FINAL SETTLEMENT AGREEMENT
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THIS FINAL SETTLEMENT AGREEMENT is entered into as of the 10th day of
August, 1998 (the "Effective Date") between Advance Display Technologies, Inc.
("ADT") and Display Group, LLC ("Display"), on the first part, and Xxxxxxx X.
Xxxxxxxx ("Xxxxxxxx") and Corporate Partners, Inc. ("CPI") on the second part.
RECITALS
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A. WHEREAS, Display has initiated suit against CPI and Xxxxxxxx in the
District Court for Lubbock County, Texas, Display Group, LLC v. Corporate
Partners, Inc., et al., Case No. 96- 557024 (the "Texas Litigation"); and
B. WHEREAS, Display has initiated suit against American Consolidated Growth
Corporation ("ACGC") and others in the District Court for Arapahoe County,
Colorado, Display Group, LLC v. American Consolidated Growth Corporation, et.
al., Case No. 96-CV-1560 (the "Colorado Litigation"); and
C. WHEREAS, each of the Defendants in the Texas Litigation and the Colorado
Litigation timely filed Answers denying all liability to any of the Plaintiffs
and the Colorado Litigation has now been set for trial; and
D. WHEREAS, under the terms of that certain EXCHANGE AGREEMENT between ACGC
and CPI , dated October 26, 1996 (the "Exchange Agreement"), ACGC has assigned
to CPI all of its right, title and interest in all actions, suits, claims,
causes of action, damages, judgments and demands, whether at law or in equity,
that it has or may have against ADT and Display and their affiliates and related
entities; and
E. WHEREAS, CPI and/or Xxxxxxxx claim an ownership interest in 1,402,157
shares of common stock of ADT ( the "ADT Stock"), some of the certificates for
which are in the registry of the Arapahoe County District Court, Case No.
96-CV-1560;
F. WHEREAS, the parties to this Final Settlement Agreement desire to
compromise, settle and finally resolve all disputes, controversies, demands,
claims, causes of action, promises, covenants, commitments, liabilities, costs,
expenses and assertions (collectively referred to as the "Claims") which have
arisen at any time prior to the execution of this instrument;
NOW, THEREFORE, in exchange for the mutual promises, commitments and
consideration recited herein, and other good and valuable consideration, the
receipt and sufficiency whereof is hereby acknowledged, it is hereby agreed as
follows:
AGREEMENT
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1. Cash Consideration. On or before August 10, 1998, CPI and Xxxxxxxx shall
cause to be paid to ADT and Display the sum of One Hundred Seventy Five Thousand
Dollars ($175,000.00) in readily available funds.
2. Dismissal of Claims/Litigation. Immediately upon payment of the Cash
Consideration described in Paragraph 1 above, each of the parties hereto shall
execute and cause to be filed in Texas Litigation and the Colorado Litigation
joint motions for dismissal with prejudice. Therein, the parties shall jointly
seek immediate entry of Orders in the Texas Litigation and the Colorado
Litigation dismissing , with prejudice, all Claims which any of the parties
asserted or which could have been asserted by any parties, with each party to
bear its own costs and attorneys' fees and releasing the ADT stock to ADT.
3. Assignment of ADT Stock. Immediately upon the payment of the Cash
Consideration described in Paragraph 1 above, CPI and Xxxxxxxx, and/or ACGC
shall each assign to ADT, and or its designees, all of their respective right,
title and interest in the ADT Stock, shall deliver to ADT appropriate stock
powers to evidence the assignment and shall sign a stipulation authorizing the
release of the ADT stock from the court Registry to ADT. Furthermore, to the
extent that the parties discover any additional shares of ADT owned by CPI or
Xxxxxxxx and/or ACGC the parties shall promptly assign to ADT via appropriate
instruments of assignment and stock powers all such ADT shares.
4. Releases by Xxxxxxxx and CPI.
x. Xxxxxxxx and CPI each release, acquit and forever discharge ADT, Display
and Display Optic, Ltd., and their respective affiliates, shareholders, members,
directors, managers, officers, representatives, employees, attorneys, agents and
assigns (collectively referred to as the "Display Releasees"), of and from any
and all Claims, asserted or unasserted, known or unknown, mutual mistake of fact
notwithstanding, that Xxxxxxxx and/or CPI ever had, now has or may have in the
future against any of the Display Releasees based upon any act, omission,
matter, transaction or cause of occurring at any time on or before the Effective
Date.
x. Xxxxxxxx and CPI each agree and covenant not to institute, cause to be
instituted, or cooperate in or facilitate the institution of, any action against
any of the Display Releasees in which action liability is in any way to be
predicated upon any of the Claims released herein. Xxxxxxxx and CPI each agree
to indemnify and hold harmless each of the Display Releasees from and against
all Claims or losses, including reasonable attorneys' fees, incurred by any of
the Display Releasees in defending against any Claim filed in violation of the
release specified herein.
