Exhibit 10.1
SETTLEMENT AGREEMENT
--------------------
This SETTLEMENT AGREEMENT ("Agreement") is made and effective as of
this April 24, 1998 by and among (i) Sound Source Interactive, Inc. (the
"Company"), a Delaware corporation, (ii) ASSI, Inc. ("ASSI"), a Nevada
corporation, (iii) NCD, Inc. ("NCD"), a Delaware corporation, (iv) The Boston
Group, L.P. ("TBG"), a California limited partnership, (v) Xxxxxxx X. Xxxxxxx
("VJB"), an individual resident of Los Angeles County, California, (vi) Xxxxxx
X. Xxxxxxxxxxx ("UEG"), an individual resident of Orange County, California,
(vii) Xxxx X. Xxxxx ("MAJ"), an individual resident of Las Vegas, Nevada, and
(viii) Xxxxxx X. Xxxxx ("RGK"), an individual resident of Xxxxxxxxxx County,
Maryland (each individually a "Party" and collectively the "Parties").
R E C I T A L S
WHEREAS, disputes have arisen among the Parties including without
limitation the legal proceedings currently pending in Los Angeles Superior Court
and bearing case numbers LASC BC 187 656 ("Lawsuit #1") and LASC BC 188 459
("Lawsuit #2") which have to date resulted in the issuance of a temporary
restraining order in each case (the "Temporary Restraining Orders") enjoining
the Company, VJB, and UEG from holding directors' meetings consisting of a board
of directors of more than 5 members of which 2 are nominees of TBG and 1 is a
nominee of ASSI and;
WHEREAS, the Parties now desire to irrevocably and forever settle by
agreement all pending and past disputes between them, including without
limitation the issuance of the Temporary Restraining Orders;
A G R E E M E N T
NOW THEREFORE, in consideration of the mutual promises, the releases
contained herein, the payments described in Sections 5.1 and 5.2 hereof, and
other consideration, the value, sufficiency, and receipt of which are hereby
acknowledged, the Parties agree as follows.
ARTICLE I
MUTUAL RELEASES AND DISMISSAL OF
--------------------------------
PENDING LITIGATION
------------------
Section 1.1 Release of Claims. Each of the Parties (a "Releasing
-----------------
Party") on behalf of itself and its employees, partners, agents, subsidiaries,
officers, directors, and all others claiming through it hereby jointly and
severally forever and irrevocably releases and discharges each of the other
Parties, Xxxxx Xxxxxx, Xxxx Xxxxx, Xxxx Xxxxxxxx, Xxxxxx Xxxxxxx, Xxxxxx Xxxx,
Xxxxxx Xxxxx, Xxxxxxx Xxxxxxx, Xxxxxx XxXxxxxx, Xxxxxx Xxxxxxx, Xxxxxx Xxxxx,
Xxxxxx Xxxxxxx & Co., L.P., the law firm of Jeffer, Mangels, Xxxxxx & Marmaro
LLP, the law firm of Xxxxx, Xxxxxx & Xxxxx (and the law firm of Xxxxx, Driggs,
Walch, Xxxxxxx & Xxxxxxxx), the law firm of XxXxxxxxx, Will & Xxxxx, the law
firm of Nateman & Kalik, LLP, the law firm of Clarkson, Gore & Xxxxxxxx, APLC,
the law firm of Xxxxxxx & Beam, the law firm of Xxxxxxxx & Xxxxx, and Xxxxx
Xxxxxx and their respective employees, partners, officers, directors, agents,
shareholders, subsidiaries, successors, and assigns (each a "Released Person")
from any and all claims, losses, demands, liabilities, obligations,
indemnities, charges, and causes of action (collectively "Claims") of any and
all nature whatsoever whether based on tort, contract, statute, equitable theory
of recovery, or otherwise, whether now known, unknown, unforeseen, or
unsuspected, which the Releasing Party may now or in the future have jointly or
severally against the Released Persons individually or in combination with
others from the beginning of time until the date of this Agreement and which
arise out of any Released Person's activities to the date hereof with respect
to, or are in any way connected with, the Company, including without limitation
the issuance, acquisition, ownership, holding, or voting of any securities of
the Company, the management or conduct of the Company's affairs by any Party
acting as or entitled to nominate a member (or observer) of the Company's Board
of Directors, and all Claims asserted by any Party in Lawsuit #1 or Lawsuit #2;
provided that the releases and discharges contained herein do not apply to the
Claims (a) by the Company, VJB or TBG pursuant to the indemnification provisions
of that certain Underwriting Agreement dated July 1, 1996, among TBG, Xxxxxx
Xxxxxxx & Co., L.P., the Company, VJB, and Xxxx Xxxxxxx or pursuant to
indemnification and contribution rights and obligations available under
applicable law with respect to Claims of third parties against any Party, or (b)
by the Company to the extent the giving of such release or discharge would
violate a director's fiduciary duty to the Company, its stockholders, or its
creditors.
