EXHIBIT 10.20
FULL RELEASE AND SETTLEMENT AGREEMENT
1. This Agreement is entered into by and between the following parties:
STYLES ON VIDEO, INC., ("STYLES"), DYCAM, INC. ("DYCAM"), STYLES SERVICING, INC.
("SSI") and XXXXXXX XXXXX, INC. ("FYI) (collectively referred to as the "STYLES
ENTITIES"); INTERNATIONAL DIGITAL INVESTORS, L.P. ("IDI"); XXXXXXX & ANDELSON,
XXXXXX X. XXXXXX ("LEAPER"), XXXXX X. XXXXXXX, XXXXXXX X. XXXX, and XXXX X. XXXX
(collectively referred to as the "ACCOUNTANTS"); and CPA MUTUAL INSURANCE
COMPANY OF AMERICA RISK RETENTION GROUP ("CPA MUTUAL").
RECITALS AND DEFINITIONS
2. STYLES has sued the ACCOUNTANTS in an action now pending in the Superior
Court of the State of California for the County of Los Angeles, case number BC
142968 (the "LAWSUIT"). STYLES has claimed, inter alia, that: the ACCOUNTANTS
negligently audited the financial statements of STYLES as of, and for the year
ended, December 31, 1993 (the "1993 FINANCIAL STATEMENTS"); the ACCOUNTANTS
subsequently learned of deficiencies in said audit and errors in the 1993
FINANCIAL STATEMENTS, yet failed to report them to appropriate people at STYLES,
or to take any action to correct such errors; that the ACCOUNTANTS negligently
provided services and advice regarding STYLES' quarterly financial statements in
1993 and 1994, and related Form 10-Qs filed with the Securities and Exchange
Commission; and that the ACCOUNTANTS wrongfully resigned from their capacity as
STYLES' auditors. STYLES has claimed damages in excess of 50 million dollars.
The ACCOUNTANTS have denied these allegations, and have denied causing STYLES
damages. CPA MUTUAL provides professional liability coverage for the ACCOUNTANTS
subject to policy terms and conditions.
3. As used in this Agreement, the "SHAREHOLDER LITIGATION" shall mean the
following cases: a) Xxxxxx & Co. Securities, Inc., et al. v. Styles On Video,
Inc. et al.; b) Xxxx Xxxxxxx, et al. v. Styles On Video, Inc. et al.; c) Xxxxxx
Xxxxxx, et al. v. Styles On Video, Inc. et al.; d) Xxxx Kassindorf, et al. v.
Styles On Video, Inc. et al.; e) Xxxx Xxxxx, et al. v. Guy De Vreese, et al.;
and f) any action which is a consolidation of one or more of the preceding
cases.
4. As used in this Agreement, the "LEAPER ACTION" shall mean the case
entitled Leaper v. Styles on Video, Inc. et al., case number BC121801 in the
California Superior Court for the County of Los Angeles, Central District.
5. As used herein, the "STIPULATION OF SETTLEMENT" shall mean the
Stipulation of Settlement filed on or about February 29, 1996 in case number CV-
94-8342-R (Ex), in the United States
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Xxxxxxxx Xxxxx for the Central District of California, Western District, and
attached hereto as Exhibit A.
6. As used in this Agreement, the "SUBJECT CLAIMS" shall mean all claims
which in any way relate to any of the following: the LAWSUIT; the 1993 FINANCIAL
STATEMENTS; any quarterly financial statements for the STYLES ENTITIES or any
corporation or entity affiliated with, owned by, or related to the STYLES
ENTITIES; or any other services or advice provided by any of the ACCOUNTANTS
(including, but not limited to, services by XXXXXX X. XXXXXX as an officer and
employee of STYLES), at any time, to the STYLES ENTITIES, or any other
corporation or entity affiliated with, owned by, or related to the STYLES
ENTITIES.
7. The parties desire to finally settle and resolve all disputes between
them related to the SUBJECT CLAIMS and all other possible disputes between the
parties.
