SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE
OF ALL CLAIMS KNOWN AND UNKNOWN
This Settlement Agreement And Mutual General Release Of All Claims Known
And Unknown (the "Agreement") is entered into as of this ____ day of July 2002,
by and between Xxxx Xxxxxx ("Xxxxxx"), Westgate Entertainment Corporation
("Westgate") and Xxxxxxx & Chase Engineering, NV ("W&C"), on the one hand
(collectively, the "Joslyn Parties"), and RMS Titanic, Inc. ("Titanic") and
Xxxxx Xxxxxx ("Xxxxxx"), on the other hand (collectively, the "Titanic
Parties"), and is made with reference to the following facts:
A. On April 30, 0000, Xxxxxxxx and W&C filed a lawsuit against the Titanic
Parties in the Superior Court of the State of California for the County of Los
Angeles entitled Westgate Entertainment Corp., et al. v. RMS Titanic, Inc., et
al., Case No. BC 249579 (the "Lawsuit"). On or about May 30, 2001, the Titanic
Parties removed the Lawsuit to the United States District Court for the Central
District of California, Case No. CV-01-04894 FMC (MANx).
B. The Joslyn Parties and the Titanic Parties (collectively, the "Parties")
wish to resolve their disputes and the Lawsuit and hereby enter into this
Agreement to effectuate mutual general releases of all claims known and unknown
in exchange for the consideration set forth below.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, the Parties agree as follows:
1. Settlement Amount. Titanic shall pay Westgate, and Westgate shall
accept, the sum of THREE HUNDRED EIGHTY EIGHT THOUSAND DOLLARS ($388,000),
payable as follows:
a. Concurrently with the execution of this Agreement, Titanic shall pay to
Westgate the sum of TWENTY FIVE THOUSAND DOLLARS ($25,000). The payment shall be
made to Westgate by wire transfer to the following bank, unless another bank is
designated by Westgate in writing to Titanic:
City National Bank
000 Xxxxx Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Account No. 001793187
ABA No. 000000000
b. The balance of THREE HUNDRED SIXTY THREE THOUSAND DOLLARS ($363,000)
shall be paid by Titanic to Westgate as set forth in subparagraphs c. through f.
c. The sum of NINETY NINE THOUSAND NINE HUNDRED NINETY NINE DOLLARS AND
NINETY CENTS ($99,999.90) shall be paid by Titanic to Westgate in thirty nine
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(39) equal two week period installments of TWO THOUSAND FIVE HUNDRED SIXTY FOUR
DOLLARS AND TEN CENTS ($2,564.10) commencing on July 26, 2002 and continuing
thereafter for thirty eight (38) consecutive two week periods on the Friday of
each second week of the two week period. Each payment shall be deposited by
Titanic via ADT into Westgate's bank account designated in subparagraph a.
hereof, or to such other bank account Westgate designates in writing to Titanic.
d. The sum of ONE HUNDRED THOUSAND DOLLARS ($100,000) shall be paid by
Titanic to Westgate on December 29, 2003. This payment shall be made by wire
transfer into Westgate's bank account designated in subparagraph a. hereof, or
to such other bank account Westgate designates in writing to Titanic.
e. The sum of SIXTH SIX THOUSAND SIX HUNDRED SIXTY SIX DOLLARS AND SIXTY
CENTS ($66,666.60) shall be paid by Titanic to Westgate in twenty six (26) equal
two week period installments of TWO THOUSAND FIVE HUNDRED SIXTY FOUR DOLLARS AND
TEN CENTS ($2,564.10) commencing on January 30, 2004 and continuing for twenty
five (25) consecutive two week periods on the Friday of each second week of the
two week period. Each payment shall be deposited by Titanic via ADT into
Westgate's bank account designated in subparagraph a. hereof, or to such other
bank account Westgate designates in writing to Titanic.
f. The sum of NINETY SIX THOUSAND THREE HUNDRED THIRTY THREE DOLLARS AND
FIFTY CENTS ($96,333.50) shall be paid by Titanic to Westgate on January 31,
2005 by wire transfer into Westgate's bank account designated in subparagraph a.
hereof, or to such other bank account Westgate designates in writing to Titanic.
g. Titanic shall not withhold any sums from any of the above payments for
any purported reason, including, without limitation, taxes.
h. Titanic shall continue making payments to Westgate pursuant to this
Agreement provided that Westgate does not materially breach any of the
provisions of paragraphs 6 and 8, below.
x. Xxxxxx shall not be personally liable for any of the settlement sums set
forth above.