Section 1.2 Dismissal of Lawsuit #1. Concurrently with the execution
-----------------------
and delivery of this Agreement, ASSI, MAJ, and NCD will deliver a fully executed
dismissal of action in the form of Exhibit A hereto to the Company, which the
Company will promptly file in the Superior Court of the State of California for
the County of Los Angeles.
Section 1.3 Dismissal of Lawsuit #2. Concurrently with the execution
-----------------------
and delivery of this Agreement, TBG will deliver a fully executed dismissal of
action in the form of Exhibit B hereto to the Company, which the Company will
promptly file in the Superior Court of the State of California for the County of
Los Angeles.
Section 1.4 Waiver of Section 1542. Each Party hereby irrevocably
----------------------
and forever expressly waives any right or claim or right to assert hereafter
that any claim, loss, demand, liability, obligation, indemnity, charge, or cause
of action has through ignorance, oversight, or error been omitted from the terms
of this Agreement and further expressly waives any right or claim that it may
have under the law of any jurisdiction to the effect that releases and
discharges (such as those given herein) do not apply to unknown or unstated
claims. It is the express intent of the Parties that each Party hereby waives
any and all claims it may have related to the subject matter of this Settlement
Agreement, including any which are presently unknown, unsuspected,
unanticipated, or undisclosed. Each Party expressly waives the provisions of
Section 1542 of the Civil Code 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 favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor.
Section 1.5 Certain Trial or Appeal Rights. Each Party hereby
------------------------------
irrevocably and forever expressly waives any rights it may have with respect to
any one or more other Parties to proceed to trial or to appeal any matter
relating to Lawsuit #1, Lawsuit #2, or the Temporary Restraining Orders and all
2
such Party's rights under Section 473 of the Code of Civil Procedure of
California.
ARTICLE II
CORPORATE RESTRUCTURING
------------------------
Section 2.1 Resignations. Within 5 business days after the execution
------------
and delivery of this Agreement, the Company, UEG, and VJB will deliver to the
Secretary of the Company, ASSI and TBG fully executed resignations of Xxxxx
Xxxxxx, Xxxx Xxxxx, Xxxx Xxxxxxxx, and Xxxxxx Xxxxx in the form attached hereto
as Exhibit C.
Section 2.2 Bylaws; ASSI Consent. The Company's Bylaws will
--------------------
concurrently with the execution and delivery of this Agreement be amended and
restated by the Company's Board of Directors as set forth in Exhibit D, which
among other things provides for the authorized number of directors to be changed
to 7 and ASSI will, concurrently with the execution and delivery of this
Agreement, execute and deliver its consent to such amendment in the form
attached hereto as Exhibit E ("Consent").
