SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This
Settlement Agreement and Mutual Release (the “Agreement”), dated April 9, 2007,
is entered into by and between Xxxxxx Xxxxxxxx (“Xxxxxxxx”) and Intra-Asia
Entertainment Corp. (“Intra-Asia”). Visconti and Intra-Asia are sometimes
collectively referred to as the “Parties.”
Recitals
On
September 19, 2005, Visconti filed a lawsuit against Intra-Asia, entitled
Visconti
v. Intra-Asia Entertainment Corp.,
in the
Xxxxxxx Xxxxx, 00xx Xxxxxxxx Xxxxxxx, Xxxx Xxxxx Xxxxxx, Xxxxxxx, Case No.
50-2005-CA008900-XXXX-MB, and on June 16, 2006, Intra-Asia filed an answer
and
counterclaim against Visconti (collectively, the “Action”), with each party
asserting claims arising out of the employment and/or consulting relationship
between the Parties;
Intra-Asia
and Visconti each explicitly deny all allegations of liability made by the
other
in the Action;
By
entering into this Agreement, the Parties do not admit or confirm any of the
claims, allegations, assertions or opinions of the claims against the Parties
in
the Action; and
The
Parties desire to completely and amicably resolve this dispute without further
expense of time or money.
Agreement
NOW
THEREFORE, for and in consideration of the covenants and promises hereinafter
set forth, and for good and valuable consideration, the sufficiency of which
is
acknowledged, the Parties agree as follows:
1. Exercise
of Warrant.
1(a). The
Warrant and Assignment.
On
August 2, 2004, Intra-Asia issued a Stock Purchase Warrant to J. Stephen &
Company, Inc. (“JSC”) for the purchase of 1,600,000 shares of Intra-Asia common
stock at the exercise price of Thirty Five ($0.35) Cents per share (the
“Warrant”). Visconti warrants that the assignment by JSC is valid and in
compliance with the terms of the Warrant and duly authorized by the board of
directors of JSC, and that no other person or entity has a right or interest
in
the Warrant. Copies of the Warrant and assignment are attached hereto and
incorporated by reference herein.
1(b). Notice
and Exercise. Intra-Asia
hereby acknowledges receipt of that certain Notice of Exercise of even date
herewith (the “Notice”) pursuant to which Visconti has elected to fully exercise
his rights in connection with the Warrant. Visconti has elected to exercise
the
Warrant pursuant to its net exercise provision which results the purchase by
Visconti of a total of 851,337 shares of Intra-Asia common stock (the
“Settlement Shares”). Intra-Asia hereby accepts the notice of exercise and upon
execution hereof shall immediately cause its transfer agent to issue the
Settlement Shares to Visconti subject to the terms and conditions of Paragraph
2
of this Agreement. The Parties acknowledge and agree that upon delivery of
the
Settlement Shares to Visconti and the Escrow Agent (as defined below), the
Warrant will have been fully exercised and shall terminate, and the parties
shall have no further rights or obligations whatsoever in connection
therewith.
1(c). Consideration
for Agreement as Payment of Exercise Price.
No
further payment of any kind whatsoever shall be due or payable from Visconti
to
Intra-Asia to exercise the Warrant. The Parties agree and acknowledge that
the
consideration given by Visconti to Intra-Asia in connection with this Agreement
shall constitute payment in full of the Exercise Price set forth on the Warrant
and any and all sums which may otherwise be due and payable from Visconti to
Intra-Asia to exercise the Warrant.
2. Share
Escrow as Settlement Payment.
Visconti and Intra-Asia shall deposit 351,337 of the Settlement Shares (the
“Escrow Shares”) with a mutually acceptable third party escrow or broker (the
“Escrow Agent”). The Escrow Shares shall have a deemed value of Two Hundred
Sixty Three Thousand Five Hundred and Three ($263,503) dollars (the “Settlement
Amount”) based on a price of Seventy Five cents ($0.75) per share. Visconti
shall deliver to the Escrow Agent irrevocable instructions to sell the Escrow
Shares at the agent’s discretion and in an orderly fashion applying ordinary
principles of best execution and to hold the proceeds thereof for the benefit
of
Intra-Asia. A copy of the Escrow Agreement is attached hereto.
