EX-10.112
SETTLEMENT AGREEMENT AND
MUTUAL RELEASE OF CLAIMS
This SETTLEMENT AGREEMENT AND MUTUAL RELEASE OF CLAIMS (the "Agreement") is
entered into as of April 9, 2002 between COMMUNITY TOWERS, LLC, a Delaware
limited liability company ("Community Towers"), on the one hand, and SOFTWARE
PUBLISHING CORPORATION, a Delaware corporation ("SPC"), and VIZACOM, INC., a
Delaware Corporation ("Vizacom"), on the other hand (collectively,
"SPC/Vizacom"). In consideration of the promises and consideration set forth
below and other valuable consideration, the adequacy of which is acknowledged,
the parties agree as follows:
1.0. RECITALS: This Agreement is made with reference to the following:
1.1. Community Towers, SPC and Xxxx X. Xxxxxxx, Esq., an individual
("Xxxxxxx") are parties to a pending action including causes of action for
breach of contract, including attorneys fees and costs and interest, intentional
interference, negligent interference and conspiracy, all brought by Community
Towers against SPC and Xxxxxxx in the Superior Court of California for the
County of Santa Xxxxx, entitled COMMUNITY TOWERS, L.L.C., v. SOFTWARE PUBLISHING
CORPORATION, and DOES 1 through 10, (Xxxxxxx was named in the action as a Doe
defendant), Case No. CV-776789 (the "Action"). SPC is a wholly owned subsidiary
of Vizacom.
1.2. Trial in this matter is set for April 8, 2002. Community Towers seeks,
among other things, damages under its breach of contract cause of action against
SPC of three hundred
thousand dollars ($300,000) in compensatory damages, interest in the approximate
amount of one hundred ten thousand dollars ($110,000) and attorneys' fees and
costs in excess of two hundred thousand dollars ($200,000). Following a
Mandatory Settlement Conference on April 3, 2002, plaintiff Community Towers, on
the one hand, and defendant SPC on the other hand, each desire to avoid the
further expense of trial of the Action and to resolve the Action as between them
on the terms set forth below.
2.0. AGREEMENT: In consideration of the mutual promises made herein, the
Parties to this Agreement each agree as follows:
2.1 Deliveries and Restrictions.
2.1.A.1. Subject to the conditions precedent set forth in section 2.2, and
as specified in section 2.3 and 2.9, below, SPC shall provide to Community
Towers consideration in the amount of one hundred thousand dollars ($100,000) in
partial settlement of Community Towers' claim for breach of contract and
interest thereon against SPC (the "Base Consideration"). The Base Consideration
shall consist of twenty-five thousand dollars ($25,000) delivered within two (2)
business days following Court approval of the settlement as set forth in this
Agreement, pursuant to Code of Civil Procedure section 664.6 ("Court Approval")
and seventy-five thousand dollars ($75,000) delivered within sixty (60) days
following Court Approval. To secure the obligation to deliver said $75,000, SPC
is also delivering within the five (5) business days following Court Approval
the "Pledged Shares," as that term is defined in section 2.1.A.3., below.
-2-
2.1.A.2. Subject to the conditions precedent set forth in section 2.2, and
as specified in section 2.3 and 2.9, below, in addition to the delivery of the
Pledged Shares set forth above, Vizacom shall deliver within the five (5)
business days following Court Approval, an additional 288,461 unregistered
shares of common stock of Vizacom in the name of Community Towers to undersigned
counsel for Community Towers to hold in trust as assurance that Community Towers
will achieve recovery in this matter sufficient to cover at least its attorneys
fees to date ("Outcome Assurance Stock" or "OAS"). The OAS shall be held by
undersigned counsel, to be released only in accordance with the terms of this
Agreement. Concurrent with the delivery of the OAS, Community Towers shall pay
to Vizacom the sum of $.001 per share.