NOW, THEREFORE, for good and valuable consideration, the parties hereby
agree as follows:
WARRANTIES
8. Attached hereto are the following exhibits: the STIPULATION OF
SETTLEMENT (Exhibit A); waivers and consents from Agricultural Excess and
Surplus Insurance Company ("AESIC"), Certain Underwriters at Lloyds and London
Companies ("LLOYDS"), and The Home Insurance Company ("HOME") (Exhibits B
through D respectively); a release (including a release of the "Notice of
Attorney Lien", dated May 2, 1996, and all other lien rights) from Troop
Xxxxxxxxx Xxxxxxx Xxxxxx, LLP (which shall contain a representation that they
are the successor in interest to Hill, Wynne, Troop & Xxxxxxxxx) (Exhibit E); a
release from Multinational Trading Corp. (Exhibit F); and releases from Xxxxxxx
Xxxxxxx, Xxxxx Xxxxxx, Xxxx Xxxxxx, Xxxxxxxx Xxxxxx, Xxxx Xxxxxx, and Xxx Xxxxxx
Xxxxxxxx (Exhibits G through L, respectively). The documents described above in
this paragraph, shall hereinafter be collectively referred to as the "THIRD
PARTY RELEASES". No later than June 1, 1996, the STYLES ENTITIES shall provide
fully-executed Exhibits C through L.
9. The STYLES ENTITIES acknowledge that the ACCOUNTANTS have entered into
this Agreement in reliance upon the THIRD PARTY RELEASES, and that the
ACCOUNTANTS would not have entered into this Agreement without them. The STYLES
ENTITIES hereby represent and warrant the following: that the signatures on all
of the THIRD PARTY RELEASES are authentic and not forgeries; that, with respect
to the THIRD PARTY RELEASES by corporations or partnerships, the signatories
were duly authorized and empowered to enter into those releases on behalf of
those entities; that AESIC, LLOYDS and HOME are all of the insurers who made any
payments, or are obligated to make any payments, for the
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SHAREHOLDER LITIGATION; that Xxxxxxx Safshik, Xxxxx Xxxxxx, Xxxx Xxxxxx,
Xxxxxxxx Xxxxxx, Xxxx Xxxxxx, and Xxx Xxxxxx Xxxxxxxx are all of the current
directors of STYLES; that, except for the SHAREHOLDER LITIGATION, none of the
STYLES ENTITIES has been sued in any class action or shareholder derivative suit
at any time; that the STYLES ENTITIES are unaware of any claims which may result
in the filing of any class action or shareholder derivative suit against any of
the STYLES ENTITIES or the ACCOUNTANTS, other than the SHAREHOLDER LITIGATION;
and that the STYLES ENTITIES have not been sued in any type of action seeking
damages related to false or misleading information in any of its annual or
quarterly financial statements, or any of its SEC filings, other than the
SHAREHOLDER LITIGATION.
10. If any of the foregoing warranties or representations by the STYLES
ENTITIES is untrue, the ACCOUNTANTS shall have the right, at their sole option,
to declare this Agreement and the THIRD PARTY RELEASES null and void by giving
written notice to the STYLES ENTITIES and IDI within 60 days after discovery
that such warranty or representation is untrue; in that event, the STYLES
ENTITIES shall repay the entire amount of the settlement payment to the
ACCOUNTANTS, this Agreement and the THIRD PARTY RELEASES shall become null and
void (see paragraph 23 for effect on the LAWSUIT), and the parties shall be
deemed to enjoy their respective positions as of the date of this Agreement as
if this Agreement had never been made.
DEFENSE AND INDEMNITY
11. The STYLES ENTITIES shall indemnify and hold harmless the ACCOUNTANTS
from any and all claims brought by or on behalf of any past, present or future
shareholders of the STYLES ENTITIES related to any alleged damages resulting
from their ownership, purchase, or sale of stock in the STYLES ENTITIES. The
STYLES ENTITIES shall defend, indemnify and hold harmless the ACCOUNTANTS from
any breach of any and all claims which appear to be released pursuant to the
THIRD PARTY RELEASES.
