1
EXHIBIT 10.92
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release (the "Agreement") is made and
entered into, and effective as of the 24th day of July, 1998, by and among
American Artists Film Corporation ("AAFC") and Millennium Group, LLC (the
"Company"), on one hand, and Xx. Xxxxxx Xxx, Dr. Xxxxxxx Xxxxx and Xxxxx
Mount-Xxxxx, JTWROS and Xxxxx Xxxxxxxx (collectively "Investors") on the other
hand. The Company, AAFC and Investors are sometimes collectively referred to
herein as the Settling Parties.
RECITALS
A. The Investors own an aggregate of ten (10) membership interest units
("Interests") in the Company, a Georgia limited liability company, formed to
participate in the entertainment industry by engaging in the licensing,
production, ownership, distribution and exploitation of a sixty minute video
("Video") exploring the subject of the millennium throughout recorded history to
present day, as further described in the Millennium private placement memorandum
dated November 15, 1994, attached hereto as Exhibit "A" (the "Private
Placement).
B. The Investors have held their respective Interests for several years
in which such time and as of this date, the Company has been unable to secure a
licensing agreement with a domestic television network or cable system and has
also been unable to arrange for additional capital investments, debt or
co-venture financing, presale of territorial distribution rights or make any
additional deferments to fund the completion and distribution of the Video.
C. The Investors, at this time, wish to voluntarily convert their
Interests into common stock of AAFC. The Investors (i) are current shareholders
in AAFC, (ii) have read AAFC's most recent quarterly and annual reports, among
others, as reported to the Securities and Exchange Commission ("SEC"), (iii)
have had the opportunity to ask questions of and receive answers from the
Company and AAFC or a person or persons acting on its behalf, concerning the
Company and AAFC as well as such other information as the Investors desired and
(iv) have had all such questions answered and all information provided to their
full satisfaction.
NOW, THEREFORE, in consideration of the terms and conditions of this
Agreement, and for good and valuable consideration, the Settling Parties agree
and release each other as follows:
-1-
2
1. The Company and AAFC agree that when they receive from Investors the
fully executed original of this Settlement Agreement and Release, the Company
and AAFC will cause to be delivered to Investors within ten (10) business days
an aggregate of twenty-five thousand (25,000) shares of AAFC's Class A Common
Stock, $.001 par value (the "Settlement Shares") which shall be distributed to
the Investors pro rata to their Interests as follows:
No. % %
Settlement of Original of
Investor Shares Total Unit Ownership Total
-------- ------ ----- -------------- -----
-----------------------------------------------------------------------------------
Xx. Xxxxxx Xxx 7,500 30% 3 Units ($15,000) 30%
-----------------------------------------------------------------------------------
Dr. Xxxxxxx Xxxxx and Xxxxx
Mount-Gross, JTWROS 5,000 20% 2 Units ($10,000) 20%
-----------------------------------------------------------------------------------
Xxxxx Xxxxxxxx 12,500 50% 5 Units ($25,000) 50%
-----------------------------------------------------------------------------------
TOTAL 25,000 100% 10 Units ($50,000) 100%
-----------------------------------------------------------------------------------
2. The Settlement Shares shall be issued in full, final, and complete
settlement of all claims, charges, or complaints by the Investors which arise
from or relate to the Private Placement. Further, any and all Interests, rights,
ownership, distributions, claims, etc., of every kind and nature, held by the
Investors in the Company, (and the subsequent Video) will revert to the Company
and the Company will retain ownership of all Interests, rights, ownership,
distributions, claims, etc., of every kind and nature of any and all material
developed or used for the Video including, without limitation, all rights of
ownership and copyright in all media now known or hereinafter devised in all
territories of the universe in perpetuity.
