SETTLEMENT AGREEMENT
This SETTLEMENT AGREEMENT ("Agreement") is entered into and is
effective as of this 2nd day of June 1999 by and between XxxxXxxx.xxx, Inc.
(fka, Alternative Entertainment, Inc.), a Delaware corporation with principal
offices at 0000 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xx Xxxxx, Xxxxxxxxxx 00000 (the
"Debtor") and Xxxxx of Los Angeles, Inc. with principal offices at 0000 Xxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxxx Xxxxx, Xxxxxxxxxx 000000 (the "Creditor")
WHEREAS:
A. Debtor purchased certain printing services from Creditor for which
Debtor is indebted to Creditor in the amount of Forty Eight Thousand
One Hundred Sixty-Six Dollars and Seventy-Two Cents ($48,166.72) (the
"Settlement Amount").
B. Both Debtor and Creditor acknowledge and agree that this Agreement
is an accord and satisfaction of certain contested matters and that
neither this Agreement nor the actions to be taken by any party or
their agents under this Agreement shall be construed as an admission
of liability.
C. Subject to the terms and conditions of this Agreement, Debtor and
Creditor are willing to fully and final settle all outstanding claims
that each party has or may have against the other party.
NOW THEREFORE THE PARTIES AGREE AS FOLLOWS:
1. PAYMENT OF SETTLEMENT AMOUNT. In consideration of Creditor's (A) execution of
this Agreement; and (B) delivery of an executed copy of this Agreement to the
Law Offices of Xxxxxxx X. Xxx at 0000 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xx Xxxxx,
Xxxxxxxxxx 00000; together with other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, Debtor agrees that it
shall make the following payments to Creditor in payment of the Settlement
Amount: (a) on or before June 10, 1999 Debtor shall remit a check, payable to
Creditor in the amount of Six Thousand Dollars ($6,000); (if) on or before the
10th day of the month for an additional five (5) months thereafter, Debtor
shall remit a check payable to Creditor in the amount of Six Thousand Dollars
($6,000); and (iii) on or before November 30, 1999 Debtor shall remit a check
payable to Creditor in the amount of Twelve Thousand One Hundred Sixty-Six
Dollars and Seventy-Two Cents ($12,166.72). Both parties agree that upon
Creditor's receipt of all said payments, Debtor shall have paid all amounts due
Creditor in payment of the Settlement Amount and that Creditor shall not be
entitled to the payment of any interest thereon. In the event that Debtor fails
to pay, within ten (10) days, any amounts due Creditor under this Agreement,
Debtor shall be in default of this Agreement and Creditor shall be entitled to
receive, in addition to any other amounts due hereunder, a late fee equal to
five percent (5%) of the amount of any said payment (the "Late Fee").
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2. RELEASE OF CLAIMS. Subject to Debtor's and Creditor's performance of their
respective obligations as recited in Section 1.00 of this Agreement, the
parties on their own behalf and on behalf of their successors in interest,
and assigns, hereby fully and forever release, acquit and discharge all other
parties to this Agreement, and their respective heirs, successors in
interest, officers, directors, shareholders, agents, employees, assigns,
subsidiaries, parent corporations, sister corporations, affiliates, trustees,
trustors, beneficiaries, attorneys, and each of them, of and from any and all
liabilities, claims, demands, actions, causes of action and rights
(contingent, accrued or otherwise) which said releasing parties may now have
against any or all parties released.
3. MUTUAL WAIVER OF STATUTORY RIGHTS. Subject to Debtor's and Creditor's
performance of their respective obligations as recited in Section 1.00 of this
Agreement, each of the parties to this Agreement hereby waives all rights which
may exist under Section 1542 of the Civil Code of the State of California, which
provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO
CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OF OR EXPECT TO EXIST IN HIS FAVOR
AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
4. INDEMNIFICATION AGAINST RELEASED CLAIMS. Each of the parties to this
Agreement shall indemnify each person and entity released and discharged, and
their respective heirs, successors in interest, officers, directors,
shareholders, agents, employees, assigns, subsidiaries, parent corporations,
sister corporations, affiliates, trustees, trustors, beneficiaries, attorneys
and each of them and shall hold them harmless from and against any and all loss,
expense and/or liability arising directly or indirectly out of the enforcement
or attempted enforcement by anyone against any such indemnitee of any of the
same liabilities, claims, demands, actions, causes of action and rights released
and discharged by each such indemnitor, respectively, including, but not limited
to, rescission of securities, grant of registration rights or any other
securities laws violation.
5. INTERPRETATION OF RELEASE. Notwithstanding anything herein set forth to the
contrary, no provision of this Agreement shall constitute or be construed as a
release or discharge of any obligations, claims or causes of action hereafter
arising out of the breach of any of the terms or provisions of this Agreement.
