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EXHIBIT 10.73
SETTLEMENT & MUTUAL RELEASES
THIS SETTLEMENT & MUTUAL GENERAL RELEASES (hereinafter referred to as
the "Agreement") is entered into by the following parties: Xxxxxxx Xxxxxx,
Xxxxxx Xxxxxx, Xxxx Xxxxxx and Xxxxxx Xxxxxx Xxxxxx (collectively hereinafter
referred to as the "Heirs", jointly and severally), The Xxxxxx Entertainment
Company and Xxxxxx Comics, Inc. (collectively hereinafter referred to as
"Xxxxxx", jointly and severally), with reference to the following facts:
WHEREAS, the Heirs are the heirs of the late Xxxxxx Xxxxxx (and
constitute all the heirs of Xxxxxx Xxxxxx with the authority to grant the rights
and incur the obligations contained in this Agreement), the well known creator
of comic book characters and other intellectual property;
WHEREAS, in December 1999 and January 2000, the Heirs sent to Xxxxxx
certain documents entitled Notices of Termination of Transfers and Licenses
("Notices") with respect to that certain intellectual property known as "Casper
The Friendly Ghost" (hereinafter referred to as "Casper");
WHEREAS, on or about February 11, 2000, Xxxxxx filed a Complaint For
Declaratory Relief and Damages for Slander of Title against the Heirs in the
United States District Court for the Central District of California (the
"Lawsuit");
WHEREAS, the Heirs have not previously transferred any of the rights to
any third parties that the Heirs are transferring herein;
WHEREAS, the parties now wish to settle any and all disputes between
them and engage in certain business transactions, as more specifically set forth
in this Agreement;
NOW, THEREFORE, the parties hereby agree as follows, effective upon the
full execution of this Agreement by all the parties:
1. The parties will take no further actions in connection with the Lawsuit,
except that Xxxxxx will promptly cause the Lawsuit to be dismissed with
prejudice and provide documentation of same to the Heirs.
2. The Heirs hereby irrevocably grant, sell, assign and transfer to Xxxxxx,
forever and exclusively, any and all of their interests, rights, claims,
copyrights and trademarks in Casper, including all now or hereafter existing
rights of every kind in, to, and pertaining to Casper, whether or not such
rights are now known, recognized, contemplated, invented or discovered,
including but not limited to any and all interests of the Heirs in the title
in and to Casper, throughout the universe, for all uses and purposes
whatsoever, subject to the terms of this Agreement. The foregoing is
intended as and shall constitute a quitclaim of all of the Heirs interests,
rights, claims, copyrights and trademarks in Casper. Upon
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request of Xxxxxx, the Heirs will promptly withdraw the Notices.
3. Xxxxxx will forever give credit to Xxxxxx Xxxxxx as creator of Casper in all
motion pictures and other audio-visual productions featuring Casper, and
Xxxxxx will forever give credit to Xxxxxx Xxxxxx as creator of Casper in
other Xxxxxx products where Xxxxxx determines in good faith that giving
"creator" credit to anyone is appropriate. Xxxxxx shall have the right but
not the obligation to give credit to Xxxxxxx Xxxx (and only to Xxxxxxx Xxxx)
as an additional creator of Casper, provided that such credit to Xxxxxxx
Xxxx is never more prominent (in size, style of type, etc.) than the credit
given to Xxxxxx Xxxxxx and that the credit to Xxxxxx Xxxxxx is in first
position no less than approximately half the time on an ongoing basis (with
Xxxxxx taking into account in good faith the importance of Xxxxxx'x various
products that incorporate Casper, so that Xxxxxx Xxxxxx'x credit is in first
position at least approximately half the time on Xxxxxx'x most important and
prominent products, and so forth with Xxxxxx'x less important and less
prominent products), excluding theatrical motion pictures produced or
distributed or licensed by Universal Pictures or any related entity (parent,
subsidiary or affiliate) of Universal Pictures. In the case of theatrical
motion pictures produced or distributed or licensed by Universal Pictures or
any related entity of Universal Pictures, Xxxxxx Xxxxxx'x credit vis-a-vis
Xxxxxxx Xxxx'x credit shall be no less prominent (including position) than
Xxxxxx Xxxxxx'x credit was in Universal Pictures' theatrical motion picture
known as Casper that was released in or about 1995. Without limiting the
generality of the foregoing, Xxxxxx shall give such credit to Xxxxxx Xxxxxx
as part of the main credits in all motion pictures and other audio-visual
productions featuring Casper where credits are given to any other persons
for creative services (including actors, writers, directors, producers,
etc.). Xxxxxx shall also require all third parties that acquire rights in
Casper from Xxxxxx to give the aforesaid credits to Xxxxxx Xxxxxx.
