MUTUAL TERMINATION AGREEMENT
Exhibit 10.4
MUTUAL
TERMINATION AGREEMENT
This
MUTUAL TERMINATION AGREEMENT AND RELEASE (“Agreement”) dated as of March
31, 2009 (the "Effective
Date") is made and entered into by and between:
Live Current Media Inc., a
Nevada corporation having its principal office at 000 Xxxxx Xx., Xxxxx 000,
Xxxxxxxxx, XX Xxxxxx X0X 0X0 ("Live Current"),
and
Board of Control for Cricket in
India, a society registered under the Tamil Nadu Societies Registration
Act, 1860, having its principal office at Brabourne Stadium (North Stand), Veer
Nariman Road, Churchgate, Xxxxxx, Xxxxx 000000 ("BCCI"),
Live Current and BCCI are
sometimes collectively referred to herein as the "Parties" and each individually
as a "Party."
RECITALS
WHEREAS,
Live Current and BCCI entered into a Memorandum of Understanding dated April 16,
2008 (the "BCCI-MOU"),
pursuant to which BCCI appointed Live Current to design, build, host, operate,
maintain and promote the BCCI Website (the “Project”);
WHEREAS,
the BCCI wishes to take back control of the BCCI website and Live Current is
willing to hand back control;
NOW,
THEREFORE, in consideration of the mutual covenants and agreements set forth in
this Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties, intending to be
legally bound, agree as follows.
AGREEMENT
1. Definitions. (a)
Unless defined herein, capitalized terms have the meaning given to them in the
BCCI-MOU.
2. Termination of
BCCI-MOU. Live Current and BCCI hereby mutually agree that, as
of the Effective Date, the BCCI-MOU shall be terminated and will be of no
further force and effect and all rights and obligations of the Parties
thereunder shall be terminated.
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3. Effect of
Termination. Without prejudice to the generality of clause 2
above, upon execution of this Agreement, (a) all rights, licenses and benefits
granted to Live Current under the BCCI-MOU shall forthwith revert to BCCI;
(b) Live Current shall immediately cease to exercise or exploit any
such rights, licenses or benefits and BCCI shall immediately thereafter be
entitled to grant all or any such rights, licenses or benefits to any other
person; (c) Live Current shall not thereafter use or exploit its previous
connection with BCCI or any of the IPL, whether directly or indirectly; (d) Live
Current shall not at any time thereafter (i) disclose or use any confidential
information relating to BCCI, or the IPL acquired by Live Current during or as a
result of the BCCI-MOU; (ii) make any use of any trade marks, trade names and/or
logos of BCCI, the BCCI sponsors,or partners or any similar trade marks, trade
names and/or logos; (iii) purport to be associated with BCCI and/or the IPL; (d)
Live Current shall promptly return to BCCI all property of BCCI within its
possession, save that Live Current will be permitted to retain such property as
it demonstrates (to the BCCI’s reasonable satisfaction) to be required by law to
be maintained for records; (e) Live Current shall execute any
documents required by BCCI to effect the termination and/or assignment to BCCI
of any rights in connection with the BCCI-MOU;
4. No Other Outstanding
Obligations. The Parties hereby mutually agree and acknowledge that this
Agreement constitutes a full and final settlement of any and all historic and
future outstanding obligations due from Live Current under the BCCI-MOU and
there are no other outstanding payments under the BCCI-MOU due or owing of or
from Live Current as of the effective date of this Termination
Agreement.
5. Agreement Self-Executing. The
Parties further agree that this Agreement shall be self-executing and the
transaction contemplated herein shall be effected without the need for further
documentation.
6. Live Current’s Release of
BCCI. Live Current, on behalf of itself, its parents,
subsidiaries, affiliates, and their respective officers, directors, agents,
representatives, successors and assigns, does hereby unequivocally release and
discharge BCCI and any of its officers, directors, agents, managers, employees,
representatives, legal and financial advisors, parents, subsidiaries,
affiliates, sub-committee units, principals or partners, and any heirs,
executors, administrators, successors or assigns of any said person or entity
(the "BCCI Releasees"),
from any and all actions, causes of action, claims, suits, debts, dues, sums of
money, accounts, reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses, injuries, xxxxx,
damages, judgments, remedies, extents, executions, demands, liens and
liabilities whatsoever, in law, equity or otherwise (collectively, "Claims"), whether currently
known or unknown, arising under, in connection with or relating to, the BCCI-MOU
or the obligations contemplated thereby, any action or failure to act under the
BCCI-MOU or the events leading to the termination of the BCCI-MOU.
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7. BCCI’s Release of Live
Current. BCCI, on behalf of itself, its parents, subsidiaries,
affiliates, sub-committee units, and their respective officers, directors,
agents, representatives, successors and assigns, does hereby unequivocally
release and discharge Live Current and any of its officers, directors, agents,
managers, employees, representatives, legal and financial advisors, parents,
subsidiaries, affiliates, principals or partners, and any heirs, executors,
administrators, successors or assigns of any said person or entity (the "Live Current Releasees"), from
any and all actions, causes of action, claims, suits, debts, dues, sums of money
including the Accrued Liability and any and all Minimum Annual Fees, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, injuries, xxxxx, damages,
judgments, remedies, extents, executions, demands, liens and liabilities
whatsoever, in law, equity or otherwise (collectively, "Claims"), whether currently
known or unknown, arising under, in connection with or relating to, the BCCI-MOU
or the obligations contemplated thereby, any action or failure to act under the
BCCI-MOU, or the events leading to the termination of the
BCCI-MOU. It is acknowledged and accepted that this release from Live
Current’s accrued liabilities under the BCCI-MOU is conditional on the payment
by 1 July 2009 of US$750,000 due from Live Current to BCCI under the BCCI-MOU,
which payment shall be made by Global Cricket Ventures PTE Limited (“GCV) under
the Novation Agreement entered into by Live Current, BCCI (for and on behalf of
its separate sub-committed known as Indian Premier League) GCV and
simultaneously with this Mutual Termination Agreement. It is
acknowledged that the agreed termination hereunder is not conditional on such
payment being made by GCV.
