJE Microsoft Access Database, excepting specifically the
Regal Cinemas and Xxxx Theatres corporate accounts.
CJE agrees to promptly execute any and all documents required and/or
necessary to complete the above identified conveyances and/or
assignments.
CJE agrees to convey to NMMI all right, title, and interest in the CJE
EyeCatcherPlus name. CJE further agrees to promptly execute any and
all documents required and/or necessary to complete this conveyance
and the intention of this conveyance. Notwithstanding said conveyance
to NMMI of all right, title, and interest in the CJE EyeCatcherPlus
name, CJE expressly reserves any and all existing EyeCatcherPlus
contractual rights, not otherwise conveyed and/or assigned to NMMI
herein, which exist at the time of execution of this Compromise and
Settlement Agreement, to include specifically, the Regal Cinemas
Corporate Account; the Xxxx Theatres Corporate Account; any
EyeCatcherPlus Advertising Accounts, and the National Sales League
(NSL) Referral Agency.
CJE agrees to promote the Nashville, TN EyeCatcherPlus franchise on
behalf of NMMI. CJE agrees to assist NMMI in obtaining a franchise fee
from the prospective Nashville, TN franchisee, Xxxxx Xxxxxx, in the
amount of fifty thousand dollars ($50,000.00). The said payment of
fifty thousand dollars ($50,000.00) to NMMI within forty-five (45)
working business days from the execution and delivery of this
Compromise and Settlement Agreement shall be a condition subsequent to
this Compromise and Settlement Agreement.
Excepting display boards that have been placed with either a dealer or
franchisee as identified in subparagraphs 2d, 2e, or 2f herein above,
CJE shall, within twenty (20) working business days from the execution
and delivery of this Compromise and Settlement Agreement, return to
NMMI all display boards which are titled and owned by NMMI. The
returned display boards shall be in the same working condition as they
were when delivered to CJE, less reasonable wear and tear resulting
from normal and customary usage and shipment.
NMMI shall return to CJE all original artwork provided to NMMI by CJE
advertising account entities for purpose of creating poster
advertisements for display in NMMI's display board. Specifically, NMMI
shall return all original artwork for 1) Sommersby Mortgage; 2) Xxxxxx
Xxxxxxxx Real Estate; and 3) First Street Caloosahatchee Development
at the time of delivery of this Compromise and Settlement Agreement.
CJE and NMMI expressly agree that all original artwork provided to
NMMI by CJE advertising account entities is and shall remain the
property of said advertising account entities.
3. MUTUAL RELEASE. Each of the above-mentioned parties, on behalf of
itself, its agents, stockholders, employees, representatives, assigns,
and successors, hereby fully releases and discharges the other party
and its agents, stockholders, employees, representatives, assigns, and
successors from all rights, claims, and actions which each party and
its above mentioned successors now have or may have against the other
party and/or the other party's above-mentioned successors arising out
of the October 1, 2000 Marketing Agreement between CJE and NMMI and
all other obligations associated with said Marketing Agreement.
4. SCOPE OF RELEASE. This Compromise and Settlement Agreement is intended
to be a full settlement of the above-mentioned Dispute. This
Compromise and Settlement Agreement shall act as a release of any and
all existing claims that may arise from the October 1, 2000 Marketing
Agreement between CJE
and NMMI and all other obligations associated with said Marketing
Agreement, whether such claims are currently known, unknown, patent or
latent. The parties understand and acknowledge the significance and
consequence of such specific intention to release all claims and
hereby assume full responsibility for any injuries, damages, losses,
or liability that they may hereafter incur from the October 1, 2000
Marketing Agreement.
5. VOLUNTARY EXECUTION OF RELEASE; NO REPRESENTATIONS OR INDUCEMENTS. The
above-mentioned mutual release is freely and voluntarily executed by
each party after having been apprised of all relevant information and
data and after having had the opportunity to be advised by its
respective attorney. Excepting the mutual promises expressly set forth
herein, neither party, in executing the above-mentioned mutual
release, has relied on any inducements, promises, or representations
made by either the other party or its agents, stockholders, employees,
representatives, assigns, and successors.
6. NO ADMISSION OF LIABILITY. This Compromise and Settlement Agreement is
the compromise of the above-mentioned Dispute and shall never be
treated as an admission of liability by either party for any purpose.