6. MISCELLANEOUS.
6.1 FURTHER ASSURANCE. Each of the parties shall hereafter execute all
documents and do all acts reasonably necessary to effect the provisions of
this Agreement.
6.2 SUCCESSORS. The provisions of this Agreement shall be deemed to
obligate, extend to and inure to the benefit of the successors, assigns,
transferees, grantees, and indemnitees of each of the parties to this
Agreement.
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6.3 INDEPENDENT COUNSEL. Each of the parties to this Agreement acknowledges
and agrees that it has been represented by independent counsel of its own
choice throughout all negotiations which preceded the execution of this
Agreement and the transactions referred to in this Agreement, and each has
executed this Agreement with the consent and upon the advice of said
independent counsel. Each party represents that he or it fully understands
the provisions of this Agreement, has consulted with counsel concerning its
terms and executes this Agreement of his or its own free choice without
reference to any representations, promises or expectations not set forth
herein.
6.4 INTEGRATION. This Agreement, after full execution, acknowledgment and
delivery, memorializes and constitutes the entire agreement and
understanding between the parties and supersedes and replaces all prior
negotiations and agreements of the parties. Each of the parties to this
Agreement acknowledges that no other party, nor any agent or attorney of
any other party has made any promises, representations, or warranty
whatsoever, express or implied, which is not expressly contained in this
Agreement; and each party further acknowledges that he or it has not
executed this Agreement in reliance upon any belief as to any fact not
expressly recited hereinabove.
6.5 ATTORNEYS FEES. In the event of a dispute between the parties
concerning the enforcement or interpretation of this Agreement, the
prevailing party in such dispute, whether by legal proceedings or
otherwise, shall be reimbursed immediately for the reasonably incurred
attorneys' fees and other costs and expenses by the other parties to the
dispute.
6.6 INTERPRETATION. Wherever the context so requires: the singular number
shall include the plural; the plural shall include the singular; and the
masculine gender shall include the feminine and neuter genders.
6.7 CAPTIONS. The captions by which the sections and subsections of this
Agreement are identified are for convenience only, and shall have no effect
whatsoever upon its interpretation.
6.8 SEVERANCE. If any provision of this Agreement is held to be illegal or
invalid by a court of competent jurisdiction, such provision shall be
deemed to be severed and deleted; and neither such provision, nor its
severance and deletion, shall affect the validity of the remaining
provisions.
6.09 COUNTERPARTS. This Agreement may be executed in any number of
counterparts.
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6.10 DISCLAIMER OF LIABILITY. The parties to this Agreement hereby
expressly recognize and agree that the terms and conditions of this
Agreement constitute an accord and satisfaction of contested matters and
neither the offer nor the acceptance of the terms and conditions hereof
represent an admission of liability or responsibility on the part of any
party, each party expressly disclaiming any such liability.
6.11 EXPENSES ASSOCIATED WITH THIS AGREEMENT. Each of the parties hereto
agrees to bear its own costs, attorneys fees and related expenses
associated with this Agreement.
6.12 ARBITRATION. Any dispute or claim arising to or in any way related to
this Agreement shall be settled by arbitration in San Diego, California.
All arbitration shall be conducted in accordance with the rules and
regulations of the American Arbitration Association ("AAA"). AAA shall
designate an arbitrator from an approved list of arbitrators following
both parties' review and deletion of those arbitrators on the approved list
having a conflict of interest with either party. Each party shall pay its
own expenses associated with such arbitration (except as set forth in
Section 6.5 Above). A demand for arbitration shall be made within a
reasonable time after the claim, dispute or other matter has arisen and in
no event shall such demand be made after the date when institution of legal
or equitable proceedings based on such claim, dispute or other matter in
question would be barred by the applicable statutes of limitations. The
decision of the arbitrators shall be rendered within 60 days of submission
of any claim or dispute, shall be in writing and mailed to all the parties
included in the arbitration. the decision of the arbitrator shall be
binding upon the parties and judgement in accordance with that decision may
be entered in any court having jurisdiction thereof.
6.13 POWER TO BIND. A responsible officer of Creditor has read and
understands the contents of this Agreement and is empowered and duly
authorized on behalf of Creditor to execute it.
6.14 CONFIDENTIALITY. The parties hereto agree that the terms of this
Agreement and all documents constituting parts of this transaction shall be
kept strictly confidential except to the extent necessary to protect the
rights of the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth above.
FOR DEBTOR: FOR CREDITOR:
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx Xxxxxx
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Xxxxx X. Xxxxx Xxxxx Xxxxxx, V.P.
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