SETTLEMENT AGREEMENT
WHEREAS,
Xxxxx Xxxxxxxxxx and RJS Consulting Group, Inc. a New York corporation
(collectively “RJS”), commenced an action in the Supreme Court of New York, New
York County, against Digital Creative Development Corp., a Utah corporation,
and
Digital Creative Development Corporation, a Delaware corporation, (collectively
“DCDC”), and others, Index No. 602399/02 (the “Action”); and
WHEREAS,
certain parties to the Action are now desirous of resolving their differences
without further litigation;
IT
IS
HEREBY AGREED, by and between the parties hereto, for good and valuable
consideration, this __ day of January, 2003 as follows:
1. The
Closing
- The
Closing shall occur simultaneous with the signing of this Settlement Agreement.
At the Closing, DCDC shall deliver to RJS: (i) a bank check in the amount of
Three Hundred Thousand Dollars ($300,000); (ii) a stock power authorizing the
immediate transfer of 500,000 shares of shares of common stock, no par value,
of
International Microcomputer Software, Inc. (“IMSI”) (the “Stock”) and all
documents necessary to effect the immediate transfer of the Stock to RJS; (iii)
a duly executed General Release in the form annexed as Exhibit A (the
“Release”); and (iv) an executed Stipulation of Discontinuance with prejudice in
the form annexed as Exhibit C. At the Closing, RJS shall deliver to DCDC: (i)
a
duly executed General Release in the form annexed as Exhibit B and (ii) an
executed Stipulation of Discontinuance in the Action in the form annexed as
Exhibit C.
2. Termination
of agreements:
Effective upon the Closing, the Memorandum of Agreement dated October 30, 2001
between RJS and DCDC, and any amendments thereto, and all agreements between
RJS
and DCDC, or any of its wholly-owned subsidiaries, shall be deemed to be
terminated. There are no agreements between the parties hereto except as set
forth in this Settlement Agreement and no party shall have any rights as against
the other except as set forth herein.
3. Representation
and Warranties
A. RJS
represents that:
(i) either
or
both are true and lawful owners of all claims covered by the Release and have
full power and authority to effectuate this agreement and its
Release;
(ii) no
representations have been made by DCDC or any of its present or former officers,
directors, or any other person, regarding the Stock, its present or future
value, IMSI, its financial condition or business prospects, or any matters
pertaining thereto;
(iii) RJS
has
been afforded an opportunity to conduct due diligence regarding the Stock and
is
acquiring the Stock based solely upon the information available through IMSI’s
public filings with the SEC and not upon any information obtained from DCDC
or
any other party to this Agreement;
(iv) RJS
is
acquiring the Stock for investment purposes only and not with any view toward,
or for sale in connection with, any distribution thereof, nor with any present
intention of distributing or selling the shares, in contravention of any rules
or regulations promulgated under the Securities Act of 1933 as amended
(“Securities Act”). RJS acknowledges that the Stock is not registered with the
SEC for sale in the public markets, and may not be sold, transferred, offered
for sale, pledged, hypothecated, or otherwise disposed of without registration
under the Securities Act, except pursuant to an exemption from registration
available under the Securities Act, and except in accordance with applicable
provisions of state securities laws.
(v) No
representation has been made to RJS by any person concerning the availability
of
the Stock for resale in any manner other than through an effective registration
statement filed with the Securities and Exchange Commission.
(vi) This
agreement has been negotiated at arm’s length between the parties.
B. DCDC
represents that:
(i) it
has
the full power and authority (corporate and other) to enter into and fully
perform this agreement, which agreement has been approved by its
Board;
(ii) it
owns
the Stock free and clear of all claims, liens and encumbrances and has full
power and authority to transfer the Stock to RJS pursuant to this
Agreement;
(iii) DCDC
has
not assigned or transferred to any person (nor otherwise disposed of) any
liability, claim or cause of action that is within the scope of those claims
that it has released.
4. Additional
Covenants:
A. Each
party hereto will not, for any reason, contradict or challenge the amount of
funds paid pursuant hereto or the number of shares comprising the Stock; each
acknowledges that this settlement comprises claims that are of uncertain value;
each assumes the risk of any error or miscalculation in assessing those
claims.
B. Each
of
Xxxxx X. Xxxxxxxxxx and RJS Consulting Corp., shall be barred from commencing
any action against any of the Releasees identified on Exhibit A
hereto.
C. Each
of
the Releasees identified on Exhibit A hereto shall be barred from commencing
any
action against Xxxxx X. Xxxxxxxxxx or RJS Consulting Corp.
D. In
the
event that any action is brought to enforce this Agreement, the prevailing
party
shall be entitled to recover his reasonable attorneys fees.
5. Miscellaneous
A. No
further obligations shall exist with respect to any and all prior or outstanding
agreements or promises, written or oral, between RJS, on the one hand, and
DCDC,
or any of its wholly-owned subsidiaries or past or present officers or
directors, on the other, other than any obligations created pursuant to this
Settlement Agreement.
