EXHIBIT 10.15
SETTLEMENT AGREEMENT
AND MUTUAL GENERAL RELEASE
This Settlement Agreement and Mutual General Release ("Agreement") is
entered into effective this _____ day of April 1996, by and between Brilliant
Interactive Ideas Pty Ltd ("BII"), Xxx Xxxxx ("Xxxxx"), Ocean of America, Inc.
("Ocean"), and Ocean Software, Ltd. and Ocean International, Ltd. (jointly
"Guarantors").
RECITALS
A. On January 5, 1996, BII filed an action against Musci and Ocean in the
Superior Court of the State of California in and for the County of Santa Xxxxx
entitled Brilliant Interactive Ideas Pty Ltd v. Ocean of America, Inc. Xxx Xxxxx
and Does 1 through 20, inclusive, No. CV755008 ("the Lawsuit").
B. The Lawsuit arose from a contract described in and attached as Exhibit
A ("the Distribution Agreement"), and relates to the promotion and marketing of
certain CD-ROMs described in that complaint ("the Products").
C. On January 11, 1996, BII, Ocean and Guarantors entered into a
Settlement Agreement and Mutual General Release ("January Agreement"), settling
the Lawsuit on terms set forth in the January Agreement. One of the terms
provided for entry of a Stipulated Judgment ("Stipulated Judgment") under
conditions described in the January Agreement.
D. On February 29, 1996, BII obtained entry of the Stipulated Judgment by
the Superior Court. Pursuant to the Stipulated Judgment, a writ of execution
was issued by the Superior Court and levied upon certain assets of Ocean ("the
Levy").
-1-
E. The parties to this Agreement desire to settle all their claims
against each other, whether previously asserted, pending, presently outstanding,
or which they may have or claim to have.
Now, therefore, in consideration of the above and the mutual covenants
and agreements herein expressed, the parties agree as follows:
1. Releases and Dismissals.
-----------------------
1.1 Mutual Release and Discharge.
----------------------------
The parties, on behalf of themselves and each of their officers,
directors, agents, attorneys, representatives, employees, parents,
subsidiaries, affiliates, assignees, assignors, insurers, successors,
and predecessors, hereby forever release and discharge each other and
their present and former officers, directors, agents, attorneys,
representatives, employees, parents, subsidiaries, affiliates,
assignees, assignors, insurers, successors, and predecessors, from any
and all present or past claims, demands, losses, liabilities,
obligations, or causes of action, including, without restricting the
generality of the foregoing, claims for costs or attorneys' fees,
known or unknown, relating to or arising out of the Lawsuit, entry of
the Stipulated Judgment, or the Levy. Said released and discharged
claims, demands, liabilities, obligations, or causes of action include
those claims or causes of action either stated or which could have
been stated in the Lawsuit.
-2-
1.2 General Waiver of All Past and Present Claims.
---------------------------------------------
Except for the duties and obligations set forth herein, the parties
hereby expressly waive and assume the risk of any and all claims,
demands, obligations, or causes of action of any nature whatsoever
which exist against or between themselves, including those claims,
demands, obligations, or causes of action which are presently not
known or suspected to exist, whether through ignorance, oversight,
error, negligence, or otherwise, and excluding those which arise under
the newly reaffirmed Distribution Agreement referenced in Paragraph
2.7 of this Agreement. The parties intend that this Agreement be a
complete and final accord and satisfaction and general mutual release
by and between them of all liabilities, disputes, claims, and causes
of action, known or unknown, suspected or unsuspected, which each
party holds or may hold against the other including those relating to
or arising out of the Lawsuit, the entry of the Stipulated Judgment,
or the Levy but excluding those newly arising under the reaffirmed
Distribution Agreement. In furtherance of this intention, the parties
acknowledge and present that each is familiar with Section 1542 of the
Civil Code of the State of California, which provides:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN TO HIM, MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
-3-
Each party represents and warrants that it has been advised by counsel
of the content and import of Civil Code Section 1542 and voluntarily
waives and relinquishes any right or benefit conferred by Section
1542, or any similar provision of the statutory or nonstatutory law of
California or of any other jurisdiction, to the full extent that such
rights or benefits may lawfully be waived. In connection with such
waiver and relinquishment, each party acknowledges that it or its
attorneys, employees, agents, officers, or directors may hereafter
discover claims or facts in addition to or different from those now
known or believed to exist, but that it is each party's intention to
fully, finally, and forever settle and release each other from all
obligations, claims, liabilities, causes of action, demands, dispute,
and differences, known or unknown, suspected or unsuspected, including
those relating to or arising out of the Lawsuit, but excluding those
newly arising under the reaffirmed Distribution Agreement.
