Exhibit 4.33
SETTLEMENT AGREEMENT AND GENERAL RELEASE
This Settlement Agreement and General Release (the "Agreement") is
entered into between plaintiff I-O Display Systems LLC, ILIXCO, Inc. dba Razor
Digital Media ("Plaintiffs"), on the one hand, and defendant Checquemate
International, Inc., dba C3D Digital (collectively, "Defendant"), on the other
hand. Plaintiffs and Defendant are referred to collectively as "the Parties."
RECITALS
WHEREAS, Plaintiffs commenced an action in the Superior Court of San
Mateo County, California under Civil Action Number 415826 and bearing the
caption I-O DISPLAY SYSTEMS LLC, ILIXCO, INC. DOING BUSINESS AS RAZOR DIGITAL
MEDIA VS. INTELECON SERVICES, INC., CHECQUEMATE INTERNATIONAL, INC. INDIVIDUALLY
AND DOING BUSINESS AS C3D DIGITAL, INC., XXXX XXXX, XXXX XXXXXXX, XXX XXXXX, XXX
XXXXXX, DOES 1 TO 100, (the "Action");
WHEREAS, the Parties wish to complete the settlement, compromise, and
resolution of Plaintiffs' claims against Defendant, on the terms and subject to
the conditions stated herein;
The Parties, in consideration of the covenants contained herein, and in
consideration and exchange of the following consideration, hereby stipulate and
agree as follows:
TERMS AND CONDITIONS
1.a In compromise of the claims asserted by Plaintiffs in
the Action, Defendant has transferred to Plaintiff the total of 2,535,377
shares of the common stock of
SETTLEMENT AGREEMENT AND RELEASE
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Checquemate International, Inc., (the "Shares") which shares are included among
those to be registered for trading on the open market pursuant to a Form S-3
Registration Statement filed by Defendant with the Securities and Exchange
Commission on November 30, 2001. Subject to all applicable laws, Defendant will
use its best efforts to cause its Form S-3 Registration Statement to become
effective at the earliest commercially reasonable time. Defendant will take no
action to omit Plaintiffs' Shares from the Registration Statement, or any
amendment thereto, or to cause Plaintiffs' Shares to become registered later
than other shares registered pursuant to the same Registration Statement, and
will inform Plaintiff, through Xx. Xxxxxxx Xxxxxxxx or its then current chief
executive officer, promptly and in writing as soon as Plaintiffs' Shares are
registered.
1.b Defendant provides the conditional liquidation guarantees
described below during a Guarantee Period not to exceed 540 days after the
Registration Statement is declared effective, and Plaintiffs agree, as
described below, to the orderly liquidation of any Shares liquidated during
that same Guarantee Period. In any single calendar month, Plaintiffs may, but
are not required to, liquidate no more than 120,000 shares (approximately 6%
of the present gross Share position), or 6% of the average monthly trading
volume of Defendant's common stock during the three month period preceding
the intended sale, whichever is greater. Upon Plaintiffs' request, Defendant
may except from this orderly liquidation provision any Shares directly
purchased from Plaintiffs by third parties, and shall except from this
provision at least $100,000 in Shares (based on a per share price of $0.17)
purchased by third parties. Plaintiffs grant Defendant a right of first
refusal to purchase any Shares Plaintiffs intend to liquidate; Defendant
shall provide to Plaintiffs a form of written Notice to be used for this
purpose. Defendant shall have at least three business days to exercise its
right to purchase any Shares
SETTLEMENT AGREEMENT AND RELEASE
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Plaintiffs may elect to liquidate during the Guarantee Period. If, at the end of
the Guarantee Period, Plaintiffs' Shares do not have an Aggregate Value of at
least $370,000 (determined by the thirty day trailing average closing price of
Defendant's common stock), then Defendant shall transfer to Plaintiffs an amount
of registered shares or cash, at Defendant's discretion, equal to the difference
between the Aggregate Value and $370,000. The gross proceeds of any Shares
liquidated during the Guarantee Period (including any shares purchased from
Plaintiff by any third party) shall be deducted from any amount due. Plaintiffs
shall promptly provide Defendant with all documents necessary to determine what,
if any, amounts may be due under this provision.