Section 2.3 Recapitalization. Concurrently with the execution and
----------------
delivery of this Agreement all warrants to acquire the Company's common stock
par value $.001 ("Common Stock") currently held by ASSI (being 4,816,657
warrants) will be exchanged (the "Exchange") for 1,100,000 shares of the
Company's Common Stock upon terms and conditions whereby provisions relating to
registration rights as may be enhanced by supplemental agreements and any other
rights and privileges of ASSI to be enjoyed upon an exercise of the warrants
will survive in full force and effect and without any diminution. ASSI will
execute and deliver a lock-up agreement in the form of Exhibit F hereto upon
consummation of the Exchange. The Parties acknowledge that this Agreement
effects multiple settlements and agree that the value of the Claims (as affect
the warrants) which ASSI has against the Company and which ASSI has released and
discharged herein has been factored into the Exchange. Pursuant to (P)5(t) of
the Underwriting Agreement (if applicable), TBG consents to the Exchange and
will on or before the Exchange obtain and deliver to ASSI and the Company the
written consent (if required) of Xxxxxx Xxxxxxx & Company, L.P.
Section 2.4 Approval of Transactions; Corporate Governance.
----------------------------------------------
(a) Concurrently with the execution and delivery of this Agreement,
the Board of Directors consisting of VJB, UEG, and MAJ (in accordance with the
Temporary Restraining Orders) and acting by unanimous written consent in the
form attached hereto as Exhibit G will approve the transactions contemplated by
this Agreement and take such further actions as are set forth therein, including
without limitation acceptance of the resignations described in Section 2.1,
amendment of the Bylaws as described in Section 2.2, approval of the Exchange,
approval of the employment arrangements described in Article III, and the
election of directors to fill all vacancies on the expanded Board of Directors
("New Board of Directors"). Each party which has nominated one or more directors
as reflected in Exhibit G, to its best knowledge, represents and warrants that
its nominee(s) will accept election.
(b) The Company will hold its 1997 annual stockholders meeting on or
before June 30, 1998 ("1997 Annual Meeting") and its 1998 annual stockholders
meeting on or before December 31, 1998 ("1998 Annual Meeting").
3
(c) (i) The Company's slate of directors for the 1997 Annual Meeting
will be as follows:
VJB (as a nominee of VJB to the extent permitted by the
Stockholder Voting Agreement dated as of April 30,
1996 between the Company, VJB, Xxxx Xxxxxxx, and ASSI
and the Consent)
UEG (as a 2nd nominee of VJB to the extent permitted by
the Stockholder Voting Agreement and the Consent)
Xxxxxxx Xxxxxxx (as a nominee of TBG under the Underwriting
Agreement)
Xxxxxx Xxxxx (as a 2nd nominee of TBG under the Underwriting
Agreement)
MAJ (as a nominee of ASSI to the extent permitted by the
Stockholder Voting Agreement and the Consent)
Xxxxx Xxxxxx (as the Expansion Member nominee of VJB as provided
in the Consent)
Xxxx Xxxxxxxx (as the Expansion Member nominee of ASSI as provided
in the Consent).
(ii) At the 1997 Annual Meeting, the Company will submit the
transactions in Article II (except Sections 2.1, 2.3, 2.5 and 2.6) and Article
III of this Agreement for stockholder approval together with such other matters
as the New Board of Directors may deem advisable.
(d) The Company's slate of directors for a 7 person board of directors
at the 1998 Annual Meeting will be as follows:
VJB (as a nominee of VJB to the extent permitted by
the Stockholder Voting Agreement and the Consent)
a person selected (as a 2nd nominee of VJB to the extent permitted
by the
by VJB Stockholder Voting Agreement and the Consent)
Xxxxxxx Xxxxxxx (as a nominee of TBG under the Underwriting
Agreement)
Xxxxxx Xxxxx (as a 2nd nominee of TBG under the Underwriting
Agreement)
a person nominated (as a nominee of ASSI to the extent permitted by
by ASSI the Stockholder Voting Agreement and the Consent)
Xxxxx Xxxxxx (as the Expansion Member nominated by VJB as
provided in the Consent)
4
Xxxx Xxxxxxxx (as the Expansion Member nominee of ASSI as
provided in the Consent).
Section 2.5 CFO. The Company (acting through the New Board of
---
Directors or a committee thereof) will identify and engage a qualified chief
financial officer within 90 days or as soon as otherwise practicable as
determined by such board or committee.