2.1.A.3. To complete payment of the Base Consideration pursuant to section
2.1A.1, within sixty (60) days following Court Approval, and contingent upon
Community Towers' performance under section 2.9, below, SPC agrees to deliver to
Community Towers seventy-five thousand dollars ($75,000). SPC/Vizacom grants to
Community Towers a security interest in and to ninety-six thousand one hundred
fifty-four (96,154) unregistered shares of common stock of Vizacom (the "Pledged
Shares") to secure its obligation to deliver the $75,000. The number of Pledged
Shares shall be appropriately adjusted for any stock splits or reverse stock
splits with respect to Vizacom common stock. Until said security interest has
been foreclosed, all voting rights, if any, as to the Pledged Shares shall be
exercised solely by SPC. Upon satisfaction of SPC's payment obligations with
respect to the $75,000, Community Towers shall promptly return the stock
certificates representing the Pledged Shares to SPC and the pledge
-3-
shall lapse and be extinguished. The Pledged Shares shall be legended to
indicate the pledge established hereby and stop transfer orders will be in place
restricting the transfer of the shares from SPC unless and until SPC's default
on the $75,000 and foreclosure on the Pledged Shares in accordance with the
provisions of the UCC. In addition, in the event that SPC does not timely
deliver the $75,000, Community Towers shall be entitled to have a further right
to recover interest on that amount at the rate of 2% simple interest for each
month this amount remains due and unpaid.
2.1.A.4. Any and all Vizacom stock transferred or assigned to Community
Towers pursuant to this Agreement will be subject to the following restrictions
as well as those set forth elsewhere in this Agreement, including but not
limited, sections 2.1, 2.2 and 2.3: Community Towers hereby agrees that it will
not sell more than sixteen and two-thirds percent (16.66 %) of the total shares
of the stock consideration (as adjusted for any stock split or reverse stock
split) during any individual calendar quarter during the period encompassing the
first six calendar quarters, beginning with the first calendar quarter ending
December 31, 2002, or beginning with such earlier quarter in which such shares
have been registered for resale. Community Towers agrees that Vizacom may place
stop transfer orders on any certificates delivered hereby consistent with the
restrictions set forth in the preceding sentence.
2.1.B.1. If (but without any obligation to do so) Vizacom proposes to
register (including for this purpose a registration effected by Vizacom for
stockholders other than Community Towers) any of its stock or other securities
under the Securities Act of 1933, as
-4-
amended (the "Act"), in connection with the public offering of such securities
solely for cash (other than a registration statement relating either to the sale
of securities to employees of Vizacom pursuant to a stock option, stock purchase
or similar plan or a SEC Rule 145 transaction), Vizacom shall, at such time, but
only with respect to the next two registration statements filed by Vizacom
promptly give Community Towers written notice of such proposed registration in
accordance with section 4.9 hereof (and in no event shall such registration
occur until ten (10) days after such notice is given). Upon the written request
of Community Towers, given within five (5) days after the giving of such notice
by Vizacom in accordance with section 4.9 hereof, Vizacom shall, subject to
subsection 2.1.B.2, below, endeavor to cause to be registered for resale under
the Act all of the Vizacom shares received by Community Towers under this
Agreement that Community Towers has requested to be registered; provided,
however, that in the event that the stockholder or stockholders for whose
benefit (other than Community Towers) such registration statement is proposed to
be filed objects to the inclusion of Community Towers' Vizacom shares in such
registration statement, then Vizacom shall not be obligated to register
Community Towers' shares hereunder; provided, further, that in such case, a
request by Community Towers to register its Vizacom shares shall not be counted
as one of the two registration statements as to which Community Towers has the
right to request registration under this paragraph. It is agreed that the
Pledged Shares will not be included in any registration statement unless and
until Community Towers has foreclosed on such shares in accordance with this
Agreement. Notwithstanding anything to the contrary in this section, Vizacom
agrees that if
-5-
by June 30, 2002, it has not included in a registration statement
the OAS Vizacom shares delivered to Community Towers, it shall file by July 1,
2002 a registration statement on Form S-3, to register the OAS shares (as
adjusted for any stock split or reverse stock split) for resale. In the event
that Vizacom fails to have declared effective a registration statement as to the
resale of OAS (as so adjusted) by October 1, 2002, and such shares cannot
otherwise be sold under SEC Rule 144, Vizacom agrees that for the quarter
beginning October 1, 2002, and for the subsequent quarter beginning January 1,
2003, at the written request of Community Towers, Vizacom shall buy back not
more than 16.66 % of the total shares of OAS (as adjusted for each stock split
or reverse stock split) for each quarter for an amount equal to the closing
price per share on the first trading day of the applicable calendar quarter, up
to a maximum price of $.78 per share (as adjusted for any stock split or reverse
stock split).