CONDITION PRECEDENT
12. This Agreement is expressly conditioned upon the issuance and entry of
a valid and final judicial order ("ORDER OF FINAL APPROVAL") granting final
approval of the STIPULATION OF SETTLEMENT. If an ORDER OF FINAL APPROVAL is
issued and filed, then STYLES (or IDI on behalf of STYLES) shall give notice to
the ACCOUNTANTS, including the following: a certified copy of said order; and a
written representation and warranty that no appeal has been filed, or
threatened, with respect to said order, and that said Order has been entered by
the court and is final, valid and enforceable.
13. Within 3 business days after the DATE OF NOTICE from
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STYLES (or IDI on behalf of STYLES), CPA MUTUAL and IDI shall send (via Federal
Express) instructions, pursuant to the ESCROW INSTRUCTIONS (attached as Exhibit
M), authorizing the immediate disbursement of all the ESCROW FUNDS (defined in
the ESCROW INSTRUCTIONS) as follows: $250,000 to Troop Xxxxxxxxx Xxxxxxx Xxxxxx,
LLP; and the entire balance to IDI. Notwithstanding the foregoing sentence,
neither CPA MUTUAL nor the ACCOUNTANTS shall have any obligation to send such
instructions unless the ACCOUNTANTS have received fully-executed Exhibits C
through L to this Agreement. (See paragraph 8, above.)
14. Notwithstanding the first sentence of the preceding paragraph, if
STYLES (or IDI on behalf of STYLES) does not give notice to the ACCOUNTANTS
(pursuant to paragraph 12, above) by November 1, 1996, then CPA MUTUAL shall
have the sole option, to be exercised in its discretion at any time after
November 1, 1996, to declare this Agreement and the THIRD PARTY RELEASES null
and void by providing notice to the STYLES ENTITIES and IDI. Within 3 business
days after the DATE OF NOTICE of said elect-on, IDI and CPA MUTUAL shall send
(via Federal Express) instructions, pursuant to the ESCROW INSTRUCTIONS,
authorizing the immediate disbursement of all the ESCROW FUNDS to CPA MUTUAL. In
that event, this Agreement shall become null and void (see paragraph 23 for
effect on the LAWSUIT), and the parties shall be deemed to enjoy their
respective positions as of the date of this Agreement as if this. Agreement had
never been made.
SETTLEMENT PAYMENTS
15. The ACCOUNTANTS (through their insurer, CPA MUTUAL) shall pay ONE
MILLION SEVEN HUNDRED THOUSAND DOLLARS AND NO CENTS ($1,700,000.00) to the
ESCROW AGENT (defined in ESCROW INSTRUCTIONS attached as Exhibit M) by a check
made payable to "Bank of San Francisco, Escrow Agent". Said payment shall be
sent via Federal Express no later than five (5) days after this Agreement has
been fully executed by all of the parties and an original of the fully-executed
agreement has been sent to Xxxxxx X. Xxxxxx at Xxxxxxx, Xxxxxxx & Xxxxxx, Xxx
Xxxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx, XX 00000 by personal delivery.
Said settlement payment shall be subject to the instructions, terms and
conditions set forth in the ESCROW INSTRUCTIONS (Exhibit M). The ACCOUNTANTS
represent and warrant that no part of such payment is made by or on behalf of
CAMICO Mutual Insurance Company. CPA MUTUAL waives any subrogation or other
rights it may have to recover costs of the defense or settlement of the LAWSUIT
from the STYLES ENTITIES.
RELEASE
16. The parties hereby release and forever discharge each other, including
their agents, partners, employees, shareholders,
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officers, directors, attorneys, insurers and affiliated entities of and from all
claims, demands, actions, and causes of action arising out of or in any way
connected with any matter or thing whatsoever, including without limitation the
SUBJECT CLAIMS, any stock options, or any other accounting services, tax
services, advice or other services provided by any of the ACCOUNTANTS to the
STYLES ENTITIES at any time. Notwithstanding anything to the contrary in this
Agreement, neither the ACCOUNTANTS nor the STYLES ENTITIES release Guy de Vreese
in any manner, and each reserves the right to assert any and all claims or
causes of action which any of them has against him.