Section 2.6 Filings. All governmental securities filings will be
-------
submitted to each member of the New Board of Directors for his review and
approval prior to the filing thereof by the Company, VJB, or UEG. The Parties
hereto approve the filing of SEC Form 8-K Report in the form attached hereto as
Exhibit K.
ARTICLE III
EMPLOYMENT AGREEMENTS
---------------------
Section 3.1 VJB Contract.
------------
(a) Concurrently with execution and delivery of this Agreement, VJB
and the Company will execute and deliver an employment agreement in the form
attached hereto as Exhibit H ("VJB Employment Agreement") as previously
negotiated by the compensation committee of the Company's then Board of
Directors which the Company may in its discretion submit to the New Board of
Directors (or the compensation committee thereof) for approval.
(b) Pursuant to (P)5(x) of the Underwriting Agreement, TBG hereby
consents to the terms and conditions of the VJB Employment Agreement.
Section 3.2 UEG Contract.
------------
(a) Concurrently with the execution and delivery of this Agreement,
UEG and the Company will execute and deliver a memorandum of employment terms in
the form attached hereto as Exhibit I ("UEG Employment Memorandum") which the
Company may submit to the New Board of Directors (or the compensation committee
thereof) for action.
(b) Pursuant to (P)5(x) of the Underwriting Agreement, TBG hereby
consents to the terms and conditions of the UEG Employment Memorandum subject to
any review and ratification by the New Board of Directors or the compensation
committee thereof and any recommendations made thereby.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
------------------------------
Section 4.1 Each of the Parties represents and warrants to each other
Party as follows.
(a) It has not heretofore assigned, transferred, or otherwise
hypothecated to any person (other than as contemplated by Section
1.1 of this Agreement) any of its Claims and will not hereafter
do so, except as expressly permitted by this Agreement.
5
(b) All Claims of such Party are free and clear of all liens,
encumbrances, and rights of others and may be released and
discharged without the consent or approval of or notice to any
other person, including without limitation any governmental
agency.
(c) It has had the opportunity to consult with, and the benefit of,
legal counsel of its own choosing with respect to the
negotiation, execution, delivery, and performance of this
Agreement and the transactions contemplated hereby. Prior to the
execution of this Agreement by such Party, its attorney reviewed
the Settlement Documents (defined below), made all changes (if
any) necessary for the Settlement Documents to be acceptable to
such Party, and fully explained the provisions thereof to such
Party with respect to the advisability of making the settlements
and agreements provided herein. Such Party has read the
Settlement Documents and is fully aware of and understands all
the terms, conditions, and legal consequences thereof.
(d) It has not relied on any promise, representation, or warranty
whatsoever, express or implied, made by another Party and not
contained in the Settlement Documents in determining whether to
execute and deliver this Agreement and any other Settlement
Documents.
(e) This Agreement (and any other Settlement Documents to which such
Party is a party) has been duly executed and delivered by it and,
when duly executed and delivered by all other parties thereto (if
any), is legal, valid, and binding obligations of such Party
enforceable against it in accordance with its terms.
ARTICLE V
OTHER AGREEMENTS
----------------
Section 5.1 Certain Directors Fees. Concurrently with execution and
----------------------
delivery of this Agreement, the Company will pay to MAJ $5,000 as accrued unpaid
directors fees and to Xxxxxx Xxxx $2,500 as accrued unpaid directors fees
against an appropriate receipt from the payee acknowledging payment in full.
Section 5.2 Legal Fees. (a) The Company will promptly pay the legal
----------
fees of various Parties as follows:
(i) the Company: (A) counsel's fees and costs of negotiation,
preparation, review and closing of this Agreement and the other Settlement
Documents by company check to XxXxxxxxx, Will & Xxxxx; (B) unpaid accrued legal
fees for services rendered in connection with other matters to Xxxxx, Xxxxxx &
Xxxxx by company check in the amount of $5,467.43; and (C) counsel's fees and
costs incurred in connection with various securities advice rendered to the
Company and with Lawsuit #1 and Lawsuit #2 to Xxxxxxx & Beam;
(ii) VJB and UEG: counsel's fees and costs incurred in connection
with Lawsuit #1 and Lawsuit #2 as directors and the costs of negotiation,
preparation, review, and closing of this Agreement and the other Settlement
Documents by company check to Xxxxxxxx & Xxxxx; and
6
(iii) RGK: counsel's fees and incurred costs in connection with
Lawsuit #1 and the costs of negotiation, preparation, review, and closing of
this Agreement and the other Settlement Documents by company check to Clarkson,
Gore & Xxxxxxxx, APLC in the amount of $2,750.