7. DISPARAGING REMARKS. Each of the parties hereto shall refrain from in
any manner, directly or indirectly, taking any action or saying any
words of a disparaging nature about any of the parties to this
Compromise and Settlement Agreement. In case of violation of this
Paragraph 7, the aggrieved party shall be entitled to any and all
available legal and equitable remedy.
8. NONINTERFERENCE WITH BUSINESS RELATIONSHIPS. Excepting the terms of
settlement identified in Paragraph 2 herein above, each of the parties
hereto shall refrain from in any manner, directly or indirectly,
interfering with the business relationships that exist at the time of
the execution of this Compromise and Settlement Agreement between the
other party and any of its employees, agents, representatives,
customers, affiliates, advertisers, or venue hosts. Specifically, NMMI
expressly agrees to refrain from contacting either Regal Cinemas or
Xxxx Theatres for any purpose whatsoever for so long as CJE maintains
a business relationship with either Regal Cinemas or Xxxx Theatres.
Moreover, NMMI expressly agrees that it shall not contact any
advertising account to whom CJE has sold advertising on display boards
that are situated on sites controlled by either Regal Cinemas or Xxxx
Theatres for purposes of collection.
CJE agrees to refrain from contacting any EyeCatcherPlus corporate
account, franchisee, or dealer identified in Paragraph 2 of the terms
of settlement herein above, provided that CJE shall be entitled to
make those communications necessary to effect the assignments and
conveyances contemplated by this Settlement and Compromise Agreement.
In case of violation of this Paragraph 8, the aggrieved party shall be
entitled to any and all available legal and equitable remedy.
9. GENERAL PROVISIONS.
(a) The laws of the State of Florida shall govern this Compromise and
Settlement Agreement. In the event of any litigation arising out
of any terms of this Compromise and Settlement Agreement, the
parties hereto agree that Pinellas County, Florida shall be the
venue for such litigation.
(b) This Compromise and Settlement Agreement represents the entire
agreement between the parties with respect to this Compromise and
Settlement Agreement and may be modified or amended only in
writing signed by all parties.
(c) Any notice, demand or request required or permitted to be given
by the parties hereto pursuant to the terms of this Compromise
and Settlement Agreement shall be in writing and shall be deemed
given when delivered personally or deposited in the U.S. mail,
First Class with postage prepaid and addressed to the parties at
the addresses of the parties set forth herein or such other
address as a party may notify the others in writing.
(d) Any party's failure to enforce any provision or provisions of
this Compromise and Settlement Agreement shall not in any way be
construed as a waiver of any such provision or provisions, nor
prevent that party thereafter from enforcing each and every other
provision of this Compromise and Settlement Agreement. The rights
granted both parties herein are cumulative and shall not
constitute a waiver of any party's right to assert all other
legal remedies available to such party under the circumstances.
(e) Each of the parties to this Compromise and Settlement Agreement
agrees upon request to execute any further documents or
instruments necessary or desirable to carry out the purpose or
intent of this Compromise and Settlement Agreement.
(f) This Compromise and Settlement Agreement may be executed in
separate counterparts, each of which is deemed to be an original
and all of which taken together constitute one and the same
Compromise and Settlement Agreement.
(g) Except as otherwise provided herein, this Compromise and
Settlement Agreement shall bind and inure to the benefit of and
be enforceable by the parties and their respective successors and
assigns.
(h) Each of the parties hereto represents that he has full and proper
legal authority to bind the entity for which he signed this
Compromise and Settlement Agreement and that the said entity is
fully bound by the terms of this Compromise and Settlement
Agreement.
(i) If any provision or clause of this Compromise and Settlement
Agreement or the application thereof to either CJE or NMMI is
held to be invalid by a court of competent jurisdiction, then
such provision shall be severed from this Compromise and
Settlement Agreement, and such invalidity shall not affect any
other provision of this Compromise and Settlement Agreement, the
balance of which shall remain in and have its intended full force
and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Compromise and
Settlement Agreement on the date as stated below.
Xxxxxx Xxxxxx Xxxxxxxx Enterprises, Inc., dba EyeCatcherPlus
By s/___________________________ Dated this 10th day of May 2001
Xxxxxx Xxxxxx, as President
New Millennium Media International, Inc.
By s/___________________________ Dated this 10th day of May 2001
Xxxx "JT" Thatch, as President/CEO