4. Xxxxxx Xxxxxx shall have the right to sign the name "Oriolo" on all Casper
artwork (including cells) issued by Xxxxxx or under Xxxxxx'x control where
Xxxxxx determines in good faith that creator signatures are appropriate.
Subject to Xxxxxx Xxxxxx'x availability, Xxxxxx Xxxxxx will physically
appear at places and times reasonably requested by Xxxxxx to sign Casper
artwork for the public, provided that Xxxxxx reimburses Xxxxxx Xxxxxx for
his reasonable expenses and for his services in accordance with industry
standards. As a general matter, Xxxxxx in its sole good faith discretion
shall have the right to use the name and likeness of Xxxxxx Xxxxxx and of
Xxxxxx Xxxxxx in connection with Casper in a reasonable manner not
inconsistent with industry standards.
5. The Heirs and Xxxxxx each agree to execute all reasonable documents
requested by the other in connection with the subject matter of this
Agreement in order to effectuate the purposes and intents of this Agreement,
at the expense of the party making such request. Without limiting the
generality of the foregoing, the Heirs agree to assign to Xxxxxx all of
their rights in any trademarks relating to Casper that may have been filed
by any of the Heirs or their representatives in Germany or any other country
and to execute all reasonable documents to effectuate such assignments,
provided that (if Xxxxxx requests the Heirs to so assign and/or to execute)
Xxxxxx will promptly reimburse the Heirs for the
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costs that they previously incurred in connection with such German trademark
filings, including but not limited to legal fees and filing fees, but not to
exceed US$2,900.00 per trademark.
6. Except as set forth in this Agreement, each Heir for him or herself and his
or her respective successors, affiliates, agents, employees and assigns
hereby relieves, covenants not to xxx, releases and discharges Xxxxxx, their
directors, officers, assigns, assures, successors, employees, agents,
attorneys, parent, subsidiaries, affiliates from any and all claims,
demands, actions or causes of action, debts, controversies and damages of
whatever kind or nature whether now known or unknown which such Heir might
have or claim to have or at any time heretofore had or claimed to have. Each
Heir acknowledges that he or she is aware that it may hereafter discover
facts different from or in addition to what he or she now knows or believes
to be true with respect to the matters herein released, and he or she agrees
that this release shall be and remain in effect in all respects as a
complete general release, notwithstanding any such different or additional
facts. Each Heir acknowledges that he or she has been informed of Section
1542 of the Civil Code of the State of California and does hereby expressly
waive and relinquish all rights and benefits that he or she has or may have
under said Section, which reads as follows:
a) "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 his
settlement with the debtor."
7. Except as set forth in this Agreement, Xxxxxx for itself and its respective
successors, affiliates, agents, employees and assigns hereby relieves,
covenants not to xxx, releases and discharges the Heirs, their assigns,
assures, successors, employees, agents, attorneys, and affiliates from any
and all claims, demands, actions or causes of action, debts, controversies
and damages of whatever kind or nature whether now known or unknown which
Xxxxxx might have or claim to have or at any time heretofore had or claimed
to have. Xxxxxx acknowledges that it is aware that it may hereafter discover
facts different from or in addition to what it now knows or believes to be
true with respect to the matters herein released, and it agrees that this
release shall be and remain in effect in all respects as a complete general
release, notwithstanding any such different or additional facts. Xxxxxx
acknowledges that it has been informed of Section 1542 of the Civil Code of
the State of California and does hereby expressly waive and relinquish all
rights and benefits that it has or may have under said Section, which reads
as follows:
a) "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 his
settlement with the debtor."
8. Xxxxxx and the Heirs each hereby represents and warrants to the other, and
agrees with the other party as follows:
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a) Each party has received legal advice from its attorneys with respect to
the advisability of making and executing this Agreement including,
without limitation, the release provided for above, and knows and
understands its legal effect.
b) No person, firm or corporation (whether or not a party hereto) has made
any statement, representation or promise regarding a fact relied upon by
either party in entering into this Agreement which is not set forth
herein.
c) Each party has made such investigation of the facts pertaining to the
disputes hereinabove described and of all matters pertaining thereto as
each party may deem necessary or desirable.
d) Each party has the full right, capacity and authority to enter into the
perform this Agreement.