2. Consideration.
-------------
2.1 Upon the execution of this Agreement, Ocean shall deliver by wire
transfer to BII the sum of CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
2.2 Upon execution of this Agreement and receipt of Ocean's payment of US
CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION, BII shall direct that:
2.2.1 The Levy be released;
-4-
2.2.2 Any funds seized under the Levy be returned to Ocean; and
2.2.3 The Stipulated Judgment be withdrawn and vacated.
2.3 Upon execution of this Agreement, BII shall deliver to Ocean new gold
masters of the CD-ROMs ("New Gold Masters") provided for under the
Distribution Agreement. BII shall use commercially reasonable efforts
to rectify any software incompatibilities or bugs, including those
identified by Ocean to BII in correspondence dated March 13, 1996,
copies of which are attached as Exhibit C. Ocean shall provide to BII
such further details and identification of any claimed software
incompatibilities or bugs as may be requested by BII. Upon receipt of
the New Gold Masters, Ocean shall deliver by wire transfer to BII the
sum of US CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION.
2.4 Upon acceptance of the New Gold Masters by Ocean, Ocean shall deliver
by wire transfer to BII the further sum of US CONFIDENTIAL INFORMATION
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. "Acceptance" shall be determined as follows:
2.4.1 Ocean shall have 10 days following receipt of the New Gold
Masters in which to test the New Gold Masters to determine
whether there are any further software incompatibilities or
bugs and to advise BII of any such software incompatibilities
or bugs. Should Ocean fail to advise BII of any such software
incompatibilities or bugs within that time, the New Gold
Masters shall be deemed accepted.
-5-
2.4.2 Should Ocean, in accordance with the provisions of Paragraph
2.4.1. advise BII of any software incompatibilities or bugs,
BII shall make commercially reasonable efforts to correct those
incompatibilities, and shall deliver revised New Gold Masters
to Ocean containing those corrections. Upon deliver to Ocean of
any revised New Gold Masters in accordance with the provisions
of this paragraph, Ocean shall be subject to the same
obligation to test and accept those revised New Gold Masters as
provided for the New Gold Masters under the provisions of
Paragraph 2.4.1
2.4.3 The provisions of Paragraphs 2.4.1 and 2.4.2 shall apply to all
revised New Gold Masters submitted by BII to Ocean at any time.
2.4.4 The New Gold Masters shall be deemed to have been accepted by
Ocean in the event that Ocean has shipped more than
CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION units of the Products, as
that term is defined in the Distribution Agreement, to any
purchasers or consignees.
2.4.5 The definition of "Acceptance" under this Agreement is solely
for the purpose of triggering payment obligations hereunder and
for commencing the two year term set forth in paragraph 20 of
the Distribution Agreement, and shall not constitute acceptance
for all purposes. The obligations under the Distribution
Agreement, including, but not limited to those enumerated
-6-
in paragraphs 1, 2(a) and 2(b) shall not be limited by any
deemed acceptance under the Agreement of any New Gold Masters
or Revised Gold Masters.
2.5 Within 30 days following the acceptance by Ocean of the New Gold
Masters pursuant to Paragraph 2.4, Ocean shall deliver by wire
transfer to BII the further sum of US CONFIDENTIAL INFORMATION OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
2.6 Upon the receipt by BII of all of the sums described in Paragraphs
2.1, 2.3, 2.4 and 2.5, BII shall forthwith file with the Superior
Court of the State of California for the County of Santa Xxxxx a
dismissal with prejudice of all claims asserted in the Lawsuit as to
Ocean. Upon execution of this Agreement, BII shall file a dismissal
of the Lawsuit with Prejudice as to Ray Music.
2.7 The parties hereby reaffirm the Distribution Agreement and all of the
obligations thereunder, except those provided in Paragraph 6 of the
Distribution Agreement and except as inconsistent with this Agreement.