2. Stipulation for Entry of Judgment in the Event of Default. The payment
of the sums set forth in paragraph 1 of this Agreement shall be secured by a
Stipulation for Entry of Judgment in the Event of Default in the form attached
hereto as Exhibit A, which Titanic and its counsel shall sign upon the execution
of this Agreement. In the event of an uncured default of the obligations to pay
the settlement sums pursuant to the terms of this Agreement, and if none of the
Joslyn Parties have materially breached any of the provisions of paragraphs 6 or
8, the Joslyn Parties shall be entitled to enter judgment against Titanic in the
amount of $388,000, less all settlement sums paid pursuant to paragraph 1 of
this Agreement. By way of example and not by way of limitation, should Titanic
default following payment of the sum set forth in paragraph 1.a., the Joslyn
Parties would be entitled to enter judgment against Titanic in the amount of
$363,000, and so on. The Stipulation for Entry of Judgment in the Event of
Default shall be held by counsel for the Joslyn Parties and shall not be filed
with the Court except upon an uncured default in the payment obligations by
Titanic, as defined in paragraph 3.
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3. Default and Cure. No judgment shall be entered against Titanic until
such time as a written notice of default has been delivered and ten (10) days
shall expire after delivery without the default being cured. Notice of default
shall be delivered by personal messenger or faxed to Xxxxxx X. Xxxxxxxxxx, Esq.,
Xxxxxxxxxx & Associates, 000 X Xxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000,
telephone number (000) 000-0000 and facsimile number (000) 000-0000 and shall be
effective per delivery. The Titanic Parties may change the designee to receive
notice of default by informing the Joslyn Parties of such change in writing.
4. Waiver and Release of Connecticut Stipulations. Except as otherwise
provided herein, the Titanic Parties and all persons and entities acting on
their behalf, for their benefit, at their direction, under their control or whom
they represent, and each such party, person or entity (collectively, the
"Titanic-Affiliated Parties"), hereby waive to the fullest extent allowed by
law, all provisions that apply or would apply, but for this waiver, to any and
all conduct or matters, past, present and future, of any kind whatsoever, by the
Joslyn Parties and all persons and entities acting on their behalf, for their
benefit, at their direction, under their control or whom they represent, and
each such party, person or entity (collectively, the "Joslyn-Affiliated
Parties"), which provisions are set forth in:
(1) The Stipulated Judgment entered on or about December 10, 1996 in the
case styled Piaget x. Xxxxxxx, United States District Court, District of
Connecticut Case No. 5:91CV0007 (WWE)/Westgate Entertainment Corp. x. Xxxxxxx,
et al., Case No. 3:96CV01768 (WWE) (the "Connecticut Litigation"), including any
and all addendums, amendments and/or modifications thereto (the "Stipulated
Judgment"); and/or
(2) The Agreement and Stipulation filed on or about March 1999 in the
Connecticut Litigation, including any and all addendums, amendments and/or
modifications thereto (the "Agreement and Stipulation").
a. Notwithstanding any contrary provision in the Stipulated Judgment and/or
Agreement and Stipulation, none of the Titanic-Affiliated Parties shall ever
attempt to enforce any provision or provisions of the Stipulated Judgment or
Agreement and Stipulation against any of the Joslyn-Affiliated Parties at any
time for any reason in any manner whatsoever.
b. The Titanic-Affiliated Parties do hereby generally and specifically
release, absolve and discharge, to the fullest extent allowed by law, the
Joslyn-Affiliated Parties, and each of them, from all claims, causes of action,
costs, expenses, damages, losses, known and unknown, that the Titanic-Affiliated
Parties ever had, have, or would at any time have had, but for this waiver or
release, against the Joslyn-Affiliated Parties arising from the Stipulated
Judgment or Agreement and Stipulation.
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c. Nothing herein shall affect or diminish in any way any rights of the
Joslyn-Affiliated Parties, or any of them, set forth in the Stipulated Judgment
or Agreement and Stipulation, including, but not limited to, any and all rights
of the Joslyn-Affiliated Parties arising from the Licensing Agreement referenced
in the Stipulated Judgment at page 40, paragraph 12.