3. Dismissal
of the Action.
Within
five (5) days following the deposit of the Escrow Shares with the Escrow Agent,
the Parties shall file a Joint Notice of Voluntary Dismissal With Prejudice,
pursuant to Rule 1.420(a)(1), Florida Rules of Civil Procedure, dismissing
the
action in its entirety. However, the Court shall retain jurisdiction over the
Action for purposes of enforcing the settlement evidenced herein Each party
shall bear its own costs of suit, including attorneys’ fees, incurred in the
Action. This settlement is not dependent upon the court’s entering the
dismissals specified above, but is immediately effective upon the signing of
this Agreement by the Parties.
4. Agreement
Not an Admission.
This
Agreement and the terms set forth herein are not intended and shall not be
construed as an admission that the Parties committed the acts complained of
in
the Action. This Agreement is solely a compromise in settlement of all claims
arising from the Action.
5. Mutual
General Releases Pursuant to Section 46.015, Florida Statutes.
(a) Upon
receipt of the Settlement Shares Visconti, his agents, servants, employees,
,
insurers, affiliates, and all other persons, firms, or corporations with whom
or
which any of them have been, are now, or may hereafter be affiliated, and any
other person or entity claiming through them or on their behalf (collectively,
“Visconti Releasors”), hereby release Intra-Asia, its agents, servants,
employers, employees, , insurers, predecessors and successors-in-interest,
assigns, directors, officers, members, managers, partners, parent corporations,
subsidiaries, affiliates, and all other persons, firms, or corporations with
whom or which any of them have been, are now, or may hereafter be affiliated,
and any other person or entity acting on their behalf (collectively, “Intra-Asia
Releasees”), of and from any and all claims, causes of action, losses, and
liabilities, of any nature whatsoever, whether known or unknown, and whether
arising under statute, contract (express, implied, or otherwise), in tort,
equity, or any other theory of recovery, and whether for compensatory damages,
penalty, or punitive damages, which Visconti now has, or may have ever had,
including but not limited to, any claim in any way relating to or arising out
of
the following: (1) Visconti’s employment and/or consulting relationship
(whether individually or through another entity) with Intra-Asia, (2) the
Action; and (3) any and all acts and omissions alleged, or which could have
been alleged, in the Action, provided however, that nothing in this Agreement
shall be deemed to release any obligations arising under this Agreement.
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(b) Upon
deposit of the Escrow Shares with the Escrow Agent, Intra-Asia, its agents,
servants, employees, , insurers, predecessors and successors-in-interest,
assigns, directors, officers, members, managers, partners, parent corporations,
subsidiaries, affiliates, and all other persons, firms, or corporations with
whom or which any of them have been, are now, or may hereafter be affiliated,
and any other person or entity claiming through them or on their behalf
(collectively, “Intra-Asia Releasors”), hereby releases Visconti, his agents,
servants, , insurers, assigns, affiliates, and all other persons, firms, or
corporations with whom they have been, are now, or may hereafter be affiliated,
and any other person or entity acting on their behalf (collectively, “Visconti
Releasees”), of and from any and all claims, causes of action, losses, and
liabilities, of any nature whatsoever, whether known or unknown, and whether
arising under statute, contract (express, implied, or otherwise), in tort,
equity, or any other theory of recovery, and whether for compensatory damages,
penalty, or punitive damages, which Intra-Asia now has, or may have ever had,
including but not limited to, any claim in any way relating to or arising out
of
the following: (1) Visconti’s employment and/or consulting relationship
(whether individually or through another entity) with Intra-Asia, (2) the
Action; and (3) any and all acts and omissions alleged, or which could have
been alleged, in the Action, provided however, that nothing in this Agreement
shall be deemed to release any obligations arising under this Agreement.