The Distribution Agreement is hereby incorporated in this Agreement as
though fully set forth and as though executed contemporaneously with
the execution of this Agreement. Ocean and BII shall take all actions
and shall be subject to all obligations required under the terms of
the Distribution Agreement, including but not limited to the
obligations to release and promote the Products as set forth in
Paragraphs 7 and 9 of the Distribution Agreement, except that
Paragraph 7 of the Distribution Agreement shall be deemed to be
amended so that the Retail Marketing Date specified in said
-0-
Xxxxxxxxx 7 shall be 30 days following the acceptance of the New Gold
Masters in accordance with Paragraph 2.4 of this Agreement. Paragraph
20 of the Distribution Agreement shall also be deemed amended to
provide that the term of the Distribution Agreement shall be for a
period of CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION CONFIDENTIAL INFORMATION
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION from the acceptance of the New
Gold Masters in accordance with Paragraph 2.4 of this Agreement.
BII's exclusive remedy for breaches of any obligation set forth in
this Paragraph 2.7 shall be in accordance with the default provisions
of Paragraph 4.
3. Guaranty. Guarantors hereby guaranty the performance by Ocean of all
--------
obligations undertaken in this Agreement. Upon the default of Ocean in the
performance of any obligation undertaken in this Agreement, Guarantors will
be liable in damages to BII.
4. Default.
-------
4.1 Default. The failure of Ocean to pay when due any payment of money as
-------
provided in Paragraph 2 of this Agreement upon the date due, or to
perform any other obligation required by this Agreement, shall
constitute a default.
4.2 Upon a default, BII shall give to Ocean not less than 14 days notice
of BII's intent to enter the attached stipulated judgment. The notice
shall be given by
-8-
facsimile transmission to 000-000-0000 (or such other facsimile number
as shall be provided by Ocean to BII in writing) or by written notice
delivered to Ocean's place of business set forth in this Agreement.
Should Ocean fail to cure the default within 14 days of such notice,
BII shall be entitled to file a motion for entry of the stipulated
judgment against Ocean and Guarantors in the form attached as
Exhibit B.
4.3 The parties hereby agree that they shall be entitled to present
evidence at the hearing on the motion described in Paragraph 4.2 by
declaration in lieu of live testimony. The notice and service of all
pleadings regarding such motion may be given via facsimile. Such
motion will be limited to issues of (a) whether Ocean was actually in
default at the time notice of default was given; (b) whether Ocean had
any excuse for non-performance at the time notice of default was
given; and (c) whether the amount of the claimed default was the
amount owing under the Agreement at the time notice of default was
given, taking into account any right to offset.
5. Miscellaneous.
-------------
5.1 Successors and Assigns. All the terms and provisions of this
----------------------
Agreement shall be binding upon and inure to the benefit of and be
enforceable by the respective successors and assigns of the parties
hereto, whether so expressed or not.
5.2 Settlement Not an Admission. It is understood and agreed that this
---------------------------
Agreement is a compromise settlement of disputed claims, and that
nothing herein shall be
-9-
construed as an admission of liability by any of the parties hereto,
except as otherwise set forth herein.
5.3 Governing Law. This Agreement and the transactions contemplated
-------------
hereby are to be governed by, and interpreted under, California law.
In the event of any dispute regarding interpretation or performance of
this Agreement, venue shall be in the Superior Court of the State of
California for the County of Santa Xxxxx.
5.4 Consent to Jurisdiction. The parties hereto consent to personal
-----------------------
jurisdiction in the State of California.
5.5 Attorneys' Fees. In the event of any dispute regarding the
---------------
interpretation or performance of this Agreement requiring recourse to
any court, the prevailing party will be entitled to recover its
reasonable attorneys' fees and costs.
5.6 Payment of Expenses. Except as specifically provided for herein, each
-------------------
party shall bear its own expenses, including without limitation,
attorneys' fees.
5.7 Entire Agreement. This Agreement constitutes the entire agreement
----------------
between parties hereto with respect to the subject matter hereof, and
all prior oral and written communications, representations, and
agreements are merged herein. No amendment, alteration, or
modification of this Agreement shall be valid unless in each instance
such amendment, alteration, or modification is expressed in a written
instrument duly executed by the party or parties making such
amendment, alteration, or modification.