5. Contempt Proceeding. None of the Titanic Parties, or any of them, shall
ever attempt to enforce any provision or provisions of the July 11, 2002 Order
in the Connecticut Litigation finding Joslyn and Westgate in contempt (the
"Contempt Order") against any of the Joslyn Parties at any time for any reason
in any manner whatsoever. In addition, Titanic shall request that the Court in
the Connecticut Litigation vacate the Contempt Order with respect to Joslyn and
Westgate, in the following manner: on or before July 26, 2002, Titanic shall
file with the Court in the Connecticut Litigation a notice that states the
following: (1) Titanic, on the one hand, and Joslyn and Westgate, on the other
hand, have entered into a written Settlement Agreement in litigation pending in
the United States District Court for the Central District of California, (2) as
part of the settlement, Titanic agreed to request that the Court in the
Connecticut Litigation vacate the Contempt Order with respect to Joslyn and
Westgate, and (3) in accordance with the Settlement Agreement, Titanic waives
and agrees never to enforce any of its rights under the Contempt Order against
Joslyn and/or Westgate. Upon filing this notice, Titanic shall mail a copy of
the notice to Westgate at its address, 000 Xxxxxxxxx Xxx, Xxxxx 000, Xxxxxxx,
Xxxxxxxxxx 00000. Upon receipt of any Court order addressing the notice, Titanic
shall mail a copy of such order to Westgate. Titanic shall defend, indemnify and
hold the Joslyn Parties, and each of them, harmless against any motion, action,
proceeding, Court order or claim of any kind by any person or entity arising
from the Contempt Order.
6. Restrictive Covenant. The Joslyn Parties, jointly and severally, shall
not, for any commercial purpose, engage directly or indirectly, either as
principal, agent, proprietor, shareholder, director, officer or employee in, nor
participate in the ownership, management, operation or control of, any business
to visit or participate in any act at the wreck site of RMS Titanic in the North
Atlantic Ocean, including the recovery of artifacts and photography on or below
the surface at the area of the salvage operation of RMS Titanic. This provision
does not apply to any non-commercial activities of the Joslyn Parties, or any of
them.
7. Consent to Sale of Titanic Stock by Westgate. The Titanic Parties shall
not oppose any lawful effort by Westgate to sell its 66,728 shares of RMS
Titanic, Inc. stock, evidenced by Westgate's stock certificate for those shares
dated May 22, 1998.
8. Xxxxxx Civil and Criminal Litigation. Joslyn and Westgate shall fully
cooperate, for a reasonable length of time:
a. With the Titanic Parties in their investigation of the facts underlying
the lawsuit entitled G. Xxxxxxx Xxxxxx v. RMS Titanic, Inc. (and related
Counterclaim and Third Party Claim), Circuit Court, Sixth Judicial Circuit of
Florida Case No. 00-06147-CI-11 (the "Xxxxxx Action"), by meeting, upon
reasonable notice, with the Titanic Parties or any person(s) designated by them
at a location of their choosing anywhere in the United States to discuss
Joslyn's recollection of the facts;
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b. With any government official to prosecute G. Xxxxxxx Xxxxxx ("Xxxxxx")
in the State of Florida, including without limitation, Detective Xxxxxx Xxxxxxx
of the Pinellas County Sheriff's Department and any Florida state prosecutor, at
and before trial, if any. If Titanic requests that Joslyn attend any trial
against Xxxxxx pursuant to this paragraph 8, Titanic shall give Joslyn
reasonable advance notice; and
c. With the Titanic Parties by providing testimony in any interview,
deposition or court proceeding (either criminal or civil) against Xxxxxx that is
truthful, complete and to Joslyn's best recollection, subject to the
geographical limitations set forth in paragraph 8.a.
d. The Titanic Parties shall pay any and all reasonable travel expenses,
including reasonable hotel accommodations, incurred by Joslyn in complying with
paragraph 8.
9. Stipulation for Dismissal. Upon the execution of this Agreement by the
Parties, counsel for the Titanic Parties shall also sign a Stipulation and
[Proposed] Order for Dismissal of Action and Retention of Jurisdiction to
Enforce Settlement Agreement (the "Stipulation for Dismissal"), in the form
attached hereto as Exhibit B, and return the signed stipulation to Xxxxxxxxx
Xxxxxxx, LLP via facsimile on the same day. Within one business day of the
receipt by Westgate of (1) the $25,000 payment described in paragraph 1.a., (2)
the Stipulation for Dismissal signed by counsel for the Titanic Parties, and (3)
the Stipulation for Entry of Judgment in the Event of Default signed by Titanic
and its counsel, counsel for Westgate and W&C shall sign the Stipulation for
Dismissal and file it with the Court.