(b) The Company will not be obligated to pay any other Party's legal fees
(except pursuant to Section 6.8). To the extent the Company receives any
proceeds of insurance (or from other sources) as reimbursement of any Party's
fees in connection with Lawsuit #1, Lawsuit #2, or other matters related
thereto, the Company will retain such amounts.
Section 5.3 Effect On Other Agreements. The Parties hereto ratify
--------------------------
and confirm that the Stockholder Voting Agreement and Underwriting Agreement
(including without limitation the rights of TBG to indemnification thereunder
and the assignment of the Xxxxxx Xxxxxxx & Co. director nomination rights) are
in full force and effect and nothing contained in this Agreement or the other
Settlement Documents, unless expressly set forth therein, in any way modifies,
amends, or changes the provisions of such agreements.
Section 5.4 Side Arrangements.
-----------------
(a) Each Party hereto acknowledges and agrees that in order to achieve
the settlements contained herein one or more Parties may have arrangements with
other Parties not contained herein. Nothing in this Section 5.4 or any such
arrangements will in any way affect the representation and warranty of a Party
contained in Section 4.1.
(b) The Parties acknowledge and agree that pursuant to this Section
5.4 ASSI may pay the legal fees of one or more Parties other than itself.
Section 5.5 Third Party Beneficiary Consent. To the extent any Party
-------------------------------
considers itself a third party beneficiary of the Stockholder Voting Agreement
or the Underwriting Agreement, such Party hereby consents to any action by a
Party hereunder with respect thereto.
ARTICLE VI
MISCELLANEOUS
-------------
Section 6.1 Notices. All notices, consents, approvals, and other
-------
communications required or permitted hereunder will be in writing; will be
deemed to have been given when actually received; will be delivered either
personally (such as by hand delivery or overnight or other receipted delivery
service) or by certified or registered mail, return receipt requested, postage
prepaid affixed; and will be addressed to the recipient as follows:
If to the Company, with a copy to,
Sound Source Interactive, Inc. XxXxxxxxx, Will & Xxxxx
00000 Xxxxxx Xxxx 000 00xx Xxxxxx, X.X.
Xxxxx X Xxxxxxxxxx, X.X. 00000-0000
Xxxxxxxxx, XX 00000-0000 Attention: Xxxx X. XxXxxxxxxx, Esq.
7
if to ASSI or NCD, with a copy to,
Xxxxx, Driggs, Walch, Xxxxxxx & Xxxxxxxx Xxxxxxx Tschopik, Esq.
3773 Xxxxxx Xxxxxx Parkway, Xxxxx 000-X Xxxxx 000
Xxx Xxxxx, XX 00000 000 Xxxxxxxx Xxxxxxxxx
Attn: Xxxx X. Xxxxx, Esq. Xxx Xxxxxxx, XX 00000-0000
if to TBG, with a copy to,
The Boston Group, L.P. Heller, Ehrman, White & XxXxxxxxx
0000 Xxxxxxx Xxxx Xxxx 000 Xxxxx Xxxxxxxx Xxxxxx
00xx Xxxxx Xxx Xxxxxxx, XX 00000
Xxx Xxxxxxx, XX 00000 Attention: Xxxxxx Xxxxxx, Esq.
if to VJB, with a copy to,
Xxxxxxx X. Xxxxxxx Xxxxxxxx & Xxxxx
Chairman and Chief Executive Officer 000 Xxxxx Xxxxxx Xxxxxx
Sound Source Interactive, Inc. Sixth Floor
00000 Xxxxxx Xxxx, Xxxxx X Xxx Xxxxxxx, XX 00000
Xxxxxxxxx, XX 00000-0000 Attn: Xxxxxxx X. Xxxxx, Esq.