5.8 Counterparts. This Agreement may be executed simultaneously in any
------------
number of duplicate copies, each of which shall be deemed an original,
but all of which
-10-
together shall constitute one and the same instrument. Facsimile
signatures shall be deemed to constitute original signatures.
5.9 Headings. The headings in this Agreement are for convenience of
--------
reference only and do not restrict or modify any term or provision
hereof.
5.10 Waiver. The failure of any party to insist, in one or more instances,
------
on performance of any term or condition of this Agreement shall not be
construed as a waiver or relinquishment of any right granted hereunder
or of the future performance of any such term, covenants, or
condition, but the obligations of the parties with respect thereto
shall continue in full force and effect.
5.11 No Third Party Beneficiaries. The parties hereto do not intend, and
----------------------------
nothing in this Agreement shall be deemed, to give any person other
than the parties hereto any rights hereunder.
5.12 Warranty of Authority. Each of the persons executing this Agreement
---------------------
hereby warrants that he or she has been duly authorized to execute
this Agreement on behalf of the party he or she represents.
5.13 Severability. If any term or provision of this Agreement shall be
------------
held invalid or unenforceable to any extent, the remaining terms and
provisions of this Agreement shall not be affected thereby, and each
term and provision shall be valid and enforceable to the fullest
extent permitted by law.
5.14 Notices. Any notices required under this Agreement shall be delivered
-------
as provided in this Agreement to the following addresses or facsimile
numbers:
5.14.1 If to Ocean:
-00-
Xxxxx xx Xxxxxxx, Inc.
0000 Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile (000) 000-0000
5.14.2 If to BII:
Brilliant Interactive Ideas Pty Ltd
00 Xxx Xxxxx
Xxxxx, XXX 0000
Xxxxxxxxx
Facsimile 011 612 9977 4123
Wire transfers of funds to:
National Australia Bank
Branch No. 082352
00 Xxxxxx Xxxx
Xxxxx, XXX 0000
Xxxxxxxxx
5.14.3 If to Guarantors:
Ocean Software Limited
0 Xxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxx XX 0XX
Xxxxxxx
Facsimile 0011 44 161 834 0650
In witness whereof, the parties hereto have executed this Agreement in
counterparts as of the date first above written.
BRILLIANT INTERACTIVE IDEAS PTY LTD
By: /s/ Xxxx Xxxxxx
--------------------------
Xxxx Xxxxxx
Its President
-00-
XXXXX XX XXXXXXX, INC.
By: /s/ Xxx Xxxxx
--------------------------------
Xxx Xxxxx
Its President
___________________________________
Xxx Xxxxx, individually
OCEAN SOFTWARE, LTD.
By: /s/ Xxx Xxxxx
--------------------------------
Xxx Xxxxx
Its Director
OCEAN INTERNATIONAL, LTD.
By: /s/ Xxx Xxxxx
--------------------------------
Xxx Xxxxx
Its Director
-13-
SETTLEMENT AGREEMENT
AND MUTUAL GENERAL RELEASE
This Settlement Agreement and Mutual General Release ("Agreement") is
entered into effective this 11th day of January 1996, by and between Brilliant
Interactive Ideas Pty Ltd ("BII"), Xxx Xxxxx ("Musci"), Ocean of America, Inc.
("Ocean"), and Ocean Software, Ltd. and Ocean International, Ltd. (jointly
"Guarantors").
RECITALS
A. On January 5, 1996, BII filed an action against Musci and Ocean in the
Superior Court of the State of California in and for the County of Santa Xxxxx
entitled Brilliant Interactive Ideas Pty Ltd v. Ocean of America, Inc. Xxx Xxxxx
and Does 1 through 20, inclusive, No. CV755008 ("the Lawsuit").
B. On January 5, 1996, BII was granted by the Superior Court an Ex Parte
Right to attach Order upon which a Writ of Attachment as issued against the
assets of Ocean. The Writ of Attachment has been levied upon certain assets of
Ocean ("the Levy").
C. The Lawsuit arises from a contract described in and attached as
Exhibit A ("the Distribution Agreement"), and relates to the promotion and
marketing of certain CD-ROMs described in that complaint ("the Products").
D. The parties to this Agreement desire to settle all their claims
against each other, whether previously asserted, pending, presently outstanding,
or which they may have or claim to have.