1.c Plaintiffs filed a Request for Default in the Action on or
about April 17, 2001, and a default was entered against Defendant on or about
that date. On December 14, 2001, Plaintiffs applied for a Default Judgment
against Defendant, and a Default Judgment was entered against Defendant on or
about December 26, 2001. Pursuant to a Writ of Execution obtained by
Plaintiffs on the Default Judgment, Plaintiffs caused the Writ of Execution
and Notice of Levy in the amount of $540,008 to have been served on certain
financial accounts of Defendant. Plaintiffs will take or cooperate with such
action as may be necessary and sufficient to vacate the default and default
judgment, quash and recall the Writ of Execution, and release the Levy. After
the Default and Default Judgment have been vacated, the Writ of Execution
recalled and quashed, the Notice of Levy released, and this Agreement
executed, Plaintiffs will dismiss the Action against Defendant with
prejudice. Plaintiffs will file a request for dismissal of the Action against
Defendant with prejudice, in the form attached hereto as Exhibit A, within
three business days after receiving a fully executed copy of this Agreement.
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1.d Plaintiffs will, upon receipt of cashier's checks from
Defendant totaling $200,000 as described below, immediately direct the
levying officer in writing to return the sum of $540,008 levied from the
accounts of Defendant pursuant to Writ of Execution and Notice of Levy to
Defendant, and Defendant will provide Plaintiffs with a cashier's check for
$170,000. Plaintiffs shall not negotiate this check until and unless
Plaintiffs have confirmed with the Levying Officer in writing, and given
written notice to Defendant, that the Levying Officer has accepted and will
execute Plaintiffs' instruction to release the Levy and levied funds. Upon
receipt of Plaintiffs' Statement of Non-Opposition, as described below,
Defendant will promptly move to set aside the Default and Default Judgment
and recall and quash the Writ of Execution, which motion Plaintiff will, in
writing, not oppose and agree to the entry of an Order setting aside the
Default and Default Judgment and quashing and recalling the Writ of Execution
in a Statement of Non-Opposition. Defendant will refrain from filing a
cross-complaint in connection with the motion to set aside the Default and
Default Judgment, which claims shall be tolled pending Plaintiffs'
performance of their obligations under this Agreement. Plaintiffs will cease
any and all efforts to execute on the Default Judgment and Writ of Execution
and make no further efforts to execute on the Default Judgment, and warrant
that no efforts, other than the Levy against Defendant's accounts at Xxxxx
Fargo Bank to be released as described in this Agreement and the Parties'
Memorandum of Understanding, have been made.
1.e In consideration of this Agreement, Defendant has provided
Plaintiffs with a further cashier's check for $30,000, which amount shall be
returned to Defendant immediately in the event that Plaintiffs' Shares become
registered and any third party consummates the purchase of Plaintiffs' Shares
in a gross dollar amount greater than, or equal to, $100,000 (based
SETTLEMENT AGREEMENT AND RELEASE
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on a per share price of $0.17) within six months of January 8, 2002, which
purchase on such terms Plaintiffs shall not unreasonably refuse or delay. If the
Shares are not registered and no third party transaction is consummated as
contemplated in this paragraph, then Plaintiff may retain the $30,000.
2.a Plaintiffs, on their own behalf and on behalf of their
employees, representatives, partners, agents, heirs, dependents, executors,
successors, attorneys and assigns, and each of them, hereby release and
forever discharge Defendant, and each of its current and former employees,
representatives, partners, agents, attorneys, heirs, successors, assigns,
officers, directors, parents, subsidiaries, affiliates and controlling
persons, past and present, of and from all claims, liabilities, demands,
damages, actions, and causes of action, at law or in equity, of every kind
and nature, including claims for attorneys' fees or costs, whether known or
unknown, existing, claimed to exist, or which may hereafter arise.
2.b Defendant, on its own behalf and on behalf of its employees,
representatives, partners, agents, heirs, dependents, executors, successors,
attorneys and assigns, and each of them, hereby releases and forever
discharges Plaintiffs, and each of their current and former employees,
representatives, partners, agents, attorneys, heirs, successors, assigns,
officers, directors, parents, subsidiaries, affiliates and controlling
persons, past and present, of and from all claims, liabilities, demands,
damages, actions, and causes of action, at law or in equity, of every kind
and nature, including claims for attorneys' fees or costs, whether known or
unknown, existing, claimed to exist, or which may hereafter arise.