17. This is a full and final release of any and all claims arising out of
said matters and the parties hereto agree as further consideration and
inducement for this compromise and settlement that said release shall apply to
all unknown and unanticipated damages or injuries. The parties hereby waive and
relinquish any rights they may have pursuant to 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 or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected the
settlement with the debtor."
18. This release is freely and voluntarily entered into, and the STYLES
ENTITIES hereby agree to enter a dismissal with prejudice of the LAWSUIT. LEAPER
agrees to enter a dismissal with prejudice of the LEAPER ACTION. Each party
shall bear its own costs and attorneys fees.
19. It is understood and agreed that this is a compromise settlement of a
disputed claim and that the consideration for this release shall not be deemed
or construed as an admission of any liability by any of the parties to any other
party.
20. The parties represent to each other that no claim released pursuant to
paragraph 16 hereof has been assigned or hypothecated to any person or entity,
and each agrees to indemnify, defend and hold harmless the other(s) from any
loss, cost or damage resulting from the breach of the representation in this
paragraph.
REPRESENTATION BY COUNSEL
21. The parties hereby acknowledge and warrant that they have consulted
their own lawyers regarding the terms of this agreement and that they each
execute this-agreement following full consultation with their counsel.
CONFIDENTIALITY
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22. The parties hereto further agree that they will not hereinafter
disclose, release, publicize or cause to be publicized, in any manner
whatsoever, the terms, covenants, conditions or provisions of this Agreement, or
the payments made hereunder, to any person or entity other than the parties to
this Agreement, their insurers, their attorneys, IDI and/or as may be required
for the following: preparation of tax returns; financial statements prepared in
accordance with generally accepted accounting principles; or to comply with any
statute, rule, regulation, order, subpoena or other process of any court,
governmental or administrative entity or any securities exchange, including,
without limitation, any disclosure or reporting requirements under applicable
securities law.
MISCELLANEOUS
23. Void. If this Agreement does become null and void pursuant to
paragraphs 10 or 14 hereof, or for any other reason, it is the intent of the
parties that they be deemed to enjoy their respective positions as of the date
hereof, and the period equal to the interval between the date of the Agreement
until a date 30 days after the DATE OF NOTICE to the STYLES ENTITIES and IDI
that the Agreement is null and void (the TOLLING PERIOD"), shall be treated as
follows: the TOLLING PERIOD (and any even-s occurring during the TOLLING PERIOD)
shall not be considered or included in determining the application of any
statute of limitations, the doctrine of laches, or estoppel, or any doctrines of
similar purpose or effect, to any claims released by this Agreement or the THIRD
PARTY RELEASES.
24. Notices. Notices pursuant to this Agreement shall be in writing and
delivered, or mailed (first class, postage prepaid) as follows:
If to the STYLES ENTITIES:
Xxxx X. Xxxxxx
Christensen, Miller, Fink, Jacobs,
Xxxxxx, Weil & Xxxxxxx
2121 Avenue of the Stars
00xx Xxxxx Xxx Xxxxxxx, XX 00000;
with a copy (which may be mailed even if the original
is delivered) to:
Styles on Video, Inc.
Attn: Chief Executive Officer/General Counsel
000 Xxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxx Xxxx, XX 00000;
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If to IDI:
O'Melveny & Xxxxx
000 Xxxxx Xxxx Xxxxxx
Xxx Xxxxxxx, XX 00000-0000
Attn: Xxx XxXxxxx
If to the ACCOUNTANTS:
Xxxxxx X. Xxxxxx
Xxx Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000;
with a copy (which may be mailed even if the original is delivered) to:
Xxxxx Xxxx
Claims Professionals Associated, Inc.
