Table of
Contents
Execution Copy
AGREEMENT AND
RELEASE
This Agreement and Release (this
‘‘Agreement’’ or
‘‘Release’’) is made and entered on this
17th day of February, 2006 (the ‘‘Effective
Date’’), by and among Majesco Entertainment Company
(‘‘Majesco’’) and Terminal Reality Inc.
(‘‘TRI’’). The entities listed above as
making and entering this Agreement shall hereinafter be referred to
collectively as the
‘‘parties.’’
The parties hereto agree to and do
enter into this Agreement for the purpose of settling all claims,
controversies, and disputes between and among the
parties.
In consideration of the mutual
promises contained herein, the parties hereto, intending to be
legally bound, hereby agree as follows:
1.
RELEASE AND DISCHARGE . For and in
consideration of the promises made herein and other good and
valuable consideration, TRI forever and completely releases and
discharges Majesco and its past, present, and future officers,
directors, stockholders, servants, representatives, partners,
assigns, agents, attorneys, employees, subsidiaries, affiliates and
successors and predecessors in interest (‘‘Majesco
Releasees’’) of and from any and all manner of action,
cause of action, suit, claim , and demand whatsoever, known
or unknown, in law or equity, which TRI ever had or now has against
Majesco Releasees, related or connected to, or which in any way
arises out of , the design and development of the video game
titled ‘‘Demonik’’ (the
‘‘Product’’), the Letter of Intent between
Majesco and TRI, dated May 3, 2004, as amended, for the design and
development of the Product or any other agreement relating to the
Product.
2. NO
ADMISSION OF LIABILITY . The parties to
this Agreement agree that neither the execution of this Release,
nor the agreement to or statement of any terms embodied herein,
shall constitute an admission of wrongdoing by either
party.
3.
CONSIDERATION
a. Majesco
will pay to TRI $250,000 in six monthly installments beginning on
the Effective Date and due on the 17th of each month thereafter,
with the first five installments in the amount of $42,000 and the
final installment in the amount of $40,000.
b. Majesco
shall grant to TRI that number of shares of Majesco common Stock
(the ‘‘Shares’’) equal to $125,000 divided
by the Share Price (as defined below).
For purposes hereof, the
‘‘Share Price’’ shall mean the average
closing price of Majesco's common stock for the 30 trading days
immediately prior to the Effective Date multiplied by
.95.
c. Majesco
will file a registration statement covering the Shares within 60
days of the Effective Date. Majesco will use best efforts to cause
the registration statement to become effective within 120 days of
the Effective Date; provided that there shall be no penalty
associated with a failure to have such registration statement
effective within such time period.
d. Majesco
hereby assigns and conveys to TRI all of Majesco's rights, title
and ownership in the Demonik name, characters, copyrights, moral
rights, trade names, and trademarks.
4.
REPRESENTATIONS AND WARRANTIES OF TRI
a.
Investment . TRI is acquiring the
Shares for its own account, not as a nominee or agent, and not with
a view to, or for sale in connection with, any distribution
thereof. TRI understands that the Shares have not been registered
under the Securities Act of 1933, as amended (the
‘‘Securities Act’’), or any state
securities laws, by reason of specific exemptions from the
registration provisions of the Securities Act and such laws that
may depend upon, among other things, the bona fide nature of
TRI's investment intent as expressed herein. TRI is an
‘‘accredited investor’’ as defined in Rule
501 of Regulation D adopted under the Securities
Act.
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b.
Access to Information . TRI has had
adequate opportunity to ask questions of and receive answers from
the Majesco and its officers concerning the terms and conditions of
the receipt of the Shares. TRI has further had an opportunity to
inspect and copy all material documents related to Majesco,
including, but not limited to, the Majesco's certificate of
incorporation and bylaws and to obtain any additional information
that is necessary to verify the accuracy of the information TRI has
received.
c.
Experience . TRI has substantial
experience in evaluating and investing in transactions of
securities and TRI acknowledges that it is capable of evaluating
the merit
