MINUTES OF SETTLEMENT AGREEMENT
AMONG:
APPLIED COURSEWARE TECHNOLOGY, INC., a company formed
pursuant to the laws of the Province of New Brunswick,
(hereinafter called "ACT");
OF THE FIRST PART
- and -
XXXXXX XXXXXXXX, an individual resident in Fredericton, New
Brunswick,
(hereinafter referred to as "Xxxxxx")
OF THE SECOND PART
-and-
XXXX XXXXXXXX, an individual resident in Fredericton, New
Brunswick,
(hereinafter referred to as "Xxxx")
OF THE THIRD PART
XXXXXX XXXXXXXX, an individual resident in Fredericton, New
Brunswick,
(hereinafter referred to as "Xxxxxx")
OF THE FOURTH PART
-and-
INFOCAST CANADA CORPORATION, a company formed pursuant to
the laws of the Province of Ontario
(hereinafter referred to as "Infocast Canada")
OF THE FIFTH PART
-and-
INFOCAST CORPORATION, a company formed pursuant to the laws of
the State of Nevada,
(hereinafter referred to as "Infocast U.S.);
OF THE SIXTH PART
RECITALS
WHEREAS ACT and Infocast Canada signed a letter of intent
dated February 10, 1999 (the "Letter of Intent") with regard to a proposed
transaction by which Infocast Canada would acquire 100% of the issued and
outstanding shares of ACT;
AND WHEREAS by share purchase agreement dated as of May 13,
1999 (the "Purchase Agreement"), Infocast Canada agreed to purchase and the
shareholders of ACT, including Xxxxxx and Xxxx, agreed to sell all of the common
shares of ACT subject to certain terms and conditions;
AND WHEREAS pursuant to an escrow agreement made May 10, 1999,
the closing of the Purchase Agreement was held in escrow, pending due diligence
and the satisfaction of certain conditions;
AND WHEREAS the parties have been involved in a dispute
concerning whether those certain terms and conditions have been met, along with
other outstanding issues;
AND WHEREAS each of the parties hereto have expended
considerable time and effort to complete the terms of the Purchase Agreement;
AND WHEREAS ACT, particularly through the efforts of Xxxxxx
and Xxxx, in order to comply with the conditions set out in the Escrow
Agreement, has substantially altered its business in efforts to complete the
Purchase Agreement, and as a result has foregone other business opportunities;
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AND WHEREAS the parties have agreed to settle their
differences with regard to the Purchase Agreement without admission of liability
on behalf of any of the parties, by implementing the provisions set out in this
Settlement Agreement;
NOW THEREFORE in consideration of the mutual covenants
hereinafter set forth, and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1. The parties hereto acknowledge and agree that the Recitals are accurate and
form part of this Agreement.
2. Forthwith upon the execution of these Minutes of Settlement by all parties,
ACT, Xxxxxx and Xxxx agree to return promptly, but in no event later than
January 7, 2000, to Infocast Canada or as it may further direct, the assets and
work in progress, as specifically set out in Schedule "A" attached hereto (the
"Assets"). Infocast Canada and Infocast U.S. agree and acknowledge that ACT,
Xxxxxx and Xxxx may retain copies of and may continue to use and exploit the
intellectual property it contributed to the Learning Management System, Digital
Exchange Library and courseware production or conversion techniques.
3. Forthwith upon the execution of these Minutes of Settlement by all parties,
Infocast shall provide a certified cheque made payable to ACT, in the principal
sum of $100,000.00 as payment for the Assets and as re-reimbursement for
expenses incurred by ACT, Xxxxxx and Xxxx relating to the Purchase Agreement.
4. Forthwith upon the execution of these Minutes of Settlement by all parties,
Infocast U.S. and Infocast Canada will deliver share certificates for an
aggregate of 200,000 shares of Infocast U.S. (the "Settlement Shares"), as
follows:
(a) a share certificate for 100,000 shares of Infocast U.S.,
registered in the name of Xxxxxx; and
(b) a share certificate for 100,000 shares of Infocast U.S.,
registered in the name of Xxxx.