2.1.B.2. Notwithstanding anything contained herein to the contrary, Vizacom
shall be entitled to postpone the filing of any registration statement or
amendment thereto, or in the event such registration statement has been declared
effective, without suspending such effectiveness, to instruct Community Towers
promptly in writing (or any subsequent holder of Community Towers' Vizacom
shares) not to sell or distribute any Vizacom shares (a "Delay"), and Community
Towers or any such subsequent holder shall comply with such instruction, as long
as the reason for non-disclosure continues, if Vizacom would be required to
disclose in such registration statement the existence of any fact relating to a
material business situation, transaction or negotiation, or would be required to
disclose information that Vizacom has not otherwise made
-6-
public, in each case, that Vizacom reasonably determines is in the best
interests of Vizacom not to disclose at such time, and unless and until
Community Towers furnishes to Vizacom in writing information that may be
required to prepare the disclosure required by Items 507 and 508 of Regulation
S-B promulgated under the Act, with respect to Community Towers' Vizacom shares
being sold under such registration statement. No individual Delay shall be for a
period greater than 60 days.
2.1.B.3. Vizacom shall be obligated to keep any such registration statement
effective only for the lesser of (i) the period as to which such registration
statement is being kept effective for the other stockholder or stockholders on
whose behalf such registration statement has been filed, or (ii) two years from
the date such registration statement is declared effective. In the event a
registration statement is effected solely for Community Towers, Vizacom shall
keep such registration statement effective for two (2) years.
2.2. Conditions Precedent to Base Consideration and OAS. Community Towers
entitlement to the Base Consideration and the OAS shall be subject to the other
preconditions and limitations set forth in this Agreement and shall also be
subject to the following requirements: (a) A judgement shall be rendered in the
Action as to Xxxxxxx, or (b) Community Towers shall have reached a full and
final settlement of the Action with Xxxxxxx (Community Towers being entitled to
effectuate a good faith settlement with Xxxxxxx at any time and upon such terms
as Community Towers shall determine in its sole and absolute discretion).
2.3. Set-Offs/Credits to Total Consideration. In the event Community Towers
collects
-7-
by judgement any amount above $75,000 (after reduction for any credit
specifically allocated by the Court to Xxxxxxx for payments from SPC/Vizacom to
Community Towers) or becomes entitled to $100,000 by settlement as set forth in
section 2.2, above, SPC's obligations with respect to the Base Consideration and
OAS shall be reduced dollar for dollar by each and every dollar recovered above
$75,000 (or in the event of settlement, above $100,000) until such obligations
are fully extinguished. The foregoing setoffs shall be applied pro rata to SPC's
cash and stock obligations as they are performed. As to the stock obligations,
such set off shall be calculated based on a per share price of $.78 per share
(as adjusted for any stock split or reverse stock split). Thus, the formula
shall be as follows: x = 325,000 - (y - 75,000) or (z - 100,000); where x
represents the adjusted settlement under this Agreement, y represents a
judgement with respect to Xxxxxxx which exceeds $75,000, and z represents a
settlement with respect to Xxxxxxx which exceeds $100,000. By way of example, if
Community Towers receives a net recovery against Xxxxxxx in the Action of
$125,000, Community Towers' entitlement to the Base Consideration and OAS shall
be reduced by $50,000.00 (pro rata, cash and stock). Furthermore, in the event
of any settlement with Xxxxxxx, in any amount or otherwise, prior to
commencement of Xxxxxxx'x case at trial, Community Towers entitlement to the OAS
shall immediately be reduced by 32,051 shares (as adjusted for any stock split
or reverse stock split) in addition to any other reductions provided under this
Agreement. In the event of any settlement after the commencement of Xxxxxxx'x
case at trial, in any amount or otherwise, Community Towers entitlement to the
OAS shall immediately be reduced by 16,025 shares (as adjusted for
-8-
any stock split or reverse stock split), in addition to any other reductions
provided under this Agreement.