000 X. Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Any party may designate a new address by providing proper notice to the other
party. The "DATE OF NOTICE" shall mean: the date when personally delivered or
five (5) days after mailing. Notice shall be deemed given or made as of the
DATE OF NOTICE.
25. Joint and several obligations. All duties and obligations of the STYLES
ENTITIES shall be joint and several obligations of STYLES, FYI, SSI, and DYCAM.
26. No tax representation. The ACCOUNTANTS have made no representation or
warranty regarding the appropriate tax treatment by the STYLES ENTITIES for the
settlement payment provided by this Agreement, or any other tax issue arising
out of this Agreement.
27. Invalidity. If any provision of this contract is held to be invalid or
is invalid for any reason, the remainder shall not be invalid and shall remain
in full force and in effect.
28. Binding Effect. This Agreement shall be binding upon the parties and
their respective legal representatives, heirs, successors, and assigns.
29. Paragraph Headings. The paragraph and section headings in this
Agreement are for purposes of convenience and ease of reference only and shall
not be construed to limit or otherwise affect the meaning of any part of this
agreement.
30. Entire Agreement. This Agreement constitutes the entire agreement among
the parties hereto relating to the subject
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matter hereof. All prior agreements, correspondence, discussions and
understandings of the parties are merged herein and made a part hereof, with the
intention of the parties hereto that this agreement shall serve as the complete
and exclusive statement of the terms of their agreement. No amendment, waiver or
modification hereto or hereunder shall be valid unless in writing, signed by an
authorized signatory of the party or parties or to be affected thereby and IDI,
which is an intended third party beneficiary of this Agreement.
31. Governing Law and Jurisdiction. This Agreement shall be governed and
construed according to the laws of the State of California. All of the
undersigned people and entities consent to the jurisdiction of courts of the
State of California for any lawsuit related to, or arising out of, this
Agreement, including, but not limited to the ESCROW INSTRUCTIONS.
32. Attorneys Fees. If either party brings an action, at law, or in
equity, against the other party arising out of or in connection with this
Agreement, the prevailing party shall be entitled to recover from the other
party the costs of suit incurred and reasonable attorney fees.
33. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be read together and construed as one and the
same agreement.
34. Cooperation. Each party to this Agreement agrees to perform any
further acts and execute and deliver any additional documents that may be
reasonably necessary to carry out the provisions and intent of this Agreement.
IN WITNESS WHEREOF, the undersigned have hereby executed this Release and
Settlement Agreement.
DATED: STYLES ON VIDEO, INC.
BY:
Print Name
Title: Chief Executive Officer
DATED: STYLES ON VIDEO, INC.
BY:
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Print Name
Title: Corporate Secretary
DATED: DYCAM, INC.
BY:
Print Name
Title: President
DATED: DYCAM, INC.
BY:
Print Name
Title: Corporate Secretary
DATED: STYLES SERVICING, INC.
BY:
Print Name
Title: President
DATED: STYLES SERVICING, INC.
BY:
Print Name
Title: Corporate Secretary
DATED: XXXXXXX XXXXX, INC.
BY:
Print Name
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Title: President
DATED: XXXXXXX XXXXX, INC.
BY:
Print Name
Title: Corporate Secretary
DATED: INTERNATIONAL DIGITAL INVESTORS, L.P.
BY: IDI CORP., its general partner
BY:
XXXXXXX XXXXXXX, president of
IDI Corp.
DATED: XXXXXXX & ANDELSON
BY:
Print Name
Title: President
DATED: XXXXXXX & ANDELSON
BY:
Print Name
Title: Corporate Secretary
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DATED:
XXXXXX X. XXXXXX
DATED:
XXXXX X. XXXXXXX
DATED:
XXXXXXX X. XXXX
DATED:
XXXXXXXXX XXXX
DATED: CPA MUTUAL INSURANCE COMPANY
OF AMERICA RISK RETENTION
GROUP
BY:
XXXXXXX X. XXXXXXXX, XX.
Title: President
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