-1-
Now, therefore, in consideration of the above and the mutual covenants
and agreements herein expressed, the parties agree as follows:
1. Releases and Dismissals.
-----------------------
1.1 Mutual Release and Discharge.
----------------------------
The parties, on behalf of themselves and each of their officers,
directors, agents, attorneys, representatives, employees, parents,
subsidiaries, affiliates, assignees, assignors, insurers, successors,
and predecessors, hereby forever release and discharge each other and
their present and former officers, directors, agents, attorneys,
representatives, employees, parents, subsidiaries, affiliates,
assignees, assignors, insurers, successors, and predecessors, from any
and all present or past claims, demands, losses, liabilities,
obligations, or causes of action, including, without restricting the
generality of the foregoing, claims for costs or attorneys' fees,
known or unknown, relating to or arising out of the Lawsuit. Said
released and discharged claims, demands, liabilities, obligations, or
causes of action consist of those claims or causes of action either
stated or which could have been stated in the Lawsuit.
1.2 General Waiver of All Past and Present Claims.
---------------------------------------------
Except for the duties and obligations set forth herein, the parties
hereby expressly waive and assume the risk of any and all claims,
demands, obligations, or causes of action of any nature whatsoever
which exist against or between themselves relating to or arising out
the Lawsuit, including those claims, demands, obligations, or causes
of action which are presently not known or suspected to
-2-
exist, whether through ignorance, oversight, error, negligence, or
otherwise. The parties intend that this Agreement be a complete and
final accord and satisfaction and general mutual release by and
between them of all liabilities, disputes, claims, and causes of
action, known or unknown, suspected or unsuspected, which each party
holds or may hold against the other relating to or arising out of the
Lawsuit. In furtherance of this intention, the parties acknowledge
and present that each is familiar with Section 1542 of the Civil Code
of the State of California, which provides:
"A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known to him, must have
materially affected his settlement with the debtor."
Each party represents and warrants that it has been advised by counsel
of the content and import of Civil Code Section 1542 and voluntarily
waives and relinquishes any right or benefit conferred by Section
1542, or any similar provision of the statutory or nonstatutory law of
California or of any other jurisdiction, to the full extent that such
rights or benefits may lawfully be waived. In connection with such
waiver and relinquishment, each party acknowledges that it or its
attorneys, employees, agents, officers, or directors may hereafter
discover claims or facts in addition to or different from those now
known or believed to exist, but that it is each party's intention to
fully, finally, and forever settle and release each other from all
obligations, claims, liabilities, causes of
-3-
action, demands, dispute, and differences, known or unknown, suspected
or unsuspected relating to or arising out of the Lawsuit.
2. Consideration.
-------------
2.1 Upon the execution of this Agreement, Ocean shall deliver by wire
transfer to BII the sum of US $325,000. Upon execution of this
Agreement and receipt of Ocean's payment of US $325,000, BII shall
direct that the Levy be released.
2.2 On or before the thirtieth day following the execution of this
Agreement, Ocean shall deliver to BII the sum of US $166,667.
2.3 On or before the sixtieth day following the execution of this
Agreement, Ocean shall deliver to BII the sum of US $166,667.
2.4 On or before the ninetieth day following the execution of this
Agreement, Ocean shall deliver to BII the sum of US $166,667.
-4-
2.5 Upon the receipt by BII of all of the sums described in Paragraphs
2.1, 2.2, 2.3, and 2.4, BII shall forthwith file with the Superior
Court of the State of California for the County of Santa Xxxxx a
dismissal with prejudice of all claims asserted in the Lawsuit.
2.6 The parties hereby reaffirm the Distribution Agreement and all of the
obligations thereunder, except those provided in Paragraph 6 of the
Distribution Agreement. The Distribution Agreement is hereby
incorporated in this Agreement as though fully set forth and as though
executed contemporaneously with the execution of this Agreement.
Ocean shall take all actions and shall be subject to all obligations
required under the terms of the Distribution Agreement, including but
not limited to the obligations to release and promote the Products as
set forth in Paragraphs 7 and 9 of the Distribution Agreement, except
that Paragraph 7 of the Distribution Agreement shall be deemed to be
amended so that the Retail Marketing Date specified in said Paragraph
7 shall be 30 days following the execution of this Agreement.
