EXHIBIT 10.55
AGREEMENT
THIS AGREEMENT, dated as of September___, 2002 is by and between New
Visual Corporation, a Utah corporation ("NEW VISUAL"), and Starburst Innovations
LLC, a _____ limited liability company ("STARBURST").
WITNESSETH:
WHEREAS, New Visual is party to a certain Settlement Agreement and
Mutual Release (the "SETTLEMENT AGREEMENT") by and among New Visual, Xxxxx X.
Xxxxxxx ("XXXXXXX") and Xxxxxxx Xxxxxxxx ("XXXXXXXX"), pursuant to which New
Visual agreed to purchase 250,000 shares of common stock of New Visual held by
Xxxxxxx (the "XXXXXXX SHARES") and 250,000 shares of common stock of New Visual
held by Xxxxxxxx (the "XXXXXXXX SHARES," and collectively with the Xxxxxxx
Shares, the "SETTLEMENT SHARES") in four equal installment purchases to occur on
or before August 1, 2002, September 15, 2002, November 1, 2002 and December 15,
2002 (collectively, the "PURCHASE DATES"), for the aggregate sum of $375,000 for
all 500,000 Settlement Shares; and
WHEREAS, prior to the date hereof Starburst and New Visual agreed that
Starburst would purchase an aggregate of 390,667 of the Settlement Shares from
Xxxxxxx and Xxxxxxxx, and Starburst deposited with New Visual $293,000 to be
paid to Xxxxxxx and Xxxxxxxx on the Purchase Dates for such shares;
WHEREAS, payments totaling $187,500 were made to Xxxxxxx and Xxxxxxxx
on the August 1 and September 15 Purchase Dates for an aggregate of 250,000
Settlement Shares; and
WHEREAS, (I) Starburst wishes New Visual to transfer the remaining
$105,500 on deposit to Xxxxxxx and Xxxxxxxx on the subsequent Purchase Dates
purchase an additional 140,667 Settlement Shares; (II) New Visual wishes to
grant Starburst the option to purchase the 109,333 Settlement Shares that will
then remain to be purchased; and (III) New Visual wishes to issue to Starburst
an additional 300,000 shares of the common stock of New Visual (the "STARBURST
SHARES") in consideration of Starburst's agreement to purchase all or part of
the Settlement Shares in lieu of New Visual.
NOW, THEREFORE, in consideration of the foregoing recitals and of the
mutual agreements contained herein, the parties hereto agree as follows:
SECTION 1. APPLICATION OF FUNDS ON DEPOSIT. On November 1, 2002 New
Visual will transfer to each of Xxxxxxx and Xxxxxxxx on Starburst's behalf
$46,875 (for an aggregate of $93,750) out of the $105,500 remaining of funds
previously deposited by Starburst with New Visual. On December 15, 2002 New
Visual will transfer to each of Xxxxxxx and Xxxxxxxx on Starburst's behalf $
5,875 (for an aggregate of $11,750) which will equal the balance of the original
funds deposited by Starburst with New Visual. In accordance with Starburst's
acquisition of certain of New Visual's rights under the Settlement Agreement,
the parties acknowledge that such funds will purchase for Starburst an
additional 140,667 of the Settlement Shares from Xxxxxxx and Xxxxxxxx.
SECTION 2. OPTION TO PURCHASE REMAINDER OF SETTLEMENT SHARES. New
Visual hereby grants Starburst the option to purchase all or any part of the
109,333 Settlement Shares that will remain to be purchased by New Visual on
December 15, 2002, pursuant to the Settlement Agreement. If Starburst elects to
exercise this option it will do so by depositing with New Visual, prior to
December 15, 2002, an additional sum representing the aggregate purchase price
for the Settlement Shares it desires to purchase from Xxxxxxx and Xxxxxxxx (the
"ADDITIONAL SHARES"). In the event such a deposit is made, on December 15, 2002,
New Visual will transfer to each of Xxxxxxx and Xxxxxxxx on Starburst's behalf,
the funds deposited with New Visual, and Starburst will thereby purchase the
Additional Shares from Xxxxxxx and Xxxxxxxx.
SECTION 3. GRANT OF SHARES TO STARBURST. New Visual hereby grants
Starburst 300,000 shares of restricted common stock of New Visual. Starburst
acknowledges that the stock certificates representing such Starburst Shares will
be appropriately legended to restrict transfer.
SECTION 4. WAIVER OF BREACH. The actual or apparent waiver by either
party to this Agreement of a breach of any provision of this Agreement will not
operate or be construed as an actual or constructive waiver of that breach or
any subsequent breach by any party. Waivers are not effective unless in writing
and signed by the party granting the waiver.
SECTION 5. MULTIPLE COUNTERPARTS. This Agreement may be executed in
counterparts, each of which for all purposes is to be deemed an original, and
all of which constitute, collectively, one agreement. In making proof of this
Agreement, it will not be necessary to produce or account for more than one
counterpart of this Agreement. Furthermore, a photocopy of any counterpart will
be valid and have the same effect as an original.
SECTION 6. SEVERABILITY AND SAVINGS CLAUSE. If any one or more of the
provisions or subjects contained in this Agreement is for any reason held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability will not affect the validity and enforceability of any other
provisions or subjects of this Agreement, and it is the intention of the parties
that there shall be substituted for such invalid, illegal or unenforceable
provision a provision as similar to such provision as may be possible and yet be
valid, legal and enforceable.
SECTION 7. SUCCESSORS; SURVIVAL; AFFILIATES. This Agreement and the
rights and obligations under this Agreement will be binding upon and inure to
the benefit of the parties to this Agreement and their respective successors and
assigns. Except to any successor, neither this Agreement nor any rights or
benefits under this Agreement may be assigned by either party to this Agreement,
without the prior written consent of the other party.
SECTION 8. ENTIRE AGREEMENT. This Agreement supersedes any and all
agreements or instruments, either oral or in writing, between the parties with
respect to the matters set forth herein and contains all of the covenants and
agreements between the parties with respect to such matters. This Agreement can
only be changed by the parties in writing, executed by the party against whom
enforcement of any modifications may be sought.
SECTION 9. GOVERNING LAW. This Agreement will be governed by and
construed in accordance with the substantive laws of the State of California
without regard to conflict of law provisions.
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SECTION 10. NOTICES. Any notice under this Agreement will be in writing
and will be deemed to have been duly given when delivered personally or three
(3) days after such notice is deposited in the United States mail, registered,
postage prepaid, and addressed, to New Visual at the address given for it on the
signature pages hereto and to Starburst at the address given for it on the
signature pages hereto.
[SIGNATURE PAGE TO FOLLOW]
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The parties hereto have executed the Agreement as of the date first
mentioned above.
NEW VISUAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Pres & CEO
Address: 0000 Xxxxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
STARBURST INNOVATIONS LLC
By: /s/ Xxxx Xxxxxxxxx
Name: Xxxx Xxxxxxxxx
Title: Managing Director
Address: 00 Xxx-xx-Xxxxx Xxxx
Xxxxx 0000, Xxxxxxxx, Xxxxxxx
XX 00
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