if to UEG, with a copy to,
Xxxxxx X. Xxxxxxxxxxx Xxxxxxxx & Xxxxx
President 000 Xxxxx Xxxxxx Xxxxxx
Sound Source Interactive, Inc. Sixth Floor
00000 Xxxxxx Xxxx, Xxxxx X Xxx Xxxxxxx, XX 00000
Xxxxxxxxx, XX 00000 Attention: Xxxxxxx X. Xxxxx, Esq.
if to MAJ, with a copy to
Xxxx X. Xxxxx Xxxxxxx Xxxxxxxx, Esq.
Xxxxx, Driggs, Walch, Xxxxxxx & Xxxxxxxx Xxxxx 000
0000 Xxxxxx Xxxxxx Xxxxxxx 000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000-X Xxx Xxxxxxx, XX 00000-0000
Xxx Xxxxx, XX 00000
if to RGK, with a copy to
Xxxxxx X. Xxxxx, Esq. Clarkson, Gore & Xxxxxxxx, APLC
Nateman & Kalik, LLP Xxxxx 000
0000 "X" Xxxxxx, X.X. 0000 Xxxxxx Xxxxxx
Xxxxx 000 Xxxxxxxx, XX 00000
Xxxxxxxxxx, X.X. 00000 Attention: Xxxxx X. Xxxxxxxx, Esq.
or such other address as a party may have previously furnished for itself to the
others by a notice in accordance with this section.
8
Section 6.2 Further Assurances. Each of the Parties agrees to
------------------
execute and deliver such instruments and to take such actions as the Company
(acting through a majority of the authorized number of the New Board of
Directors), TGB, or ASSI may reasonably request in order to further evidence,
confirm, or effectuate the settlements contemplated by this Agreement. In
particular and without limiting the preceding, it is specifically contemplated
by the Parties that further action, proceedings, inquiries, discussions, or
negotiations with one or more governmental entities may be necessary or
convenient in order to completely expunge, vacate, or otherwise terminate issues
raised by the Claims ("Further Proceedings"). Each Party agrees to cooperate
with and support the Company, TBG, or ASSI in connection with Further
Proceedings to the extent they occur or the Company, TBG, or ASSI participates
therein, including without limitation the giving of prompt notice to the Company
(which will in turn promptly notify all directors of the new Board of Directors
thereof) and each other Party affected thereby of the existence of each of the
Further Proceedings.
Section 6.3 No Further Lawsuits. Except as may be necessary to
-------------------
enforce rights pursuant to the Settlement Documents, each Party will forever
refrain and forebear from commencing, instituting, or participating, either as
named or unnamed parties, in any action, lawsuit, or other proceeding against
any other Party (or other Released Persons), whether brought by the former or by
others on its behalf or for its benefit based on, relating to, or arising out of
any facts, matters, or circumstances covered by the Claims. Each Party agrees
that this Agreement may be pleaded by any other Party (or other Released Person)
as a full and complete defense to any claim, loss, demand, liability,
obligation, indemnity, charge, action, investigation, inquiry, or other
proceeding which may be brought or alleged by or on behalf of any one or more of
the other Parties or their respective successors or assigns.
Section 6.4 No Admissions. No aspect of the settlements contained
-------------
herein or of the Settlement Documents, including without limitation the
negotiation, execution, or delivery thereof, is intended or will constitute in
any way an admission of liability by any Party for any purpose.
Section 6.5 Press Release; Confidentiality.
------------------------------
(a) Promptly after execution and delivery of the Settlement Documents,
the Company will issue the press release attached hereto as Exhibit J.