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3.a Plaintiffs specifically understand, acknowledge and agree that
this is a full and final release of all claims described herein, whether
known or unknown, and whether or not included in the pleadings of the Action.
Plaintiffs therefore hereby expressly and voluntarily waive all rights or
benefits which Plaintiffs might otherwise have under Section 1542 of the
Civil Code of the State of California, which provides:
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 THE SETTLEMENT WITH THE DEBTOR.
Plaintiffs further expressly and voluntarily waive any substantially similar or
equivalent statutory, common law, or equitable rights or benefits arising under
the laws of any other jurisdiction. Plaintiffs acknowledge that claims or facts
in addition to or different from those which are now known or believed to exist
may later be discovered with respect to any claim, demand, damage, action, or
cause of action that they, or any of them, may possess against Defendant, or its
respective, heirs, successors, assigns, officers, directors, agents, attorneys,
employees, partners, representatives, parents, subsidiaries, affiliates or
controlling persons, or any of them, but they nevertheless intends this release
to be effective as a full, general release.
3.b Defendant specifically understands, acknowledges and agrees
that this is a full and final release of all claims described herein, whether
known or unknown, and whether or not included in the pleadings of the Action.
Defendant therefore hereby expressly and voluntarily waives all rights or
benefits which Defendant might otherwise have under Section 1542 of the Civil
Code of the State of California, which provides:
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
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MATERIALLY AFFECTED THE SETTLEMENT WITH THE DEBTOR.
Defendant further expressly and voluntarily waives any substantially
similar or equivalent statutory, common law, or equitable rights or benefits
arising under the laws of any other jurisdiction. Defendant acknowledges that
claims or facts in addition to or different from those which are now known or
believed to exist may later be discovered with respect to any claim, demand,
damage, action, or cause of action that it may possess against Plaintiffs, or
any of them, but it nevertheless intends this release to be effective as a full,
general release.
4. This Agreement is in full accord, satisfaction and discharge of all
of the claims described herein. This Agreement has been executed with the
express intention of effectuating the full and final extinguishment of all such
claims.
5. Each Party warrants that no other person or entity has claimed or
now claims any interest in the subject of this Agreement, that it has the sole
right and exclusive authority to execute this Agreement, and that it has not
sold, assigned, or otherwise transferred to any other person or entity, any
claim, demand, damages, action, or cause of any kind or nature covered by this
Agreement.
6.a Plaintiffs, and each of them, represent, warrant and
agree that they will not, at any time hereafter, initiate, assign, maintain
or prosecute, or knowingly aid in the initiation, maintenance or prosecution
of any claim, demand or cause of action against Defendant or any of its
respective heirs, successors, assigns, officers, directors, agents,
attorneys, employees, representatives, partners, parents, subsidiaries,
affiliated corporations or controlling persons, for damages, loss or injury
of any kind arising from, or relating to, or in any way
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connected to any transactions, events, occurrences, acts or failures to act with
respect to which Plaintiffs have released Defendant pursuant to this Agreement.
Plaintiffs, and each of them, further represent and warrant that, except for the
Action described herein, neither they nor their parents, subsidiaries,
affiliates, partners, shareholders, heirs, dependents, executors, employees,
agents, attorneys, representatives, successors or assigns has instituted any
proceeding, action or claim against Defendant, or its respective, heirs,
successors, assigns, officers, directors, agents, attorneys, employees,
partners, representatives, parents, subsidiaries, affiliates or controlling
persons with respect to the subject matter of this Agreement. Plaintiffs, and
each of them, further represent and warrant that no claim covered by this
Agreement has been sold, assigned, transferred, conveyed or otherwise disposed
of.