The parties acknowledge that the shares delivered to Xxxxxx and Xxxx pursuant to
the provisions of these Minutes of Settlement are to be registered in the United
States and may be sold according to the provisions attached hereto as Schedule
"B". The Settlement Shares, prior to any sale according to the provisions of
Schedule "B", will be held by Xxxx & Xxxxxx as escrow agent. In the event that
the provisions of Schedule "B" are not fully complied with by any party with
obligations and responsibilities thereunder (the "Defaulting Party"), then the
parties acknowledge that the Release received by the Defaulting Party and
exchanged under paragraph 5 of these Minutes of Settlement will have no further
force or effect.
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5. Forthwith upon execution of these Minutes of Settlement by all the parties,
each of the parties hereto shall each execute and exchange Releases, the forms
of which are attached hereto as Schedules "C" and "D" respectively.
6. Infocast Canada and Infocast U.S. herewith forgive the $140,000.00 Note dated
March 25, 1999 (the "Note") payable by ACT. The Release referred to in paragraph
5 above from Infocast U.S. and Infocast Canada hereby includes a release with
regard to any obligations under the Note, which Note is hereby forgiven in full,
with no further payment obligations in any manner whatsoever owing from any of
ACT, Xxxxxx or Xxxx.
7. Each of the parties hereto agree to keep the terms of these Minutes of
Settlement confidential and represent and warrant that on and after December 30,
1999, they shall not disclose such terms to any other party, other than to legal
counsel, professional advisors, or as required by law, including, without
limitation, the securities laws of any province of Canada, the Republic of
Germany, or of the United States of America or the rules, regulations or
policies of the NASDAQ Stock Market, the Frankfurt Stock Market or any other
stock exchange or market where the shares of Infocast U.S. are listed or
Infocast U.S. has applied for listing, and each acknowledges to the other that a
breach of this confidentiality provision will entitle each of them and their
affiliates to immediate injunctive relief.
8. With respect to the subject matter of this Settlement Agreement, it is agreed
that this Settlement Agreement:
(a) sets forth the entire agreement between the parties hereto
relating to the settlement of all matters related to the
Purchase Agreement and any persons who have in the past or who
are now representing any of the parties hereto;
(b) supersedes all prior understandings and communications between
the parties hereto or any of them, oral or written; and
(c) constitutes the entire agreement between the parties hereto.
Each party hereto acknowledges and represents that this Settlement Agreement is
entered into after full investigation and that no party is relying upon any
statement or representation made by any other which is not embodied hereto. Each
party hereto acknowledges that he, she or it shall have no right to rely upon
any amendment, promise, modification, statement or representation made or
occurring subsequent to the execution of this Settlement Agreement unless the
same is in writing and executed by each of the parties hereto.
9. It is expressly agreed and understood that the executed copies of the
Schedules attached hereto are subject to the terms of this Settlement Agreement
and in particular, paragraph 5 herein.
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10. It is agreed and understood that this Settlement Agreement may be executed
by way of facsimile transmission and, further, may be executed in any number of
counterparts and all such counterparts shall, for all purposes, constitute one
agreement binding on the parties hereto, providing each party hereto has
executed at least one counterpart, and shall be deemed to be an original
notwithstanding that all parties are not signatory to the same counterpart.
DATED the 7th day of January, 2000.
SIGNED, SEALED AND DELIVERED ) APPLIED COURSEWARE
) TECHNOLOGY INC.
)
)
) Per: /s/ Xxxxxx Xxxxxxxx
) --------------------
/s/ )
--------------------------------- ) /s/ Xxxxxx Xxxxxxxx
Witness ) -------------------------
) Xxxxxx Xxxxxxxx
)
/s/ ) /s/ Xxxx Xxxxxxxx
--------------------------------- ) -------------------------
Witness ) Xxxx Xxxxxxxx
)
) /s/ Xxxxxx Xxxxxxxx
/s/ ) -------------------------
--------------------------------- ) Xxxxxx Xxxxxxxx
Witness )
)
) INFOCAST CANADA CORPORATION
)
)
) Per: /s/
) --------------------
)
) INFOCAST CORPORATION
)
)
) Per: /s/
) --------------------
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