AGREEMENT
EXHIBIT
NO#
AGREEMENT
This
Agreement is made and entered as of the __ day of January, 2005, by and between
International Microcomputer Software, Inc., a California corporation ("IMSI")
Digital Creative Development Corporation, a Delaware corporation
("DCDC"),
and
Multi
Mag Corporation having an address at 00 Xxxxx Xxxx, Xxxxxxxx, Xxx Xxxx
("Purchaser").
Whereas,
IMSI is the holder of a 15% Promissory Note originally issued in the principal
amount of $350,000 by DCDC on September 18, 2003, and modified by an Agreement
(the "Modification Agreement") by and between IMSI and DCDC dated September
18,
2004 (the Promissory Note as modified hereinafter referred to as the "Note")
and
upon which a current principal balance of $325,000 is outstanding; and
Whereas,
IMSI's rights under the Note are secured pursuant to a Pledge and Security
Agreement by and between DCDC and IMSI, dated September 18, 2003, as modified
by
the Modification Agreement (the Pledge and Security Agreement as modified
hereinafter referred to as the "Pledge Agreement"); and
Whereas,
pursuant to the Pledge Agreement, DCDC has pledged to IMSI collateral consisting
of 400,000 shares of IMSI common stock represented by Certificate No. Ms
14780
(the "IMSI Stock") and 304,250 shares of Series A Preferred stock of Access
Propeller Holdings, Inc. (the "AP Stock") represented by Certificate No.
PA4
(the IMSI Stock and AP Stock hereinafter referred to collectively as the
"Collateral"); and
Whereas,
Purchaser has agreed to purchase and IMSI has agreed to sell to Purchaser
the
Note and all of IMSI's rights under the Pledge Agreement;
Now
therefore, in consideration of the premises and the mutual covenants contained
herein, the parties hereto hereby agree as follows:
1.
Purchase
and Sale of the Note and Rights Under the Pledge Agreement.
IMSI has
agreed to sell, transfer and assign to Purchaser, and Purchaser has agreed
to
Purchase from IMSI, the Note and all of IMSI's rights pursuant to the Pledge
Agreement.
2.
DCDC's
Consent to Sale of Note and Assignment of Rights Pursuant to Pledge
Agreement.
As an
inducement to Purchaser to purchase the Note and rights pursuant to the Pledge
Agreement from IMSI, DCDC hereby confirms its consent to such sale and
assignment, and agrees that it shall hereafter treat Purchaser as the "Payee"
under the Note, as if Purchaser had been named Payee in the Note. DCDC further
acknowledges hereby its consent to the assignment of the Pledge Agreement
by
IMSI to Purchaser, as required by Section 14 of the Pledge
Agreement.
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3.
Purchaser's
Representations.
Purchaser hereby represents and warrants to IMSI that:
a)
Purchaser is purchasing the Note for investment and not with a view to the
distribution thereof;
b)
Purchaser understands that the IMSI Stock, if actually acquired by Purchaser
by
foreclosure pursuant to the Pledge Agreement, will have been acquired from
an
Affiliate of IMSI, as that term is defined in Rule 144 promulgated by the
Securities and Exchange Commission pursuant to the Securities Act of 1933,
as
amended (the "Act"). Purchaser represents and warrants to IMSI that Purchaser
is
not purchasing the Note and rights under the Pledge Agreement for the purpose
of
acquiring the IMSI Stock. Further, Purchaser acknowledges its understanding
that, in the event it should foreclose upon the Collateral and thereby acquire
the IMSI Stock, such stock will be "restricted securities" as defined in
Rule
144(a)(3) and may only be sold by it in compliance with the conditions
pertaining to resale of restricted securities as provided in Rule 144, or
pursuant to an exemption from the registration requirements of the Act.
Purchaser understands and agrees that, prior to its resale of the IMSI Stock,
IMSI may require Purchaser to provide it with an opinion of counsel to the
effect that such sale may be effected with violation of the Act or any of
the
rules and regulations promulgated by the Securities and Exchange Commission
pursuant to the Act.
c)
Purchaser understands that the AP Stock represents an interest in a closely
held
Delaware corporation and, as such, there is no public market for such stock,
nor
is it likely that any such market will develop in the foreseeable future.
Purchaser has made its own investigation as to the financial condition and
prospects of Access Propeller Holdings, Inc. ("AP"), and Purchaser acknowledges
that it has received no financial or other information concerning AP from
IMSI,
except as specifically set forth herein.
4.
Miscellaneous.
a)
This
agreement, including the documents and instruments referred to herein,
constitutes the entire agreement by and among the parties, and supersedes
all
other prior agreements and understandings, both written and oral, between
the
parties hereto, or any of them, with respect to the subject matter
hereof.
b)
This
agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.
c)
Any
notice required or permitted hereunder shall be given in writing and shall
be
deemed to have been duly given when personally delivered, or two days after
deposit in the United States mail, first class postage prepaid, addressed
to the
party to whom notice is given at the address set forth on the signature page
hereof. Any party may change its address for notice by a notice given in
the
manner set forth herein.
d)
This
agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which taken together shall constitute one
document.
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IN
WITNESS WHEREOF, the parties hereto have caused this agreement to be executed
by
their duly authorized officers as of the day and year first set forth above.
| INTERNATIONAL MICROCOMPUTER SOFTWARE, INC. | DIGITAL CREATIVE DEVELOPMENTCORPORATION |
| 000 Xxxxxxx Xxx Xxxxx 000 | 1325 Avenue of the Xxxxxxxx, 00xx Xxxxx |
| Xxxxxx, Xxxxxxxxxx 00000 | Xxx Xxxx, Xxx Xxxx 00000 |
|
By
|
By
|
| MULTI MAG CORPORATION | |
| 00 Xxxxx Xxxx, | |
| Xxxxxxxx, Xxx Xxxx | |
|
By
|
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