(b) Each Party will hold in confidence and, except as permitted hereby
or as required by law, will not disclose to any other person the circumstances
surrounding or the negotiations involved with achievement of the settlements
contained herein or the other Settlement Documents, unless otherwise approved by
the Company, TBG, and ASSI in advance. Each Party may disclose information
regarding the settlements herein and the other Settlement Documents to those of
their advisors (including attorneys, accountants, and banks) who have a need to
know such information in order to effectuate the transactions contemplated
hereby, provided such advisors must undertake to maintain the confidentiality of
such information. The obligation of each Party under this section will survive
for a period of 10 years from the date hereof.
Section 6.6 Successors and Assigns. This Agreement will be binding
----------------------
upon and inure to the benefit of the Parties and their respective successors and
permitted assigns.
9
Section 6.7 Assignment. No Party may assign, transfer, or otherwise
----------
hypothecate either this Agreement or any of the rights, interests, or
obligations of such Party herein without the prior approval of VJB and ASSI.
Section 6.8 Attorneys' Fees. In any action between any two or more
---------------
of the Parties seeking interpretation or enforcement of any terms or provisions
of any of the Settlement Documents, the prevailing party in such action will be
entitled, in addition to any damages, injunctive, or other relief, to receive
from the Parties opposing such prevailing party its reasonable costs and
expenses, including without limitation attorneys fees, incurred by the
prevailing party in connection with such action or proceeding.
Section 6.9 Amendment. This Agreement may not be amended, modified,
---------
or supplemented in any manner except in a writing executed by each of the
Parties (other than RGK, unless such amendment, modification, or supplement has
an adverse effect on the releases and discharges in Section 1.1 in favor of
RGK).
Section 6.10 Severability. Any provision of this Agreement which
------------
is prohibited or unenforceable in any jurisdiction will, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in a jurisdiction will not invalidate or
render unenforceable such provision in any other jurisdiction.
Section 6.11 Waiver. No waiver of any provision of this Agreement
------
will be enforceable unless in a writing executed by the Party against whom
enforcement is sought. No delay or failure of a Party to exercise any right,
power, or privilege hereunder or to strictly enforce the provisions hereof will
constitute a waiver with respect thereto. No waiver of any provision of this
Agreement on a given occasion will constitute a waiver thereof on any subsequent
occasion unless in writing.
Section 6.12 Third Party Beneficiaries. This Agreement and the
-------------------------
transactions contemplated hereby are for the sole benefit of the Parties, other
Released Persons, and their respective successors-in-interest and permitted
assigns. No other person or entity is entitled to rely upon or receive any
benefit from any of the Settlement Documents or any provisions thereof, except
to the extent expressly stated therein.
Section 6.13 Captions. The article and section headings contained
--------
in this Agreement are for convenience or reference only and do not affect in any
way the interpretation or enforcement of this Agreement.
Section 6.14 Complete Agreement. This Agreement, including the
------------------
Settlement Documents, constitutes the entire agreement of the Parties with
respect to subject matter hereof and thereof. In particular and without limiting
the foregoing, each Party acknowledges that no representation or promise not
expressly contained in one or more of the Settlement Documents has been made to
it and that there are no promises or representations, express or implied, not
set forth in the Settlement Documents relating to the subject matter thereof.
Section 6.15 Definition of Settlement Documents. "Settlement
----------------------------------
Documents" means collectively this Agreement, the documents attached hereto as
Exhibits to be executed and delivered concurrently with this Agreement, and such
additional instruments as may be concurrently executed and delivered pursuant to
this Agreement.
10
Section 6.16 Gender and Number. As used in this Agreement, the
-----------------
masculine, feminine, or neuter gender, and the singular or plural number, will
each be deemed to include the others whenever the context so indicates.
Section 6.17 Remedies Cumulative; Specific Performance.
-----------------------------------------
(a) The rights and remedies of the Parties under this Agreement are
cumulative with one another and with any other remedies available at law, in
equity, or otherwise.
(b) Without limiting the generality of clause (a) and in recognition
of the special and unique character of each Party's obligations in connection
with the settlements and other agreements made herein by the Parties and of the
inadequacy of an action at law for damages to compensate for a breach thereof,
each Party agrees that specific performance and other equitable relief may be
had by any other Party hereto in the event of actual, threatened, or
anticipatory breach of any such obligations.