10. Retention of Jurisdiction. As set forth in the Stipulation and
[Proposed] Order for Dismissal of Action and Retention of Jurisdiction to
Enforce Settlement Agreement attached hereto as Exhibit B, the Xxxxxxxxx
Xxxxxxxx Xxxxx Xxxxxx shall retain exclusive jurisdiction to enforce this
Agreement, enter judgment pursuant to the Stipulation for Entry of Judgment in
the Event of Default and hear and rule upon any motion to enforce the Agreement
based on an alleged violation thereof. In the event that Judge Xxxxxx cannot,
for any reason, hear the matter, or if she is no longer sitting as an active
Judge of the United States District Court for the Central District of
California, the matter shall be assigned to another United States District Judge
of the United States District Court for the Central District of California,
sitting in Los Angeles, who shall retain exclusive jurisdiction to enforce this
Agreement.
11. Release by Joslyn Parties. Except for the obligations set forth in this
Agreement, the Joslyn Parties, and each of them, and any person or entity making
any claim by or through them, do hereby generally and specifically release,
absolve and discharge the Titanic Parties, and each of them, and their officers,
directors, attorneys, successors and/or assigns (the "Defendant-Released
Parties") from all claims, causes of action, costs, expenses, damages, losses,
known and unknown, that the Joslyn Parties have, may have, or ever have had
against the Defendant-Released Parties from the beginning of time through the
date of this Agreement, including but not limited to, any such claims, causes of
action, costs, expenses, damages and losses arising out of, during, or relating
to or that were or could have been stated in the Lawsuit, provided, however,
that nothing herein should be construed as a release by the Joslyn Parties with
respect to G. Xxxxxxx Xxxxxx.
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12. Waiver of California Civil Code ss. 1542. Except for the obligations
set forth in this Agreement, this Agreement shall be effective as a bar as to
each and every claim, demand and cause of action which the Joslyn Parties have,
may have, or ever have had against the Defendant-Released Parties. In
furtherance of this intention, the Joslyn Parties hereby expressly waive any and
all rights or benefits conferred by the provisions of Section 1542 of the
California Civil Code which provides as follows:
A general release does not extend to claims which the creditor does
not know or expect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor.
The Joslyn Parties acknowledge that they may hereafter discover claims or facts
in addition to or different from those which they now know or believe to exist
with respect to the subject matter of this Agreement and which, if known or
suspected at the time of executing this Agreement, may have materially affected
the settlement. Nevertheless, the Joslyn Parties hereby waive any right, claims
or causes of action that might arise as a result of such different or additional
claims or facts.
13. Release by Titanic Parties. Except for the obligations set forth in
this Agreement, the Titanic Parties, and each of them, and any person or entity
making any claim by or through them, do hereby generally and specifically
release, absolve and discharge the Joslyn Parties, and each of them, and their
officers, directors, attorneys, successors and/or assigns (the
"Plaintiff-Released Parties") from all claims, causes of action, costs,
expenses, damages, losses, known and unknown, that the Titanic Parties have, may
have, or ever have had against the Plaintiff-Released Parties from the beginning
of time through the date of this Agreement, including but not limited to, any
such claims, causes of action, costs, expenses, damages and losses arising out
of, during, or relating to or that were or could have been stated in the
Lawsuit, provided, however, that nothing herein should be construed as a release
by the Titanic Parties with respect to G. Xxxxxxx Xxxxxx.
14. Waiver of California Civil Code ss. 1542. Except for the obligations
set forth in this Agreement, this Agreement shall be effective as a bar as to
each and every claim, demand and cause of action which the Titanic Parties have,
may have, or ever have had against the Plaintiff-Released Parties. In
furtherance of this intention, the Titanic Parties hereby expressly waive any
and all rights or benefits conferred by the provisions of Section 1542 of the
California Civil Code which provides as follows:
A general release does not extend to claims which the creditor does
not know or expect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor.