2.4. Within five (5) days of the later of (a) the entry of judgement or
settlement with Xxxxxxx of the Action; (b) the payment by Xxxxxxx of such
judgement or settlement amount, if any; or (c) the decision of Community Towers
not to pursue collection of judgment or settlement, Community Towers will
deliver to counsel for SPC/Vizacom written notice of the resolution of this
Action ("Notice"). The Notice shall, in addition to any other documentation
reasonably required by the SPC/Vizacom, attach the judgement or settlement
agreement, as applicable, include Community Towers' statement as to the amount
of money or stock provided by SPC/Vizacom which Community Towers claims to be
entitled to retain, if any, and the amounts of such money or stock which it
believes must be reimbursed and returned to SPC/Vizacom pursuant to sections 2.1
and 2.3. SPC shall have ten (10) business days from receipt of such Notice to
review it and to notify Community Towers in writing whether it agrees or objects
to Community Towers claims regarding the amounts due to Community Towers or any
credits and reimbursement of stock or money due to SPC/Vizacom. If the parties
agree to the amounts due each of Community Towers and SPC/Vizacom, the funds and
stock shall be transferred to the appropriate party. If the parties cannot
resolve any disputes as to such credit amounts, the parties shall move for court
resolution of the dispute. Community Towers and its counsel shall be responsible
for returning to SPC/Vizacom any stock or money to which it is not entitled
pursuant to the agreement of the parties or an order of the Court.
-9-
2.5. Except for obligations arising under this Agreement, Community Towers,
on its behalf and on behalf of its officers, directors, employees, members,
partners, parents, subsidiaries and affiliated entities, including without
limitation Divco Community Investors, LLC ("Divco"), hereby release SPC and
Vizacom and their present and former directors, officers, owners, shareholders,
partners, employees, agents, attorneys, parents, subsidiaries, independent
contractors, predecessors, representatives, successors, affiliated or related
entities, insurance carriers and assignees and all persons acting by through or
in concert with them, or any of them (collectively, but expressly excluding
Xxxxxxx or any law firm he is or has been affiliated with, the "Released
Parties"), from all liability, claims, causes of action, charges, complaints,
obligations, costs, losses, damages, injuries, attorney's fees, and other legal
responsibilities of any form whatsoever, whether known or unknown, foreseen or
unforeseen, anticipated or unanticipated, suspected or unsuspected, patent or
latent, which they or their successors in interest ever had, now have, or may
have in the future by reason of any matter or cause whatsoever arising prior to
the date of this Agreement including but not limited to those which arise out
of, were asserted or could have been asserted by a party in the Action.
2.6 Except for obligations arising under this Agreement, SPC and Vizacom,
on their behalf and on behalf of their officers, directors, employees, members,
partners, parents, subsidiaries and affiliated entities, hereby releases
Community Towers and its present and former directors, officers, owners,
shareholders, partners, employees, agents, attorneys, parents, subsidiaries,
independent contractors, predecessors, representatives, successors, affiliated
or
-10-
related entities, insurance carriers and assignees and all persons acting by
through or in concert with them, or any of them (except that SPC/Vizacom does
not herein purport to act on behalf of Xxxxxxx), from all liability, claims,
causes of action, charges, complaints, obligations, costs, losses, damages,
injuries, attorney's fees, and other legal responsibilities of any form
whatsoever, whether known or unknown, foreseen or unforeseen, anticipated or
unanticipated, suspected or unsuspected, patent or latent, which they or their
successors in interest ever had, now have, or may have in the future by reason
of any matter or cause whatsoever arising prior to the date of this Agreement,
including but not limited to those which arise out of, were asserted or could
have been asserted by a party in the Action.
2.7 Community Towers on the one hand, and SPC, on the other hand hereby
relinquish all rights and benefits conferred by the provisions of section 1542
of the California Civil Code, which reads 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.
The parties hereto represent that they have read and understood the foregoing
provisions of California Civil Code section 1542, and knowingly waive all rights
and benefits under that section.
2.8 This Agreement shall be binding on any subsequent purchasers, heirs,
assigns, transferees, owners and successors in interest of Community Towers and
SPC/Vizacom, as may be applicable.