6.b Defendant represents, warrants and agrees that it will
not at any time hereafter, initiate, assign, maintain or prosecute, or
knowingly aid in the initiation, maintenance or prosecution of any claim,
demand or cause of action against Plaintiffs or any of their respective
heirs, successors, assigns, officers, directors, agents, attorneys,
employees, representatives, partners, parents, subsidiaries, affiliated
corporations or controlling persons, for damages, loss or injury of any kind
arising from, or relating to, or in any way connected to any transactions,
events, occurrences, acts or failures to act with respect to which Defendant
has released Plaintiffs pursuant to this Agreement. Defendant further
represents and warrants that, except for the Action described herein, neither
it nor its parents, subsidiaries, affiliates, partners, shareholders, heirs,
dependents, executors, employees, agents, attorneys, representatives,
successors or assigns has instituted any proceeding, action or claim against
Plaintiffs, or any of them, or their respective, heirs, successors, assigns,
officers, directors, agents, attorneys,
SETTLEMENT AGREEMENT AND RELEASE
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employees, partners, representatives, parents, subsidiaries, affiliates or
controlling persons with respect to the subject matter of this Agreement.
Defendant further represents and warrants that no claim covered by this
Agreement has been sold, assigned, transferred, conveyed or otherwise disposed
of.
7. It is specifically understood and agreed that this Agreement may be
pleaded as a full and complete defense to and may be used as the basis for an
injunction against any action, arbitration, suit, or other proceeding which may
be instituted, prosecuted or attempted in breach of this Agreement. In the event
that litigation is necessary to enforce a provision or provisions of this
Agreement, all costs and attorneys' fees shall be paid by the non-prevailing
party or parties to the prevailing party or parties.
8. The Parties agree that they will cooperate to execute all papers and
documents as may be necessary and proper to fulfill the terms and conditions of
this Agreement.
9. The Parties agree to treat this Agreement, and the terms hereof, as
a confidential matter not to be disclosed to third parties, with the exception
that the fact of settlement and dismissal of the Action (as opposed to any
actual term or the fact or amount of consideration) may be disclosed. The
Parties hereby agree, and will cause their counsel, to maintain the
confidentiality of the terms and conditions of this Agreement and the matters
related thereto and shall not disclose, discuss, or comment on the same to any
third party except as necessary for the implementation of this Agreement or as
otherwise required by the lawful order of any judicial or administrative
tribunal, or as required to comply with applicable laws or regulations.
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10. This Agreement represents a good faith compromise of disputed
claims and is not and shall not be considered, regarded, or described as an
admission of liability or responsibility by any Party. Plaintiffs acknowledge
that Defendant continues to deny liability, disclaim responsibility, and dispute
the factual allegations claimed by Plaintiffs.
11. The Parties warrant that no promise, inducement, representation or
agreement not expressly set forth herein has been made to them in connection
with this Agreement. The Parties agree that, prior to the execution of this
Agreement, they have apprised themselves of sufficient relevant data, through
resources of their own selection, and have consulted with their respective
counsel, in order that they might intelligently exercise their judgment in
deciding whether to execute this Agreement. This Agreement constitutes the
entire agreement between the Parties herein named, and supersedes any and all
prior oral and written agreements and understandings. The Agreement may not be
altered, amended, or modified or otherwise changed in any respect whatsoever
except by a writing duly executed by the Parties or their authorized
representatives. It shall be interpreted as if it were mutually prepared and
drafted (regardless of which Party actually drafted the Agreement), such that
any rule of construction which would otherwise require that ambiguities be
resolved against the drafting Party shall not apply.
12. All of the provisions of this Agreement are contractual and not
mere recitals, and shall be considered severable, such that if any provision or
part hereof shall at any time be held under any law or ruling to be invalid,
such provision or part shall remain in force to the extent allowed by law, and
all other provisions shall remain in full force and effect and enforceable.
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13. This Agreement shall be construed and enforced according and
pursuant to the laws of the State of California.
14. The Parties agree to the jurisdiction of the San Mateo County
Superior Court to enforce the provisions of this Agreement.
15. This Agreement may be executed in counterparts and by facsimile
signatures, which, taken together, shall constitute the whole of the agreement
between the Parties.
IN WITNESS WHEREOF, the Parties have executed this Agreement and
General Release on the respective dates set forth below:
I-O Display Systems LLC
Date: January ___, 2002 -------------------------------------------
by Xxxxxxx Xxxxxxxx, its __________________
ILIXCO, Inc.
Date: January ___, 2002 -------------------------------------------
by Xxxxxxx Xxxxxxxx, its __________________
Checquemate International, Inc.,
dba C3D Digital
Date: January ___, 2002 --------------------------------------------
by Xxxxxxx Xxxxx, its ______________________
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