3. Guaranty. Guarantors hereby guaranty the performance by Ocean of all
--------
obligations undertaken in this Agreement. Upon the default of Ocean in the
performance of any obligation undertaken in this Agreement, Guarantors will
be liable in damages to BII without demand or notice of said default.
-5-
4. Default.
-------
4.1 The failure of Ocean to pay when due any payment of money as provided
in Paragraph 2 of this Agreement upon the date due, or to perform any
other obligation required by this Agreement, shall constitute a
default.
4.2 Upon a default, BII shall be entitled to enter a stipulated judgment,
in the amount then remaining unpaid, against Ocean and Guarantors in
the form attached as Exhibit B.
5. Miscellaneous.
-------------
5.1 Successors and Assigns. All the terms and provisions of this
----------------------
Agreement shall be binding upon and inure to the benefit of and be
enforceable by the respective successors and assigns of the parties
hereto, whether so expressed or not.
5.2 Settlement Not an Admission. It is understood and agreed that this
---------------------------
Agreement is a compromise settlement of disputed claims, and that
nothing herein shall be construed as an admission of liability by any
of the parties hereto, except as otherwise set forth herein.
5.3 Governing Law. This Agreement and the transactions contemplated
-------------
hereby are to be governed by, and interpreted under, California law.
In the event of any dispute regarding interpretation or performance of
this Agreement, venue shall be in the Superior Court of the State of
California for the County of Santa Xxxxx.
5.4 Consent to Jurisdiction. The parties hereto consent to personal
-----------------------
jurisdiction in the State of California.
-6-
5.5 Attorneys' Fees. In the event of any dispute regarding the
---------------
interpretation or performance of this Agreement requiring recours to
any court, the prevailing party will be entitled to recover its
reasonable attorneys' fees and costs.
5.6 Payment of Expenses. Except as specifically provided for herein, each
-------------------
party shall bear its own expenses, including without limitation,
attorneys' fees, whether or not the transactions contemplated hereby
are consummated.
5.7 Entire Agreement. This Agreement constitutes the entire agreement
----------------
between parties hereto with respect to the subject matter hereof, and
all prior oral and written communications, representations, and
agreements are merged herein. No amendment, alteration, or
modification of this Agreement shall be valid unless in each instance
such amendment, alteration, or modification is expressed in a written
instrument duly executed by the party or parties making such
amendment, alteration, or modification.
5.8 Counterparts. This Agreement may be executed simultaneously in any
------------
number of duplicate copies, each of which shall be deemed an original,
but all of which together shall constitute one and the same
instrument.
5.9 Headings. The headings in this Agreement are for convenience of
--------
reference only and do not restrict or modify any term or provision
hereof.
5.10 Waiver. The failure of any party to insist, in one or more instances,
------
on performance of any term or condition of this Agreement shall not be
construed as a waiver or relinquishment of any right granted hereunder
or of the future
-7-
performance of any such term, covenants, or condition, but the
obligations of the parties with respect thereto shall continue in full
force and effect.
5.11 No Third Party Beneficiaries. The parties hereto do not intend, and
----------------------------
nothing in this Agreement shall be deemed, to give any person other
than the parties hereto any rights hereunder.
5.12 Warranty of Authority. Each of the persons executing this Agreement
---------------------
hereby warrants that he or she has been duly authorized to execute
this Agreement on behalf of the party he or she represents.
5.13 Severability. If any term or provision of this Agreement shall be
------------
held invalid or unenforceable to any extent, the remaining terms and
provisions of this Agreement shall not be affected thereby, and each
term and provision shall be valid and enforceable to the fullest
extent permitted by law.
In witness whereof, the parties hereto have executed this Agreement in
counterparts as of the date first above written.
BRILLIANT INTERACTIVE IDEAS PTY LTD
By: /s/ Xxxx Xxxxxx
-----------------------------------
Xxxx Xxxxxx
Its President
-0-
XXXXX XX XXXXXXX, INC.
By: /s/ Xxx Xxxxx
-----------------------------------
Xxx Xxxxx
Its Board Director
_____________________________________
Xxx Xxxxx, individually
OCEAN SOFTWARE, LTD.
By: /s/ Xxx Xxxxx
-----------------------------------
Its Director
OCEAN INTERNATIONAL, LTD.
