SETTLEMENT AGREEMENT
EXHIBIT
10.14
This
SETTLEMENT AGREEMENT (“Agreement”), is made and entered into as of October 20,
2003, among The Zondervan Corporation (“Zondervan”), Mattel, Inc. (“Mattel”),
TLC Multimedia, LLC (“TLC”), Riverdeep, Inc. (“Riverdeep”), and Xxxxxx.xxx, Inc.
(“Findex”) (collectively referred to as the “Parties”).
WHEREAS,
Zondervan filed a Complaint against Mattel, TLC and Findex in the United
States
District Court for the Western District of Michigan, styled The Zondervan
Corporation v. Findex. com, Inc., et al., Case
No.
1:0 1 -CV-654 (the “Lawsuit”).
WHEREAS,
the
Parties now seek to amicably settle the Lawsuit on the terms and conditions
set
forth below.
The
Parties agree as
follows:
1.
Without
admitting any liability, and in settlement of the Lawsuit, Mattel, TLC, and
Findex shall pay to Zondervan the total amount of $1,050,000.00 (the “Total
Settlement Amount”). Subject to the guaranty obligations set forth in paragraph
4 below, Mattel, TLC and/or their successor or designee shall pay $550,000
of
the Total Settlement Amount, and Findex shall pay $500,000 of the Total
Settlement Amount.
2.
The
payment of the Principal Total Settlement Amount shall be made according
to the
following installment schedule, with interest calculated and payable as set
forth in paragraph 3 below:
|
November
15, 2003:
|
$150,000 paid by TLC and/or Mattel or | ||
| Riverdeep on behalf of TLC and/or Mattel | |||
| $150,000 paid by or on behalf of Findex | |||
|
January
30,
2004:
|
$150,000 paid by TLC and/or Mattel or | ||
| Riverdeep on behalf of TLC and/or Mattel | |||
| $150,000 paid by or on behalf of Findex | |||
|
April
30, 2004:
|
$150,000 paid by TLC and/or Mattel or | ||
| Riverdeep. on behalf of TLC and/or Mattel | |||
| $100,000 paid by or on behalf of Findex | |||
|
July
30, 2004:
|
$100,000 paid by TLC and/or Mattel or | ||
| Riverdeep on behalf of TLC and/or Mattel | |||
| $100,000 paid by or on behalf of Findex |
The
attached Schedule A calculates, for illustration purposes, interest due with
each installment if payments are made in a timely fashion. Payments made
later
than the dates set forth must include additional interest calculated under
paragraph 3.
3.
Interest
shall accrue on the unpaid balance of the Total Settlement mount at a rate
of 5%
simple interest annually from October 20, 2003. The interest shall be payable
on
each installment as set forth in Paragraph 2 on the balance of the unpaid
obligation of each of Mattel, TLC and/or their successor or designee and
Findex
as set forth in Paragraph 1.
4.
Each of
TLC and Mattel, jointly and severally, irrevocably and unconditionally
guarantees, without setoff, counterclaim or deduction, the payment obligations
and liabilities of Findex to Zondervan under this Agreement in an amount
that
shall not, individually or in the aggregate, exceed $125,000. Payment of
any
amount shall be due 15 days after receipt of notice of Findex's default and
failure to cure by counsel for TLC and Mattel, but in no event earlier than
January 31, 2004. Such notice of Findex’s default and failure to cure shall be
sent by Zondervan to: Xxxxxxx X. Xxxxxx, Assistant General Counsel, Riverdeep,
Inc., 000 Xxxxxxx Xxxxxxxxx, Xxxxxx, XX 00000. Each of TLC and Mattel and/or
its
successor or designee shall be entitled to indemnification from Findex in
an
amount not to exceed $125,000 in the event that either is (or both are) required
to make any payments under this Paragraph 4.
5.
It is
acknowledged by each of the Parties that, contemporaneously with the execution
and delivery of this Agreement, Findex shall have executed and delivered
a
consent judgment (the “Consent Judgment”) in the form attached as Exhibit B in
favor of Zondervan. Zondervan shall be entitled to file the Consent Judgment
in
the federal court and have it entered by such court if payments by Findex
required pursuant to Paragraph 2 above are not timely made, subject to the
notice and cure provision contained in Paragraph 6.