3. The Investors understand that (i) the Settlement Shares are not
being registered under the Securities Act of 1933, as amended ("1933 Act") on
the ground that the issuance thereof is exempt from registration under Section
4(2) of the 1933 Act as a transaction by an issuer not involving a public
offering, and the Company's and AAFC's reliance on this exemption is predicated
in part on the Investors' representations and warranties contained herein. The
Investors have represented that they are "accredited investors" as defined in
the 1933 Act and are acquiring the Settlement Shares for their own account, for
investment purposes only and not with a view to the sale or distribution
thereof. The Settlement Shares may not be offered for sale, sold, assigned, or
transferred unless (a) subsequently registered thereunder, (b) Investors shall
have delivered to AAFC an opinion of counsel, in a generally acceptable form, to
the effect that such securities to be sold, assigned, or transferred may be
sold, assigned, or transferred pursuant to an exemption from such registration,
or (c) Investors provide AAFC with reasonable assurances that such securities
can be sold, assigned, or transferred pursuant to Rule 144 promulgated under the
1933 Act (or a successor rule thereto); (ii) any sale of such securities made in
reliance on Rule 144 promulgated under the 1933 Act (or a successor rule
thereto) ("Rule 144") may be made only in accordance with the terms of Rule 144
and further, if Rule 144 is not applicable, any resale of such securities under
circumstances in which the seller (or the person through whom the sale is made)
may be deemed to be an underwriter (as that term is defined in the 0000 Xxx) may
require compliance with some other exemption under the 1933 Act
-2-
3
or the rules and regulations of the SEC thereunder; and (iii) neither the
Company or AAFC nor any other person is under any obligation to register such
securities under the 1933 Act or any state securities laws or to comply with the
terms and conditions of any exemption thereunder.
4. Investors understand that the certificates or other instruments
representing the Settlement Shares and until such time as the sale of the
Settlement Shares have been registered under the 1933 Act, the stock
certificates representing the Settlement Shares shall bear a restrictive legend
in substantially the following form (and a stop transfer order may be placed
against transfer of such stock certificates):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND
MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED, OR ASSIGNED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES
LAWS, OR AN OPINION OF COUNSEL, IN A GENERALLY ACCEPTABLE FORM, THAT
REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE
SECURITIES LAWS OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SAID ACT.
5. Investors severally hereby irrevocably and unconditionally release,
acquit, and forever discharges the Company and AAFC and each of their respective
predecessors, merger partners, successors, assigns, agents, officers, directors,
employees, representatives, attorneys, divisions, subsidiaries, affiliates, and
parent corporations (and former and present agents, officers, directors,
employees, representatives, and attorneys of such entities) and all persons
acting by, through, under or in concert with them or any of them (all of the
above hereafter collectively referred to as "Company Releasees"), from any and
all charges, complaints, claims, liabilities, obligations, promises, agreements,
controversies, damages, actions, causes of action, suits, rights, demands,
costs, losses, debts, and expenses (including attorneys' fees and costs actually
incurred), or nature whatsoever arising out of or in connection with the
Interests that Investors or any of its predecessors, merger partners,
successors, privies, assigns, agents, directors, officers, employees,
representatives, attorneys, divisions, insurers, indemnors, subsidiaries,
affiliates, and parent corporations (and former and present agents, officers,
directors, employees, representatives, and attorneys of such entities) may now
have, own, or hold, or that at any time heretofore had, owned, or held.
Investors expressly acknowledge that this paragraph of this Settlement Agreement
and Release is intended to include in its effect, without limitation, all such
claims that the parties do not know or suspect to exist in their favor at the
time of execution hereof, and that this Agreement contemplates the
extinguishment of any such claim or claims.
-3-
4
6. The Company and AAFC hereby irrevocably and unconditionally release,
acquit, and forever discharge Investors and each Investors' predecessors,
successors, assigns, agents, officers, directors, employees, representatives,
attorneys, divisions, subsidiaries, affiliates (and former and present agents,
officers, directors, employees, representatives, and attorneys of such entities)
and all persons acting by, through, under or in concert with them or any of them
(all of the above hereafter collectively referred to as "Investors"), from any
and all charges, complaints, claims, liabilities, obligations, promises,
agreements, controversies, damages, actions, causes of action, suits, rights,
demands costs, losses, debts, and expenses (including attorneys' fees and costs
actually incurred), of any nature whatsoever arising out of or in connection
with the Interests that the Company and AAFC or any of their predecessors,
merger partners, successors, privies, assigns, agents, directors, officers,
employees, representatives, attorneys, divisions, insurers, indemnors,
subsidiaries, affiliates (and former and present agents, officers, directors,
employees, representatives and attorneys of any such entities) may now have,
own, or hold, or that at any time heretofore had, owned, or held. The Company
and AAFC acknowledge that this paragraph of this Settlement Agreement and
Release is intended to include in its effect, without limitation, all such
claims that the parties do not know or suspect to exists in their favor at the
time of execution hereof, and that this Agreement contemplates the
extinguishment of any such claim or claims.