By: /s/ Xxx Xxxxx
-----------------------------------
Its Director
-9-
XXXXXXX X. XXXXX, SBN 68050
LAW OFFICES OF XXXXXXX X. XXXXX
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Tel (000) 000-0000
Fax (000) 000-0000
Attorneys for Plaintiff BRILLIANT
INTERACTIVE IDEAS PTY. LTD.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA XXXXX
)
BRILLIANT INTERACTIVE IDEAS PTY. LTD. ) Xxxx Xx. XX000000
)
Plaintiff, )
) STIPULATION FOR ENTRY OF
vs. ) JUDGMENT AND JUDGMENT
)
OCEAN OF AMERICA, INC., XXX XXXXX, )
and Does 1 through 20, inclusive, )
)
Defendants. )
____________________________________ )
The parties hereto stipulate for entry of judgment against them,
jointly and severally, as follows:
1. For compensatory damages in the amount of $_________________;
2. For prejudgment interest in the amount of $_________________,
according to the attached declaration;
-1-
3. For return to plaintiff of the CD-ROMs entitled "Plates Are People
Too," "The Gumball Shop," "Play Xxxx Xxxxxxx," "Craft Pax Activity Pack," "Magic
Tricks," "Dream Machines and Their Designers," and "101 Ways to Save Our
Planet;" and
4. For costs in the amount of $______________, according to the
attachment statement of costs.
Dated: Ocean of America, Inc.
By: /s/ Xxx Xxxxx
----------------------
Xxx Xxxxx
Board Director
Ocean Software, Ltd.
By: /s/ Xxx Xxxxx
----------------------
Its Director
-0-
-0-
Xxxxx Xxxxxxxxxxxxx, Ltd.
By: /s/ Xxx Xxxxx
----------------------
Its Director
JUDGMENT
Judgment is hereby entered in accordance with the foregoing
stipulation.
Dated:
________________________________________
Judge of the Superior Court
-4-
XXXXXXX X. XXXXX, SBN 68050
LAW OFFICES OF XXXXXXX X. XXXXX
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Tel (000) 000-0000
Fax (000) 000-0000
Attorneys for Plaintiff BRILLIANT
INTERACTIVE IDEAS PTY. LTD.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA XXXXX
)
BRILLIANT INTERACTIVE IDEAS PTY. LTD. )
) Xxxx Xx. XX000000
)
Plaintiff, ) DECLARATION OF XXXX XXXXXX
) RE STIPULATION FOR ENTRY OF
) JUDGMENT AND JUDGMENT
vs. )
)
OCEAN OF AMERICA, INC., RAY )
MUSCI, and Does 1 through 20, )
inclusive, )
)
Defendant. )
____________________________________ )
I, Xxxx Xxxxxx declare:
1. I am the managing director of Brilliant Interactive Ideas Pty. Ltd.
("BII"), the plaintiff in this action.
2. On January 5, 1996, BII filed this action.
3. On January 11, 1996, BII and the defendants entered into a
settlement agreement, a true copy of which is attached as Exhibit I. The
settlement agreement included
-1-
a stipulation for entry of judgment in the event the defendants defaulted in
the performance of the settlement agreement. A true copy of the stipulation
is attached as Exhibit 2.
4. Because of the fact that BII is located in Australia, the
defendants are located in Great Britain, and the lawsuit was venued in San
Jose, California, and following the general usage of modern trade where the
contracting parties are in different locations, the settlement agreement and
stipulation for entry of judgment were circulated among the parties by fax
transmission. The defendant's signatures on the attached copies are,
therefore, fax copies of the original signatures, and have been accepted by
all parties as original signatures.
5. The settlement agreement has been partially performed by the
defendants, with the initial payment of $325,000 having been made in a
timely fashion. However, the defendants have now defaulted by (1) failing to
make the second installment payment of $166,667, which was due on February
10, 1996, and (2) failing to commence retail marketing of the goods
described in the complaint by February 10, 1996. (See Exhibit 1, (P)(P) 2.2
and 2.6, pp. 4-5)
6. Accordingly, BII is requesting that the court enter the stipulated
judgment.
I declare under penalty of perjury under the laws of the State of
California that the foregoing is true and correct.
Dated:
17/2/96 /s/ Xxxx Xxxxxx
----------------------------------
Xxxx Xxxxxx
-2-