B. This
Settlement Agreement contains the complete agreement of the parties. In entering
into this Settlement Agreement, no party is relying upon any representation,
commitment, warranty, promise or other statement by any other party unless
expressly set forth in this Settlement Agreement.
C. This
Settlement Agreement shall not be modified except in writing executed by all
parties.
D. This
Settlement Agreement constitutes a compromise of disputed claims and is not
to
be interpreted or construed as an admission by any party of any wrongdoing
or
omission of any kind.
E. If
at any
time after the date of execution of this Settlement Agreement, any provision
of
this Settlement Agreement is held to be illegal, void, or unenforceable, that
provision will not have any effect on, and will not impair the enforceability
of, any other provision of this Settlement Agreement.
F. The
parties agree not to engage in any form of conduct, or make any statement or
representation (whether written or oral), that disparages the other
party.
G. The
parties represent and warrant that they have not assigned or transferred to
any
other party all or any portion or any claim released pursuant to this Settlement
Agreement.
H. This
Settlement Agreement is binding upon, and shall inure to the benefit of, the
parties and their respective heirs, executors, administrators, successors and
assigns.
I. The
Settlement Agreement shall be governed by the laws of the State of New York,
without regard to the conflict of laws principles of the State. Each party
agrees to submit to the exclusive jurisdiction of the Courts of New York, New
York County in any dispute arising out of or concerning this Settlement
Agreement.
J. Each
person signing below represents that such person has the authority to bind
the
indicated principal.
K. This
Settlement Agreement may be executed in counterparts.
L. Each
party shall execute such additional documents, or take any further steps that
may be reasonably required to effectuate this Settlement Agreement.
_________________________________
XXXXX
XXXXXXXXXX
_________________________________
RJS
CONSULTING CORP.
DIGITAL
CREATIVE DEVELOPMENT CORPORATION, a Utah corporation
By: _________________________________
DIGITAL
CREATIVE DEVELOPMENT CORPORATION, a Delaware corporation
By:_________________________________
____________________________________
XXXXX
XXXXXXXX
____________________________________
XXXXXX
XXXX III
____________________________________
XXXX
XXXX
____________________________________
SKULI
THORVALDSSON
____________________________________
XXXX
XXXXXX
____________________________________
SIGURDUR
XXX XXXXXXXXX
____________________________________
XXXXXX
XXXXXX
Exhibit
A
RELEASE
TO
ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW
THAT
XXXXX
X.
XXXXXXXXXX, RJS CONSULTING CORP., and each of its officers, directors,
affiliates and subsidiaries
as
RELEASORS,
in
consideration of the sum of Ten Dollars and No Cents in lawful currency of
the
United States of America ($10.00) and for other good and valuable consideration,
received from
DIGITAL
CREATIVE DEVELOPMENT CORPORATION, a Delaware Corporation; DIGITAL CREATIVE
DEVELOPMENT CORPORATION, a Utah Corporation; XXXXX XXXXXXXX; XXXXXX XXXX III;
XXXXXX XXXXXX; XXXX XXXX; SKULI THORVALDSSON; XXXX XXXXXX; SIGURDUR XXX
XXXXXXXXX,,
as
RELEASEES,
receipt
whereof is hereby acknowledged, release and discharge the RELEASEES, and the
RELEASEES’ past and present officers and directors, attorneys, subsidiaries,
affiliates, heirs, executors, administrators, successors and assigns, from
all
actions, causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, extents,
executions, claims, and demands whatsoever, in law, admiralty or equity, which
against the RELEASEES, the RELEASORS, and the RELEASORS’ heirs, executors,
administrators, successors and assigns, ever had, now have, or hereafter can,
shall, or may have, for, upon, or by reason of any matter, cause, or thing
whatsoever, from the beginning of the world to the day of the date of this
RELEASE, PROVIDED, however, that this Release shall not extend to any rights
or
obligations set forth in that certain Settlement Agreement of even date
herewith.
Whenever
the text hereof requires, the use of gender or singular number shall include
the
appropriate gender or plural number as the text of the within instrument may
require.
This
RELEASE may not be changed orally.
IN
WITNESS WHEREOF,
each of
the RELEASORS has hereunto set his hand on the _____ day of January
2003.
_________________________________
XXXXX
XXXXXXXXXX
RJS
CONSULTING CORP.
By:_________________________________
Exhibit
B
RELEASE
TO
ALL TO WHOM THESE PRESENTS SHALL COME OR MAY CONCERN, KNOW
THAT
DIGITAL
CREATIVE DEVELOPMENT CORPORATION, a Delaware Corporation; DIGITAL CREATIVE
DEVELOPMENT CORPORATION, a Utah Corporation; XXXXX XXXXXXXX; XXXXXX XXXXXX;
XXXXXX XXXX III; XXXX XXXX; SKULI THORVALDSSON; XXXX XXXXXX; SIGURDUR XXX
XXXXXXXXX,
as
RELEASORS,
in
consideration of the sum of Ten Dollars and No Cents in lawful currency of
the
United States of America ($10.00) and for other good and valuable consideration,
received from
XXXXX
X.