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5. Releases by ACGC.
a. In accordance with the terms of the Exchange Agreement, on behalf and as
assignee of ACGC, CPI hereby releases, acquits and forever discharges ADT,
Display and Display Optics, Ltd., and their respective affiliates, shareholders,
members, directors, managers, officers, representatives, employees, attorneys,
agents and assigns (collectively referred to as the "Display Releasees"), of and
from any and all Claims, asserted or unasserted, known or unknown, mutual
mistake of fact notwithstanding, that ACGC ever had, now has or may have in the
future against any of the Display Releasees based upon any act, omission,
matter, transaction or cause occurring at any time on or before the Effective
Date.
b. CPI agrees and covenants not to institute, cause to be instituted, or
cooperate in or facilitate the institution of, any action against any of the
Display Releasees in which action liability is in any way to be predicated upon
any of the Claims released herein. CPI agrees to indemnify and hold harmless
each of the Display Releasees from and against all claims or losses, including
reasonable attorneys' fees, incurred by any of the Display Releasees in
defending against any Claim filed in violation of the release specified herein.
6. Releases by ADT and Display.
a. ADT and Display each release, acquit and forever discharge Xxxxxxxx and
CPI, and their respective affiliates, shareholders, directors, officers,
representatives, employees, attorneys, agents, heirs, successors and assigns
(collectively referred to as the "Xxxxxxxx Releasees") of and from any and all
Claims, asserted or unasserted, known or unknown, mutual mistake of fact
notwithstanding, that ADT and/or Display ever had, now has or may have in the
future against any of the Xxxxxxxx Releasees based upon any act, omission,
matter, transaction or cause occurring at any time on or before the Effective
Date.
b. ADT and Display each agree and covenant not to institute, cause to be
instituted, or cooperate in or facilitate the institution of, any action against
any of the Xxxxxxxx Releasees in which action liability is in any way to be
predicated upon any of the Claims released herein. ADT and Display each agree to
indemnify and hold harmless each of the Xxxxxxxx Releasees from and against all
Claims or losses, including reasonable attorneys' fees, incurred by any of the
Display (sic) Releasees in defending against any Claim filed in violation of the
release specified herein.
7. No Admission of Liability. It is expressly understood and agreed by each
party to this Final Settlement Agreement that this instrument incorporates a
compromise and settlement of disputed Claims, and that the other parties have
executed and delivered this instrument, and will fully and timely comply with
its terms, to avoid the expense and uncertainty of litigation. Nothing herein
shall be deemed or construed to be an admission or acknowledgment by any party
of any wrongdoing or liability of any kind or nature, each party being expressly
understood to deny all allegations of wrongdoing and liability.
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8. Authority and Nonassignment of Claims. Each of the parties to this Final
Settlement Agreement represents and warrants to the other parties to this
instrument that he/it has full authority to enter into this Final Settlement
Agreement and that is has not assigned, transferred, conveyed, encumbered or
pledged any all or any part of any Claims released herein, and that no person,
group, entity or party, other than the parties to this instrument, has any
interest in any such Claim.
9. Confidentiality and Non-Disparagement. The parties expressly recognize
that this Agreement and its terms are of a highly confidential nature.
Disclosure of the terms of this Agreement may be prejudicial or damaging to one
or more of the parties hereto in one or more respects that are difficult to
anticipate. Accordingly, except as may otherwise be required by law, or as
necessary for legal or accounting advice or services, the parties shall maintain
in the strictest confidence the terms and conditions of this Agreement.
Moreover, the parties each agree that they shall not disparage any of the other
parties to this Final Settlement Agreement.
10. Paragraph Headings and Construction. The parties to this Final
Settlement Agreement acknowledge and agree that the paragraph headings contained
herein are for convenience only and may not describe completely the subject
matter of the paragraph to which they apply. Such paragraph headings shall not
be used in any manner to construe, limit, define or interpret any term or
provision hereof. The parties further acknowledge and agree that this instrument
has been fully negotiated and reviewed among the parties and their respective
counsel, and no uncertainty or ambiguity in any term or provision hereof shall
be construed strictly against any party hereto under any rules of the
construction or otherwise.