-11-
2.9 Upon execution of the Agreement by Community Towers and SPC/Vizacom,
the parties shall immediately move for Court Approval pursuant to Code of Civil
Procedure section 664.6. Within two (2) business days of receipt of such Court
Approval, SPC/Vizacom shall tender the $25,000 of Base Consideration, and within
five (5) business days shall deliver the Pledged Shares and the Outcome
Assurance Stock to Community Towers. Immediately upon receipt of such money and
shares, Community Towers shall execute and file a Request for Dismissal of the
Action as to SPC and any and all of the Released Parties, as applicable, with
prejudice. Except as otherwise expressly provided in this Agreement, each party
shall bear its own costs and legal fees. SPC will cooperate in the trial of the
Action, by making Xxxx Xxxxxxxxxx or a similarly knowledgeable officer of SPC
available to testify thereat, however, any actual out-of-pocket expenses
relating to same shall be borne by Community Towers.
3.0 REPRESENTATIONS AND WARRANTIES: Each of the parties to this Agreement
represents and warrants, and agrees with, each other party hereto, as follows:
3.1 Each party has received independent legal advice from its attorneys
regarding the advisability of executing this Agreement.
3.2 No party (nor any officer, agent, employee, representative or attorney
of or for any party), has made any statement or representation to any other
party regarding any fact relied upon in entering into this Agreement, and each
party does not rely upon any statement, representation or promise of any other
party (or of any officer, agent, employee, representative or attorney for any
other party) in executing this Agreement, or in making the settlement provided
herein, except
-12-
as expressly stated in this Agreement or other documents executed
by the parties against whom the statement, representation or promise is charged.
3.3 Each party to this Agreement has made such investigation of the facts
pertaining to this settlement and this Agreement, and all of the matters
pertaining thereto, as it deems necessary.
3.4 Community Towers agrees that it shall not bring or join in an action or
in any manner seek relief through a suit or agency proceeding arising, based on
or relating to any of the claims released herein against SPC. Similarly
SPC/Vizacom agrees that it shall not bring or join in an action or in any manner
seek relief through a suit or agency proceeding arising, based on or relating to
any of the claims released herein against Community Towers. Each party is the
owner of all rights which it releases herein in and has not assigned,
transferred or granted, or purported to assign, transfer or grant any of the
claims, demands, and cause or causes of action disposed of by this Agreement.
Each party agrees to save, defend, indemnify and hold harmless each other from
any and all claims incurred as a result of a breach of the representations and
warranties contained in this section 3.4.
3.5 Each party will execute all such further and additional documents as
shall be reasonable and necessary to carry out the provisions of this Agreement.
3.6 Community Towers acknowledges that Vizacom will rely on the information
and on the representations set forth below, and Community Towers hereby
represents, warrants and agrees that:
-13-
(a) Community Towers represents and warrants that it is an "Accredited
Investor", as that term is defined under section 501(a) of Regulation D under
the Act, by virtue of the fact that each of its equity owners are Accredited
Investors, as so defined. Community Towers has two members, Sun Life Insurance
Company of America, which has in excess of $5 million in assets and Divco
Community Investors, LLC, whose equity owners consist entirely of Accredited
Investors.
(b) Community Towers has not received any general solicitation or general
advertising regarding the Vizacom shares.
(c) Community Towers has sufficient knowledge and experience in financial
and business matters so that he or it is able to evaluate the merits and risks
of investing in the Vizacom shares, as well as substantial experience in
previous private and public purchases of securities.
(d) Community Towers understands that an investment in Vizacom involves
significant risk. Community Towers does not require the funds to be used to
purchase the Vizacom shares for its liquidity or other needs, possesses the
ability to bear the economic risk of holding the Vizacom shares purchased
hereunder indefinitely and can afford a complete loss of its investment in the
Vizacom shares.
(e) Prior to the issuance of the Vizacom shares, Community Towers has or
will have had full opportunity to ask questions of and receive answers Vizacom
and its officers and authorized representatives regarding the terms and
conditions of the Vizacom shares and the transactions contemplated hereby, as
well as the affairs of Vizacom and related matters.
-00-
Xxxxxxxxx Xxxxxx confirms that it does not desire to receive any further
information.
(f) Community Towers understands that the value of the Vizacom shares being
purchased hereby has been arbitrarily determined and does not necessarily bear
any relationship to investment criteria such as projected earnings, discounted
cash flow, book value or other measures of value.