7. Investors, the Company and AAFC represent and agree that they have
thoroughly discussed all aspects of this Settlement Agreement and Release with
their private attorneys, that they are fully aware of their right to discuss any
and all aspects of this matter with an attorney chosen by them, that they have
carefully read and fully understand all of the provisions of this Settlement
Agreement and Release, and that they are voluntarily entering into this
Settlement Agreement and Release.
8. As a further material inducement to each part to enter into this
Settlement Agreement and Release, each party hereby agrees that if it breaches
this Agreement, it will indemnify and hold all other parties harmless from and
against any and all resulting loss, cost, damage, award, or expense, including,
without limitation, all attorney's fees.
9. Investors, the Company and AAFC represent and acknowledge that in
executing this Settlement Agreement and Release, they do not rely and have not
relied on any representation or statement made by the other or by any of the
other's agents, representatives, or attorneys with regard to the subject matter,
basis or effect of this Settlement Agreement and Release or otherwise, except as
set forth specifically in this Agreement.
10. This Settlement Agreement and Release shall be binding on all
parties, and any of their predecessors, parent corporations, merger partners,
successors, privies, assigns, agents, directors, officers, employees,
representatives, attorneys, divisions, insurers, indemnors, subsidiaries,
affiliates (an former and present agents, officers, directors, employees,
representatives, and attorneys of any such divisions, subsidiaries and
affiliates) and shall inure to
-4-
5
the benefit of the parties hereto and to their predecessors, parent
corporations, merger partners, successors, privies, assigns, agents, directors,
officers, employees, representatives, attorneys divisions, insurers, indemnors,
subsidiaries, affiliates (and former and present agents, officers, directors,
employees, representatives, and attorneys of any such divisions, subsidiaries
and affiliates), except as expressly limited by paragraphs Five (5) and Six (6)
hereof.
11. This Settlement Agreement and Release shall in all respects be
interpreted, enforced, and governed under the laws of the State of Georgia. The
language of all parts of this Settlement Agreement and Release shall in all
cases be construed as a whole, according to its fair meaning, and not strictly
for or against any of the parties.
12. Should any provision of this Settlement Agreement and Release be
declared or be determined by any court to be illegal or invalid, the validity of
the remaining parts, terms, or provisions shall not be affected thereby and said
illegal or invalid part, term, or provision shall be deemed not to be a part of
this Settlement Agreement and Release.
13. As used in this Settlement Agreement and Release, the masculine or
neuter gender, and singular or plural number, shall be deemed to include the
others whenever the context so indicates or requires.
14. The parties hereto represent that they have not heretofore assigned
or transferred, or purported to assign or transfer, to any person or entity, any
claim or any portion thereof or interest therein released by this Settlement
Agreement and Release and they agree to indemnify, defend and hold the other
harmless from an against any and all claims, based on or arising out of any such
assignment or transfer or purported assignment or transfer of any such claims or
based on or arising out of any subrogation to any such claims, or any portion
thereof or interest therein.
15. This Agreement does not constitute an admission of liability by any
party to any other party and the Company, AAFC and Investors expressly deny any
liability to each other. Further, the Investors agree to hold the existence and
terms of this Settlement Agreement and Release confidential and shall not
disclose the same to any third party unless required to by law. Prior to any
such required disclosure, the Investors shall provide the Company and AAFC at
least five (5) days prior notice of such disclosure.
16. This Settlement Agreement and Release sets forth the entire
agreement between the parties hereto, and fully supersedes any and all prior
agreements or understandings between the parties hereto pertaining to the
subject matter hereof.
-5-
6
17. This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original, but all of which shall constitute one and the
same agreement.
AGREED AS FOLLOWS:
MILLENNIUM GROUP, LLC
By: /s/ J. Xxxx Xxx Xxxx
-------------------------------------
J. Xxxx Xxx Xxxx
Its: Vice President and Secretary
AMERICAN ARTISTS FILM CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxxx
Its: Chief Financial Officer & Treasurer
INVESTORS
By: /s/ Xxxxxx Xxx
----------------------------------
Xx. Xxxxxx Xxx
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxxxx Mount-Xxxxx
---------------------------------- -------------------------------------
Dr. Xxxxxxx Xxxxx Xxxxx Mount-Xxxxx
By: /s/ Xxxxx Xxxxxxxx
----------------------------------
Xxxxx Xxxxxxxx
-6-
