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EXHIBIT 10.33
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT (this "Agreement") is made and entered into
as of October __, 1996, by and between Instant Video Technologies, Inc., a
Delaware corporation ("IVT") and Xxxxxxx Xxxxxxxx ("Xxxxxxxx"), with reference
to the following facts:
X. Xxxxxxxx and IVT are parties to that certain Consulting Agreement
dated April 26, 1994 and Modifications #1 through #3 thereto (collectively, the
"Consulting Agreement").
B. The Company has also issued to Xxxxxxxx a Promissory Note dated
September 13, 1994 (the "Existing Note") in the principal amount of $25,000 in
exchange for a $25,000 loan to the Company by Xxxxxxxx. A copy of the Existing
Note is attached as Exhibit B hereto.
X. Xxxxxxxx has made claims upon IVT concerning its obligations
pursuant to the Consulting Agreement and otherwise, certain of which claims
have been disputed by IVT.
D. IVT and Xxxxxxxx now desire to settle, on mutually agreeable terms,
all disputes and claims existing between them arising out of any and all of
their dealings prior to the date hereof, regardless of when accruing,
including, without limitation, claims which have been alleged or which could
have been alleged relating to the Consulting Agreement, upon the terms and
conditions set forth below.
NOW, THEREFORE, in consideration of the foregoing, and of the mutual
covenants and conditions hereinafter contained, Xxxxxxxx and IVT agree as
follows:
1. Mutual General Release. Xxxxxxxx, on the one hand, and IVT, on the
other hand, shall execute, and hereby agree to be bound by, the terms of a
Mutual General Release (the "Release"), in the form annexed hereto as Exhibit A
and by this reference made a part hereof. Said Release shall be executed and
delivered concurrently with the execution and delivery of this Agreement, in
duplicate counterparts by Xxxxxxxx; and IVT, each of which shall be deemed an
original.
2. Consideration.
(a) Initial Cash Consideration. IVT shall pay to Xxxxxxxx,
concurrently with the execution and delivery of this Agreement, the sum of
$42,500 in cash.
(b) Additional Cash Payments. In addition to the payment
referred to in subparagraph (a) above, IVT shall, commencing on the one-month
anniversary of this Agreement, make 16
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successive monthly payments to Xxxxxxxx in the amount of $5,000 each (for an
aggregate of $80,000 of such additional cash payments)
(c) Delivery of Promissory Notes. IVT shall deliver to Xxxxxxxx,
concurrently with the execution and delivery of this Agreement, two separate
promissory notes, the first of which shall be in the principal amount of $6,000
and shall be dated as of August 19, 1994 with a maturity date of August 19,
1997 and the second of which shall be in the principal amounts of $10,000 and
shall be dated as of February 24, 1994 with a maturity date of February 24,
1998, which Promissory Notes shall be in substantially the same form as the
Existing Note (except as set forth above and except that Sections 2, 3.3 and
5.5 of the Existing Notes shall be deleted).
(d) Existing Note Obligations. IVT hereby agrees to honor its payment
obligations under the Existing Note.
(e) Additional Contingent Compensation. In addition, IVT agrees to pay
Xxxxxxxx an amount equal to 5% of the first $1 million, 4% of the second $1
million, 3% of the third $1 million, 2% of the fourth $1 million and 1% of any
amounts exceeding $5 million of equity investment in IVT made by Itochu
Technology, Inc. on or before February 26, 1997. IVT shall provide Xxxxxxxx with
written notice of any such investment within 7 days of its receipt of same.
Xxxxxxxx acknowledges and agrees that IVT has made no representations concerning
the likelihood of any such investment being made in IVT, that there can be no
assurance that any such investment will be made and that IVT may accept or
reject any such investment (if offered) in its sole and absolute discretion.
3. No Disparagement. Xxxxxxxx and IVT each agree that they shall not make
any specific or implied statement, written or oral, or otherwise engage in any
communication which disparages the other (or any of them or their respective
officers, directors, employees, agents or business practices).
4. Covenant Not to Xxx. Xxxxxxxx on the one hand, and IVT on the other,
agree that they will not bring, commence, institute, maintain or prosecute
any action or other proceeding against the other(s), its or their agents,
representatives, heirs, directors, officers, attorneys, employees, servants,
affiliates, subsidiaries, stockholders, predecessors, successors and
assigns, either affirmatively or by way of cross-complaint or counterclaim,
on any alleged claims, demands, liabilities, causes of action, suits, debts,
liens, contracts, agreements, promises, losses, damages, costs or expenses that
are barred by the Release to be executed pursuant to Paragraph 1 hereof,
including statements or representations made in securing this Agreement,
provided that this covenant not to xxx shall not extend to any action arising
out of a breach of the terms of this Agreement.
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5. Breach or Default. In the event of any breach or default of this
Agreement by Xxxxxxxx or IVT, the non-breaching party or parties shall have all
rights and remedies provided by law and equity to enforce this Agreement
including, without limitation, an action for damages and a suit to obtain
specific performance of the terms of this settlement.
6. Attorneys' Fees. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
7. Integration and Modification. This Agreement and the Exhibits
attached hereto and made a part hereof constitute the entire agreement and
understanding among Xxxxxxxx and IVT as to the subject matter hereof, and merge
all prior discussions, negotiations and agreements, written or oral, express or
implied, respecting the subject matter hereof. It is expressly understood and
agreed that this Agreement may not be altered, amended, modified, or otherwise
changed in any respect except in a writing duly executed by the party or
parties to be charged.
8. No Reliance on Other Representations. In entering into this
Agreement, Xxxxxxxx and IVT have each been advised by legal counsel and have
performed an independent investigation of all facts and circumstances deemed
relevant by such party to an evaluation of this settlement. Each party
represents and warrants that in entering into this Agreement, he or it is
relying solely and exclusively on such independent investigation and the advice
of counsel, and is not relying on any inducements, promises, warranties or
representations not expressly set forth herein.
9. Successors and Assigns. This Agreement and the Release shall inure
to the benefit of, and shall be binding on, Xxxxxxxx and IVT and each of them
and their respective agents, representatives, heirs, partners, directors,
officers, attorneys, employees, servants, affiliates, subsidiaries,
stockholders, predecessors, successors, assigns, successors in title, and
successors in interest, if any.
10. Governing Law and Severability. This Agreement shall be governed by
and construed in accordance with the laws of the State of California, excluding
that body of law applicable to choice of law. In the event any provision of
this Agreement or the application of any of its provisions shall be held by a
Court of competent jurisdiction to be contrary to law, the remaining provisions
of this Agreement shall remain in full force and effect.
11. Counterparts. This Agreement may executed in two or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument. This
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IN WITNESS WHEREOF, each of the parties hereto has duly executed this
Settlement Agreement as of the date and year first above written.
XXXXXXXX:
/s/ XXXXXXX XXXXXXXX
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IVT:
INSTANT VIDEO TECHNOLOGIES, INC.
a Delaware corporation
By: /s/ XXXX X. XXXXXXXX
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Xxxx X. Xxxxxxxx, President