(g) Community Towers understands that the offering of the Vizacom shares
have not been filed with or reviewed by the U.S. Securities and Exchange
Commission (the "Commission") nor the securities department of any state because
of the private or limited nature of this offering as defined by applicable laws,
and that the Vizacom shares have not been registered with the Commission under
the Act nor with the securities department of any state in reliance upon an
exemption therefrom for non-public offerings, and may not be resold in the
absence of such registration or an applicable exemption therefrom. The
certificates evidencing the Vizacom shares shall be legended accordingly.
(h) Community Towers is a bona fide resident of the state set forth as its
"address" below in section 4.9 and further represents that it has a principal
office within such state.
(i) Community Towers represents and warrants that the Vizacom shares are
being acquired for investment purposes and not with a view to or for sale or
distribution at any specific time or upon any specific event. Community Towers
represents that there is no contract, undertaking, agreement or arrangement with
any person to sell, transfer or pledge to such person or anyone else the Vizacom
shares or any part thereof, and Community Towers has no present
-15-
plans to enter into such contract, undertaking, agreement or arrangement and
will neither directly or indirectly seek to assign, transfer or sell the same in
any way inconsistent with the legend which is being placed on the Vizacom
shares.
(j) Community Towers agrees to indemnify and hold harmless Vizacom and each
officer, director, employee, agent or control person of Vizacom, who is or may
be a party or is or may be threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, to the extent by reason of or arising from any
misrepresentation or misstatement of material facts or omission to state
material facts necessary to make the facts stated, under the circumstances, not
materially misleading, made or omitted by Community Towers to Vizacom in a
writing provided to the Vizacom expressly for the purpose of inclusion in any
registration statement in which the Vizacom shares are included, or any
amendment thereto, against losses, liabilities and expenses for which Vizacom,
or any officer, director or control person of Vizacom has not otherwise been
reimbursed (including attorneys' fees, judgements, fines and amounts paid in
settlement) actually and reasonably incurred by Vizacom or such officer,
director or control person in connection with such action, suit or proceeding.
4.0 MISCELLANEOUS:
4.1 Counterparts; Facsimile Transmission. This Agreement may be executed in
counterparts, and any counterpart signed and delivered by a party hereto shall
be deemed an original and, when taken together with other counterparts signed
and delivered by each of the
-16-
parties, a single Agreement which shall be binding upon and effective as to all
parties. Faxed executed copies shall be effective and enforceable as originals;
provided however, that this Agreement shall have no effect unless and until
fully executed and delivered by fax by the Parties.
4.2 No Admission. It is understood and agreed that this is a compromise
settlement of disputed claims and that the promises made in consideration of
this Agreement shall not be construed to be an admission of any liability or
obligation whatsoever by any party to any other party or person.
4.3 Waiver. No waiver of any provision hereof shall be effective unless set
forth by a written instrument signed by each and every party hereto.
4.4 Severability. If any provision of this Agreement is held over by a
court of competent jurisdiction as void or unenforceable and all avenues of
appeal have been exhausted, time to appeal has lapsed or an appeal has been
abandoned, then that provision shall be deemed to be deleted as of the date of
this Agreement and the Agreement as so modified shall remain in full force and
effect.
4.5 Entire Agreement. This Agreement contains the entire agreement between
Community Towers, on the one hand, and SPC/Vizacom, on the other hand, and
constitutes the complete, final and exclusive embodiment of their agreement with
respect to the subject matter hereof and all prior and contemporaneous
agreements, understandings, representations, and statements, oral or written are
merged into and superseded by this Agreement. This Agreement may not be
supplemented, amended or modified in any way whatsoever without prior written
-17-
consent of each and every party against whom the subsequent supplement,
amendment or modification is to be charged.