6.
Upon
failure to Zondervan to receive payment from Findex as required under paragraph
2 (either as to timing or amount), Zondervan shall provide written notice
to
Findex’s counsel: Xxxxxx Xxxxxxx & Xxxxxx LLP, Attn: Xxxxxxx X. Xxxxxx,
Esq., 000 Xxxx Xxxxxx Xxxxx, 00 0x Xxxxx, Xxx Xxxx, Xxx Xxxx 100 16. Upon
such
notice, Findex shall cure said default within five (5) business days of actual
receipt of said notice to cure before any action may be taken against Findex
hereunder.
7.
To secure
the payment of all sums due under this Agreement, and also contemporaneously
with the execution and delivery of this Agreement, Findex shall execute and
deliver the following:
(A)
To Zondervan, a security agreement in the form attached to this Agreement
as
Exhibit C pursuant to which it grants Zondervan a security interest (the
“Senior
Security Interest”) in certain assets (the “Secured Assets”) of Findex;
and
(B)
To TLC, Mattel and Riverdeep, a second security agreement in the form attached
to this Agreement as Exhibit D pursuant to which it grants to TLC and Mattel
a
second security interest in the Secured Assets, subordinate only to the Senior
Security Interest.
8.
TLC,
Mattel and Riverdeep hereby acknowledge that, except as provided pursuant
to
paragraph 7(B) above, they have no rights in or to the any of the Secured
Assets, and hereby covenant to refrain from asserting at any time any such
rights, or make any claim arising out of such rights, against
Findex.
9.
Upon
satisfaction of each of Findex's and TLC / Mattel’s respective payment
obligations under this Agreement, each such party and Riverdeep, Inc. shall
be
entitled to a full release in relation to such amounts owed, in the forms
attached to this Agreement as Exhibit E.
10.
After
satisfaction of Findex’s obligations under this Agreement, including full
payment of all amounts required by Paragraph 2, TLC, Mattel and Riverdeep,
and
their respective successors and assigns, hereby covenant in perpetuity to
refrain from asserting any rights or making any claims relating to the Licensed
Media, Programs, or Trademarks defined in and licensed to Findex in the Software
License Agreement dated June 30, 1999 between Xxxxxx.xxx and Xxxxxxx Technology,
Inc.
11.
Following
execution of this Agreement by all Parties, the Parties shall direct their
counsel to execute a stipulation that (i) dismisses the Lawsuit as to TLC
and
Mattel with prejudice, and (ii) dismisses the Lawsuit as to Findex without
prejudice to Zondervan’s right to file the Consent Judgment upon default in
payments as described in paragraph 5 above. Each Party shall bear its own
costs
in relation thereto.
12.
The
Parties acknowledge that they have each consulted with counsel regarding
this
Agreement, and have executed this Agreement of their own free will and without
duress or coercion. Each party warrants that this Agreement is executed without
reliance upon any statement or representation of fact or opinion by any other
Party.
13. This
Agreement may be executed in counterparts, with signatures appeafing on
different copies.
14. This
Agreement shall be construed under and governed by the laws of the state
of
Michigan.
The
parties have
executed this Settlement Agreement as of the date first written
above.
|
MATTEL,
INC.
|
|||
| By: /s/ Xxxx Xxxxxx | |||
| Its: V.P. Asst. General Counsel |
|
TLC
MULTIMEDIA, LLC
|
|||
| By: /s/ Xxxxxxx Xxxxx | |||
| Its: CFO |
|
XXXXXX.XXX,
INC.
|
|||
| By: /s/ Xxxxxx Xxxxxx | |||
| Its: CEO |
|
THE
ZONDERVAN CORPORATION
|
|||
| By: /s/ Xxxxx Xxxxxxxxx | |||
| Its: Executive V.P. & CFO |
|
RIVERDEEP,
INC. (as to Paragraphs 6, 7, 8)
|
|||
| By: /s/ Xxxxxxx Xxxxx | |||
| Its: CFO |