XXXXXXXXXX, RJS CONSULTING CORP., and each of its affiliates and
subsidiaries
as
RELEASEES,
receipt
whereof is hereby acknowledged, release and discharge the RELEASEES, and the
RELEASEES’ past and present officers and directors, attorneys, subsidiaries,
affiliates, heirs, executors, administrators, successors and assigns, from
all
actions, causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, extents,
executions, claims, and demands whatsoever, in law, admiralty or equity, which
against the RELEASEES, the RELEASORS, and the RELEASORS’ heirs, executors,
administrators, successors and assigns, ever had, now have, or hereafter can,
shall, or may have, for, upon, or by reason of any matter, cause, or thing
whatsoever, from the beginning of the world to the day of the date of this
RELEASE, PROVIDED, however, that this Release shall not extend to any rights
or
obligations set forth in that certain Settlement Agreement of even date
herewith.
Whenever
the text hereof requires, the use of gender or singular number shall include
the
appropriate gender or plural number as the text of the within instrument may
require.
This
RELEASE may not be changed orally.
IN
WITNESS WHEREOF,
each of
the RELEASORS has hereunto set his hand on the _____ day of January
2003.
____________________________________
DIGITAL
CREATIVE DEVELOPMENT CORPORATION, a Utah corporation
____________________________________
DIGITAL
CREATIVE DEVELOPMENT CORPORATION, a Delaware corporation
____________________________________
XXXXX
XXXXXXXX
____________________________________
XXXXXX
XXXX III
____________________________________
XXXX
XXXX
____________________________________
SKULI
THORVALDSSON
____________________________________
XXXX
XXXXXX
____________________________________
SIGURDUR
XXX XXXXXXXXX
____________________________________
XXXXXX
XXXXXX
Exhibit
C
SUPREME
COURT OF THE STATE OF NEW YORK
COUNTY
OF
NEW YORK
------------------------------------------------------------------------X
XXXXX
X.
XXXXXXXXXX, an individual, and RJS :
CONSULTING
CORP., a New York corporation, : Index
No.
602399/02
:
Plaintiffs, : I.A.S.
Pt. 35
: Justice
Xxxxxxx X. Xxxxx
-
against
- :
:
:
DIGITAL
CREATIVE DEVELOPMENT :
CORPORATION,
a Delaware corporation; : STIPULATION
OF
DIGITAL
CREATIVE DEVELOPMENT : DISCONTINUANCE
CORPORATION,
a Utah corporation; :
INTERNATIONAL
MICROCOMPUTER :
SOFTWARE,
INC., a California corporation; :
XXXXX
X.
XXXXXXXX; XXXXXX XXXX, III; :
XXXXXX
XXXXXX; XXXX XXXX; SKULI :
THORVALDSSON;
XXXX XXXXXX; :
SIGURDUR
XXX XXXXXXXXX; and DOES 1 :
through
20, inclusive, :
:
Defendants. :
------------------------------------------------------------------------X
IT
IS
HEREBY STIPULATED AND AGREED, by the attorneys for the undersigned parties
hereto that:
1. Plaintiffs
hereby discontinue the within action against all defendants, other than
International Microcomputer Software, Inc., with prejudice, and with each party
to bear its own costs, expenses and attorneys fees. Each defendant herein,
other
than International Microcomputer Software, Inc., hereby waives and discontinues
with prejudice any counterclaim that might have been asserted in this
proceeding.
2. No
party
hereto is an infant, incompetent person for whom a committee has been appointed
or conservatee and no person not a party has an interest in the subject matter
of the action.
Dated: January
__, 2003
SBEGLIA
& SHAMES
By:_____________________________
Xxxx
X.
Xxxxxx
000
Xxxxxxxx, Xxxxx 000
Xxx
Xxxx,
XX 00000
(000)
000-0000
Attorneys
for Plaintiff
Xxx
X.
Xxxxxx, Esq.
Xxxxx
X.
Xxxxxxxx, Esq.
LAW
OFFICES OF XXX X. XXXXXX
0000
Xxxxxxx Xxxx Xxxx, 00xx
Xxxxx
Xxx
Xxxxxxx, XX 00000
(000)
000-0000
XXXXXX
XXXXXXXX FROME XXXXXXXXXX
&
XXXXXXX LLP
By:_______________________________
Xxxxxx
X.
Xxxxxxx
000
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
(000)
000-0000
Attorneys
for defendants DCDC, Xxxxxxxx, and Xxxxxx