4.6 Assignment. This Agreement shall not be assignable by any party.
4.7 Confidentiality. The parties hereto agree that the terms of this
settlement shall be confidential and shall not be divulged to any other person,
and that they shall not discuss the disputes settled herein with any other
person, other than their attorney, accountant or other business advisors, absent
a court order or subpoena so requiring such disclosure. Notwithstanding this
confidentiality section, this Agreement and its releases can be pleaded as a
full and complete defense and can be used for the basis of an injunction against
any action or any other proceeding which may subsequently be instituted,
prosecuted or attempted by any of the Parties which is based upon any matter
covered, related to or referred to in this Agreement. Notwithstanding the
foregoing, Vizacom and SPC shall be entitled to make such disclosure of the
terms of this Agreement as may be required to permit Vizacom or SPC to comply
with their respective disclosure obligations under Federal or State Securities
laws, or other applicable laws, or to comply with their obligations to register
for resale the Vizacom shares delivered to Community Towers hereunder, or in
association with an application for good faith settlement to the Court for the
Action. Further, Community Towers shall be entitled to and shall be required to
provide such disclosure concerning itself, its members and its holdings in
Vizacom as may be necessary to permit Vizacom to undertake its obligations to
register the Vizacom stock delivered to Community Towers pursuant to this
Agreement.
-18-
4.8 Venue. This Agreement is made and entered into in the State of
California and shall interpreted and enforced under and pursuant to the laws of
the State of California except that as to matters regarding which the internal
corporate laws of the State of Delaware apply. The parties further agree that
the venue of any lawsuit or dispute arising out of this Agreement shall be in
Santa Xxxxx County, California.
4.9 Notices. All notices to be given hereunder shall be in writing and
shall be deemed given when first received or tendered during normal business
hours for the locale of the addressee at the appropriate address set forth
below, or other address as one party may hereafter provide to the other with not
less than three (3) business days' notice. Any notice or communication that is
addressed as provided in this section shall be deemed given (a) upon delivery,
if delivered personally, (b) on the third business day after deposit in the
United States mail, if delivered by certified mail return receipt requested, (c)
on the first business day of the receiving party after the timely delivery to
the courier, if delivered by overnight courier, such as FedEx.
If to SPC and Vizacom:
----------------------
Xxxx Block
Vizacom Inc.
00 X 00xx Xxxxxx Xxxxx 0000
Xxx Xxxx, 00000
-19-
With copy to:
-------------
Xxxx X. Xxxxxx
Xxxxxxx & Xxxxxxxxx, LLP
00000 Xxxxxxxx Xxxxxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
If to Community Towers:
-----------------------
Community Towers, LLC
000 Xxxxxxx Xxxx., Xxxxx 000
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Single and Xxxxx X. Xxxxx
With copy to:
-------------
Xxxxxxx X. Xxxxxx
Xxxxxxxx X. Xxxxxxxx
Xxxxxx & Xxxxx
0000 X. Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx Xxxxx, XX 00000
4.10 Attorneys' Fees. The prevailing party shall be entitled to recover
reasonable attorneys' fees and costs in any lawsuit arising out of this
Agreement.
4.11 Court Approval. This Action will be dismissed with prejudice based
upon this Agreement and the parties shall request that the Court retain
jurisdiction over the parties to enforce the settlement until performance in
full of the terms of the settlement, pursuant to Code of Civil Procedure section
664.6 (save the entry of judgement absent a material default under this
Agreement). All references to Court Approval or C.C.P. ss.664.6 in this
Agreement shall be governed by this section 4.11. The parties agree to file
ex-parte application for Court Approval and take all steps necessary to effect
such Court Approval as expeditiously as possible.
-20-
IN WITNESS WHEREOF, the parties hereto have executed this agreement
effective as stated above.
COMMUNITY TOWERS, LLC
By: DIVCO COMMUNITY INVESTORS, LLC.,
Its Manager
By: /s/ Xxxxx Xxxxx
--------------------------------
XXXXX X. XXXXX
Manager
SOFTWARE PUBLISHING CORPORATION
By: /s/ Xxxx Xxxxxxxxxx
--------------------------------
Its: CFO
VIZACOM, INC.
By: /s/ Xxxx Xxxxxxxxxx
--------------------------------
Its: CFO
Reviewed as to form:
XXXXXX & XXXXX
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
XXXXXXX X. XXXXXX
XXXXXXXX X. XXXXXXXX
-21-
Reviewed as to form:
JENKENS & XXXXXXXXX, LLP
By: /s/ Xxxx X. Xxxxxx
--------------------------------
XXXX X. XXXXXX
-22-