Section 6.18 Counterparts. Any of the Settlement Documents may be
------------
executed in two or more counterparts, all of which together will constitute one
and the same document, and may be executed and delivered by facsimile or
telecopier; provided that any Party which elects to execute and deliver a
Settlement Document or counterpart thereof by facsimile or telecopier will
within 3 days of the date of such delivery provide to each other Party (or its
attorney) a manually executed original counterpart.
Section 6.19 Venue. In the event any legal proceeding is necessary
-----
to enforce, interpret, or resolve any disputes arising under this Agreement, the
sole and exclusive forum for such proceeding will be the Municipal and Superior
Courts for the County of Los Angeles, California or the federal district court
for the Central District of California, and all related appellate courts. Each
Party hereby consents to the jurisdiction and venue of such courts.
Section 6.20 Construction. The Parties directly or through their
------------
respective counsel have mutually participated in the negotiation and preparation
of this Agreement and agree that no provision herein will be construed against
any Party due to the activities of that Party or its attorney in the preparation
of this Agreement.
Section 6.21 Governing Law. This Agreement and each of the other
-------------
Settlement Documents (unless expressly stated otherwise therein) will be
interpreted and enforced in accordance with the laws of the State of California
without regard to its conflicts-of-laws rules.
11
IN WITNESS WHEREOF, the Parties hereto have duly executed and delivered this
Agreement as of the date first set forth above.
APPROVED AS TO FORM: PARTIES:
-------------------- --------
COMPANY:
XxXXXXXXX WILL & XXXXX
SOUND SOURCE INTERACTIVE, INC.
/s/ Xxxx X. XxXxxxxxxx /s/ Xxxxxxx X. Xxxxxxx
---------------------- ----------------------
Xxxx X. XxXxxxxxxx Xxxxxxx X. Xxxxxxx
Attorneys for Sound Source Chief Executive Officer
Interactive, Inc.
XXXXXX XXXXXX WHITE & XxXXXXXXX TBG:
THE BOSTON GROUP, L.P.
/s/ Xxxxxx Xxxxxx
----------------- /s/ Xxxxxx X. Xxxxxxxx
Xxxxxx Xxxxxx ----------------------
Attorneys for the Boston Group Xxxxxx X. XxXxxxxx,
President
COUDERT BROTHERS ASSI:
ASSI, INC.
/s/ Xxxxxxx Xxxxxx /s/ Xxxxx Xxxxxx
------------------ ----------------
Xxxxxxx Xxxxxx Xxxxx Xxxxxx,
Attorneys for ASSI, Inc. President
COUDERT BROTHERS NCD:
NCD, INC.
/s/ Xxxxxxx Xxxxxx /s/ Xxxxx Xxxxxx
------------------ ----------------
Xxxxxxx Xxxxxx Xxxxx Xxxxxx
Attorneys for NCD, Inc. President
XXXXXXXX & XXXXX
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxxxx X. Xxxxxxx
-------------------- ---------------------
Xxxxxxx X. Xxxxx XXXXXXX X. XXXXXXX,
Attorneys for Xxxxxxx X. Xxxxxxx individually
XXXXXXXX & XXXXX
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxxx X. Xxxxxxxxxxx
-------------------- -------------------------
Xxxxxxx X. Xxxxx XXXXXX X. XXXXXXXXXXX,
Attorneys for Xxxxxxx X. Xxxxxxx individually
12
XXXXXXX XXXXXXXX, ESQ.
/s/ Xxxxxxx Xxxxxxxx /s/ Xxxx X. Xxxxx
-------------------- -----------------
Xxxxxxx Xxxxxxxx XXXX X. XXXXX,
Attorneys for Xxxx X. Xxxxx individually
CLARKSON, GORE & XXXXXXXX, APLC
/s/ Xxxxx X. Xxxxxxxx /s/ Xxxxxx X. Xxxxx
--------------------- -------------------
Xxxxx X. Xxxxxxxx XXXXXX X. XXXXX,
Attorneys for Xxxxxx X. Xxxxx individually
13