11. Advice of Counsel. Each of the parties to this Final Settlement
Agreement acknowledges and represents that it has obtained the advice of legal
counsel of his/its respective choice prior to the execution of this instrument,
that each has read this instrument carefully, that each has been advised of its
meaning and consequences by its respective counsel, and that each executes this
instrument of his/its own free will.
12. Parties to Bear Own Costs and Expenses. Except as otherwise provided
herein, each party to this Final Settlement Agreement shall bear its own costs,
expenses, and attorneys' fees, whether taxable or otherwise, incurred in or
arising out of, or in any way connected with, the disputes which are the subject
of this instrument.
13. Benefit of the Agreement. This Final Settlement Agreement shall be
binding upon, and shall inure to the benefit of, the parties hereto, as well as
their respective present and former shareholders, members, directors, managers,
officers, representatives, employees, agents, attorneys, heirs, successors, and
assigns.
14. Integration: Entire Agreement. This Final Settlement Agreement
constitutes the complete, final and exclusive agreement of the parties with
respect to the subject hereof. It supersedes all prior or contemporaneous
negotiations, discussions, representations, warranties, undertakings and
agreements, whether written or oral, which are not set forth in this instrument.
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The parties hereby acknowledge and agree that the terms of this instrument are
not a mere recital. In executing and delivering this instrument, each Party
warrants that it has relied exclusively upon its own judgment and that of
his/its counsel, and that each has in no way relied upon or been induced by any
representation, statement or act by any other party or its representatives,
except as contained or referred to herein. No part of this Final Settlement
Agreement may be altered, amended, modified or varied by any Party except in a
writing signed by all parties hereto.
15. Governing Law. This Final Settlement Agreement shall be deemed to have
been entered into and shall be construed and enforced in accordance with the
laws of the State of Colorado as applied to contracts made and to be performed
entirely within the State of Colorado.
16. Enforcement. Each of the parties covenants and agrees that the terms of
this Final Settlement Agreement may be enforceable by an order of specific
performance. In the event that any action, suit or proceeding is initiated to
interpret or enforce the terms of this instrument, the prevailing party or
parties shall be entitled (in addition to any other relief or remedy to which it
may be entitled) to recover its reasonable attorneys' fees from the other
parties to this instrument.
17. Execution in Counterparts/Facsimile. This Final Settlement Agreement
may be executed in multiple counterparts, each of which shall be deemed to be an
original of the instrument, and all of which taken together shall constitute a
single agreement among the Parties hereto. This instrument may be executed with
facsimile signatures which shall be deemed the same as an originally executed
document.
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IN WITNESS WHEREOF, the Parties have executed and delivered this instrument
to be effective as of the date first above written.
ADVANCE DISPLAY TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
President
DISPLAY GROUP, LLC
ADVANCE DISPLAY TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxxx, President
-----------------------------------
Manager
CORPORATE PARTNERS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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President
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxxx
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GENERAL RELEASE
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FOR AND IN CONSIDERATION of Ten Dollars ($10.00), in hand paid, and other
good and valuable consideration, the receipt and sufficiency whereof is
conclusively acknowledged, the undersigned hereby releases, acquits and forever
discharges Advanced Display Technologies, Inc. and Display Group, LLC, Display
Optics, Ltd. and all of their respective affiliates, shareholders, members,
directors, managers, officers, representatives, employees, attorneys, agents and
assigns (collectively referred to as the "Display Releasees") of and from any
and all disputes, controversies, demands, claims, causes of action, promises,
covenants, commitments, liabilities, costs, expenses and assertions, regardless
of how arising, asserted or unasserted, known or unknown, mutual mistake of fact
not withstanding, that the undersigned ever had, now has or may have in the
future against any of the Display Releasees based upon any act, omission,
matter, transaction or cause occurring at any time on or before August 10, 1998.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
instrument as of August 10, 1998.
/s/ Xxxxxxx X. Writer
------------------------------------
Xxxxxxx Writer
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STOCK ASSIGNMENT
FOR VALUE RECEIVED, CORPORATE PARTNERS, INC. and Xxxxxxx X. Xxxxxxxx, the
undersigned, hereby sell(s), assign(s) and transfer(s) one million six hundred
twenty three thousand seven hundred fifty (1,623,750) shares of the common
stock, of the Advance Display Technologies, Inc. unto_________________, which
stock is standing in the name of the undersigned on the books and records of the
corporation represented by certificate no._______________, and to hereby
irrevocably constitute and appoint_________________________ as attorney-in-fact
to transfer the said stock on the books of the company with full power of
substitution in the premises.
DATED: August 10, 1998
CORPORATE PARTNERS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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President
/s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxxx
In the presence of:
____________________________________
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