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The Titanic Parties acknowledge that they may hereafter discover claims or facts
in addition to or different from those which they now know or believe to exist
with respect to the subject matter of this Agreement and which, if known or
suspected at the time of executing this Agreement, may have materially affected
the settlement. Nevertheless, the Titanic Parties hereby waive any right, claims
or causes of action that might arise as a result of such different or additional
claims or facts.
15. Representations and Warranties. The Parties to this Agreement represent
and warrant to each other that no portion of any of the released matters, and no
portion of any recovery or settlement to which a party might be entitled, has
been or will be assigned or transferred to any other person, firm or
corporation, in any manner, including by way of subrogation or operation of law
or otherwise, except that any party may assign his or its rights under this
Agreement with the consent of all other Parties. If any claim, action, demand or
suit should be made or instituted against any party or parties because of any
unauthorized assignment, subrogation or transfer, the party from whom such
purported assignment, subrogation, or transfer is alleged to have been made
shall indemnify and hold harmless the other party or parties against such claim,
action, suit or demand, including necessary expenses of investigation,
attorneys' fees and costs.
16. Legal Fees. In the event that any legal action is required by any party
to this Agreement to enforce the terms of this Agreement, the prevailing party
in any such proceeding shall be entitled to recover from the other(s) its
reasonable attorneys' fees and costs arising from the same.
17. Acknowledgement. Each of the Parties has made such investigation of the
facts and the law pertaining to the matters described in this Agreement as such
party deems necessary, and none of the Parties has relied or does rely on any
promise or representation made by any other party with respect to any such
matters. All Parties acknowledge that they have carefully read and fully
understand all of the provisions of this Agreement, that they have been given
the opportunity to discuss fully the contents of this Agreement with independent
counsel of their choice and have done so and that they are voluntarily entering
into this Agreement.
18. Entire Agreement. This Agreement contains all of the terms and
conditions agreed upon by the Parties regarding the subject matter of this
Agreement, and constitutes the entire agreement between the Parties. Any prior
agreements, promises, negotiations or representations, whether oral or written,
relating to the subject matter of this Agreement have no force or effect.
19. Authorization. Each individual signing this Agreement on behalf of an
entity represents and warrants that such individual is duly authorized to sign
on behalf of such entity and that such individual signature is binding upon such
entity.
20. Governing Law. This Agreement shall be construed and governed
exclusively by the laws of the State of California, without giving effect to any
conflict of laws provisions that might render any provision of this Agreement
unenforceable.
21. Severability. If any provision of this Agreement is deemed to be
illegal, invalid or unenforceable, the legality, validity and enforceability of
all remaining provisions shall not be affected.
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22. Construction. This Agreement will be construed without giving effect to
the usual rule that ambiguities are construed against the drafting party.
23. No Admission. Nothing in this Agreement shall be construed as an
admission of liability, fault, violation of any statute or damage by any party.
Each party denies liability to the other. This Agreement constitutes a
settlement of disputed claims.
24. Counterparts. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one agreement.
Facsimile signatures shall be deemed to have the same binding effect as original
signatures, but the Parties shall exchange original signatures within thirty
(30) days of all Parties' signing of this Agreement and its exhibits.
25. Modification. No modification of this Agreement shall be valid unless
in writing and signed by the party or parties against whom the modification is
enforced.
Dated: _______, 2002
--------------------------------
XXXX XXXXXX
Dated: _______, 0000 XXXXXXXX ENTERTAINMENT CORPORATION
By:________________________________
XXXX XXXXXX
Its President
Dated: _______, 0000 XXXXXXX & XXXXX XXXXXXXXXXX, XX
By:________________________________
XXXX XXXXXX
Its Authorized Representative
Dated: _______, 2002
--------------------------------
XXXXX XXXXXX
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Dated: _______, 2002 RMS TITANIC, INC.
By:________________________________
XXXXX XXXXXX
Its President
APPROVED AS TO FORM:
Dated: _______, 2002 XXXXXXXXX TRAURIG, LLP
By:________________________________
XXXXXXX X. XXXXXXXXX
Attorneys for Xxxx Xxxxxx, Westgate
Entertainment Corporation and Xxxxxxx
& Chase Engineering, NV
Dated: _______, 2002 XXXXXXXXXX & ASSOCIATES
By:________________________________
XXXXXX X. XXXXXXXXXX
Attorneys for RMS Titanic, Inc.
and Xxxxx Xxxxxx
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