6. Release
as Defense to Action.
Visconti and Intra-Asia agree that this Agreement may be treated as a defense
to
any action or proceeding that may be brought by Visconti and/or Intra-Asia
on
their behalf and shall be a complete bar to the commencement or prosecution
of
any action or proceeding against Visconti and/or Intra-Asia on account of the
damages allegedly sustained by Visconti and/or Intra-Asia based on the
allegations made in the Action.
7. Waiver
of Section 1542.
The
Visconti Releasors and Intra-Asia Releasors hereby expressly waive all rights
under Section 1542 of the Civil Code of the State of California, which provides
as follows:
A
general
release does not extend to claims which the creditor does not know or suspect
to
exist in his or her favor at the time of executing the release, which if known
by him or her must have materially affected his or her settlement with the
debtor.
The
Parties to this Agreement hereby waive and relinquish every right or benefit
which they have or may have under Section 1542 of the Civil Code to the full
extent that they may lawfully waive such right or benefit pertaining to the
subject matter of this Agreement. In connection with such waiver and
relinquishment, each party acknowledges that it is aware that it may later
discover facts in addition to, or different from, those which it knows or
believes to be true with respect to the subject matter of this Agreement, but
that it is its intention to fully, finally, and forever settle and release
all
matters set forth herein. The release given by this Agreement shall be and
remain in effect as a full and complete release notwithstanding the discovery
or
existence of any such additional or different facts.
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8. Representations
and Warranties.
The
Parties warrant and represent that no other person or entity has or has had
any
interest in the rights, claims, demands, obligations or causes of action being
assigned or released in this Agreement; that they have the sole right and
exclusive authority to execute this Agreement; and that they have not sold,
assigned, transferred, conveyed or otherwise disposed of any of the rights,
claims, demands, obligations or causes of actions referred to in this
Agreement.
9. No
Shorting.Visconti
agrees that he will not create a, or continue any existing, short position
in
Intra-Asia’s Common Stock or employ any other device designed to adversely
affect the trading price of the Common Stock.
10. No
Admission of Merits.
The
Parties agree and acknowledge that the consideration specified in this Agreement
is given as a full and complete compromise of matters involving disputed issues;
that neither the consideration provided or exchanged, nor the negotiations
for
this Agreement shall be considered admissions; and that no past or present
wrongdoing or liability on the part of any Party shall be implied by such
exchange of consideration or negotiations.
11. Non-disparagement.
The
Parties agree not to disparage the each other and agree not to engage in any
conduct that reasonably could damage the reputation of the other. Each Party
represents that it has not disparaged the other nor engaged in any other conduct
that reasonably could damage the reputation of the other.
12. Confidentiality.
The
Parties represent and warrant that they have not disclosed and will not disclose
the terms and conditions of this Agreement to any third parties except (i)
to
their accountants, auditors, insurance companies, and attorneys, provided such
persons are informed of this confidentiality requirement; (ii) to their
officers, directors and employees in the regular course of business on a “need
to know” basis; (iii) as required by applicable securities laws; (iv) to state
and federal taxing authorities; (v) as legally required by applicable law;
(vi)
upon the written consent of the other parties; (vii) as compelled by a lawful
subpoena or court order issued by a court of competent jurisdiction; or (viii)
if necessary to enforce this Agreement. The Parties agree that a breach of
this
paragraph will not cause, or result in, a rescission of this Agreement but
instead will subject the breaching Party or Parties to a claim for damages
and/or injunctive relief. The Parties acknowledge and agree that damages may
be
recoverable, but that damages alone will not be adequate relief in the event
this paragraph is breached.
13. Judgment.
The
Parties agree that no judgment has been entered in the Action and that in light
of this Agreement no judgment shall be entered.
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14. Attorneys’
Fees.
In the
event that any action is brought to interpret or enforce the terms of this
Agreement, the prevailing Party or Parties shall be entitled to reasonable
attorneys’ fees and costs in addition to all other relief to which that Party or
those Parties may be entitled.