9. The terms of this Agreement are contractual and not a mere recital.
10. Xxxxxx and the Heirs also each represent and warrant to the other that such
party has not assigned or transferred to any person, firm, corporation or
other entity in any manner, including by way of subrogation or operation of
law, or otherwise, any claim, right, demand, action or cause of action that
the parties may have had, has or might have arising out of the matters
described herein, nor any portion thereof.
11. The validity, construction and enforceability of this Agreement shall be
governed in all respects by the laws of California applicable to agreements
negotiated, executed and performed in California by California parties. The
parties hereby confer upon the United States federal and state courts
located in the City and County of Los Angeles exclusive jurisdiction to hear
all disputes arising under the Agreement or by reason of its termination,
and agree that service of process may be served, in addition to any other
method permitted by law, by registered or certified mail sent return receipt
requested. In the event of any breach of this Agreement, the aggrieved party
may seek (and be entitled in appropriate circumstances to obtain) money
damages or specific performance, but no party shall seek or be entitled to
rescind or terminate this Agreement.
12. All representations and warranties contained herein shall survive the
execution of this Agreement.
13. This Agreement sets forth the entire understanding and supersedes all prior
and contemporaneous agreements between the parties relating to the subject
matter contained herein and merges all prior and contemporaneous discussions
between them. Neither party shall be bound by any definition, condition,
representation, warranty, covenant or provision other than as expressly
stated in or contemplated by this Agreement or as
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subsequently shall be set forth in writing and executed by an authorized
representative of the party to be bound. No modification or alteration of
this Agreement shall be binding or valid unless in writing and signed by the
party to be charged with such modification, alteration or agreement. No
waiver of any term, covenant or condition of this Agreement shall be
construed as a waiver of any other term, covenant or condition nor shall any
waiver of any default under this Agreement be construed as a continuing
waiver thereof or as a waiver of any other default.
14. The parties hereto acknowledge and agree that this is an agreement which is
not in any respect, nor for any purpose, to be deemed or construed to be an
admission or concession of any liability or wrongdoing by any party
whatsoever, and in connection therewith, neither this Agreement nor any
provision herein contained shall be deemed to be for the benefit of, or
confer any rights of any kind or nature whatsoever upon, any third party.
15. Any press releases or publicity in connection with the subject matter of
this Agreement shall require the approval of all parties, with the
understanding that Xxxxxx X. Xxxxxxxx has the authority to convey approvals
the Heirs to Xxxxxx.
16. Xxxxxx'x notices to the Heirs hereunder shall be sent to the attention of
Xxxxxx Xxxxxx at Xxxxx The Cat Productions, Inc., 000 Xxxxx 00 Xxxxx
Xxxxxxx, XX 00000, by mail or courier and by fax to (000) 000-0000; with a
copy to Xxxxxx X. Xxxxxxxx at Xxxxx The Cat Productions, Inc., 0000 Xxxxxx
Xxxxx, Xxxxxxxx, XX 00000, by mail or courier and by fax to (000) 000-0000,
with a copy to Xxxxx Xxxxxxxxx, 0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxxxxxx, XX
00000-0000, by mail or courier and by fax to (000) 000-0000. The Heirs
notices hereunder shall be sent to the attention of Xxxxx X. Xxxxxxxxxx,
Senior Vice President and General Counsel, The Xxxxxx Entertainment
Corporation, 00000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 000X, Xxx Xxxxxxx, XX
00000, by mail or courier and by fax to (000) 000-0000. The foregoing
addresses and fax numbers may be changed any affected party by appropriate
notice.
17. This Agreement shall inure to the benefit of, and shall be binding upon,
each of the parties hereto, and their respective heirs, executors,
administrators, assigns, successors-in-interest, representatives, trustees
and beneficiaries. This Agreement may be executed in counterparts, and each
counterpart shall constitute an original instrument, but all such separate
counterparts shall constitute only one and the same instrument.
[This Agreement is signed on the next page.]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the
date of the last party signing this Agreement as indicated below.
THE XXXXXX ENTERTAINMENT COMPANY XXXXXX COMICS, INC.
By______________________________ By______________________________
Its_____________________________ Its_____________________________
Signed: __________________, 2000 Signed:___________________, 2000
________________________________ ________________________________
Xxxxxxx Xxxxxx Xxxxxx Xxxxxx
Signed: __________________, 2000 Signed:___________________, 2000
________________________________ ________________________________
Xxxx Xxxxxx Xxxxxx Xxxxxx Xxxxxx
Signed: __________________, 2000 Signed: __________________, 2000
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