15. Successors.
This
Agreement shall be binding upon and inure to the benefit of the Parties and
their respective agents, servants, employees, contractors, subcontractors,
attorneys, insurers, predecessors and successors in interest, assigns,
directors, officers, members, managers, partners, parent corporations,
subsidiaries, affiliates, and all other persons, firms, or corporations with
whom or which any of them have been, are now, or may hereafter be
affiliated.
16. Controlling
Law, Jurisdiction, and Venue.
This
Agreement shall be interpreted in accordance with and governed in all respects
by the laws of the State of Florida without regard to any conflicts of laws
rules or doctrine. In any proceeding involving, directly or indirectly, any
matter arising out of or related to this Agreement or the relationship evidenced
hereby or thereby, the parties hereby irrevocably submit to the exclusive
jurisdiction of the Florida Circuit Court. Venue shall be appropriate only
in
the 15th Judicial Circuit, Palm Beach County, Florida and any claims that such
Court constitutes an inconvenient forum are hereby irrevocably
waived.
17. Severability.
If any
provision of this Agreement is held to be illegal, invalid or unenforceable
under present or future laws effective during the term of this Agreement, such
provision shall be fully severable.
18. Fair
Interpretation.
This
Agreement is the product of negotiations between the Parties and their
respective attorneys, and shall be given fair interpretation. Each of the
Parties hereto expressly acknowledges and agrees that this Agreement shall
be
deemed to have been mutually prepared so that the rule of construction to the
effect that ambiguities are to be resolved against the drafting Party shall
not
be employed in the interpretation of this Agreement. The releases herein are
to
be construed broadly so as to provide the broadest possible protection for
the
persons or entities hereby released.
19. Parties
Advised by Counsel.
The
Parties represent and warrant to each other that they have been represented
by
counsel with respect to this Agreement and all matters covered by and relating
to it, that they have been fully advised by such counsel with respect to their
rights and with respect to the execution of this Agreement, and that such
counsel are authorized and directed to take all action necessary to effect
the
purposes of this Agreement.
20. Entire
Agreement.
This
Agreement constitutes the entire agreement among the Parties, and it is
expressly understood and agreed that this Agreement may not be altered, amended,
modified, or otherwise changed in any respect or particular whatsoever, except
by a writing duly executed by the Parties, or their authorized representatives,
and the Parties acknowledge and agree that none of them will make any claim
at
any time or place that this Agreement has been orally altered or modified in
any
respect whatsoever.
21. Authority
to Enter Into Agreement.
Each
individual executing this Agreement on behalf of any Party hereto represents
and
warrants to the other Parties that such individual is authorized to enter into
this Agreement on behalf of that Party and that this Agreement binds that
Party.
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22. Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
constitute a duplicate original, but all of which together shall constitute
one
and the same document. Any counterpart of this Agreement may be executed and
delivered to any party via facsimile provided a manually executed counterpart
is
later delivered to the other parties.
23. Effective
Date.
This
Agreement shall not be binding or of any force or effect unless and until it
is
executed and delivered by all Parties. The effective date of this Agreement
shall be the date it becomes executed and delivered by all Parties.
24. Cooperation.
All
Parties agree to cooperate fully and execute any and all supplementary documents
and to take all additional actions which may be necessary or appropriate to
give
full force and effect to the basic terms and intent of this Agreement.
25. Prior
Agreements Superseded.
This
Agreement supersedes any written or oral agreements, understandings, or
communications, concerning the subject matter(s) of this Agreement.
26. Intent.
It is
the intent of the Parties to this Agreement that this Agreement shall be a
full
and final settlement agreement and mutual release pertaining to the Action
and
as specifically stated in the Agreement.
IN
WITNESS WHEREOF, intending to be legally bound hereby, the parties hereto have
executed and delivered this Agreement as of the date first written
above.
Dated:
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Xxxxxx
Xxxxxxxx
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Dated:
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Intra-Asia
Entertainment Corp.
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By:
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Name:
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Its:
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