8. Confidentiality and Publicity.
(a) No Party shall disclose (or permit or cause its employees, agents
or representatives to disclose), Confidential Information (as defined in the
BCCI) disclosed to it (including information disclosed during audit) by another
Party, to any other person, without the prior written consent of the other Party
to whom the duty of confidentiality is owed, Except That the Parties may
disclose any such Confidential Information: (a) if and to the extent required by
Law or for the purpose of any judicial proceedings; (b) if and to the extent
required by regulatory or governmental body to which that party is subject
including the U.S. Securities and Exchange Commission (“SEC’), only to the
extent that such requirement has the force of law; (c) to its professional
advisers (which shall include in the case of BCCI IMG), auditors and bankers,
and its (or its Affiliates') employees, agents or representatives; (d) if and to
the extent the information is or has come into the public domain through no
fault of that Party; and (e) if and to the extent the other Party has given
prior written consent to the disclosure. BCCI-IPL acknowledges that upon
execution of this Agreement, Live Current must disclose this Agreement and the
MOU to the SEC.
(b) Live
Current and BCCI agree to cooperate with respect to the form and content of a
joint press release to be issued by Live Current and BCCI on the signing of this
Agreement with respect to the termination of the BCCI and this
Agreement. Neither Live Current nor GCV shall release any press
release relating to the BCCI or this Agreement without BCCI’s prior written
approval, not to be unreasonably withheld or delayed.
9. Representations of the
Parties. Live Current and BCCI each represent to the other Party that:
(a) it is duly organized and validly existing under the laws of the jurisdiction
of its incorporation and is in good standing; (b) it has power to execute and
perform its obligations under this Agreement and has taken all necessary action
to authorize such execution, delivery and performance; (c) such execution,
delivery and performance do not violate or conflict with any law applicable to
it, any provision of its charter or bylaws, any order or judgment of any court
or other agency of government applicable to it or any of its assets or any
contractual restriction binding on or affecting it or any of its assets; (d) all
governmental and other consents that are required to have been obtained by it
with respect to this Agreement have been obtained and are in full force and
effect and all conditions of any such consents have been complied with; and (e)
its obligations under this Agreement constitute its legal, valid and binding
obligations, enforceable in accordance with their respective terms.
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10. Waiver. Any term of this
Agreement may be waived at any time by the Party that is entitled to the benefit
thereof, but no such waiver shall be effective unless set forth in a written
instrument duly executed by or on behalf of the Party waiving such term or
condition. No waiver by any Party of any term or condition of this Agreement, in
any one or more instances, shall be deemed to be or construed as a waiver of the
same or any other term or condition of this Agreement on any future occasion.
All remedies, either under this Agreement or by any laws or otherwise afforded,
will be cumulative and not alternative.
11. Amendment. This Agreement may
be amended, supplemented or modified only by a written instrument duly executed
by or on behalf of each Party hereto.
12. Binding Effect. This Agreement
is binding upon, inures to the benefit of and is enforceable by the Parties and
their respective successors and assigns.
13. Entire Agreement. This
Agreement supercedes all prior discussions, representations, warranties and
agreements, both written and oral, among the Parties with respect to the subject
matter hereof, and contains the sole and entire agreement among the Parties with
respect to the subject matter hereof. No prior drafts of this Agreement and no
words or phrases from any such prior drafts shall be admissible into evidence in
any action, suit or other proceeding involving this Agreement.
14. Headings. The headings used in
this Agreement have been inserted for convenience of reference only and do not
define or limit the provisions hereof.
15. Invalid Provisions. If any
provision of this Agreement is held to be illegal, invalid or unenforceable
under any present or future laws, and if the rights or obligations of any Party
hereto under this Agreement will not be materially and adversely affected
thereby, (a) such provision will be fully severable, (b) this Agreement will be
construed and enforced as if such illegal, invalid or unenforceable provision
had never comprised a part hereof, and (c) the remaining provisions of this
Agreement will remain in full force and effect and will not be affected by the
illegal, invalid or unenforceable provision or by its severance
herefrom.
16. Governing Law.
(a) This Agreement shall be governed by and construed in accordance
with the substantive laws of India. Any dispute arising out of or in
relation to this Agreement involving the interpretation or implementation of the
Clauses of this Agreement, or the breach, termination or validity thereof, shall
be resolved in accordance with the procedures specified in this Clause which
shall be the sole and exclusive procedure for the resolution of any and all such
disputes before seeking recourse to Arbitration.
(b) The
Parties shall attempt in good faith to resolve any dispute arising out of or
relating to this Agreement promptly by good faith negotiations for a period of
twenty-one (21) days from date of issuance of written notice that a dispute has
arisen.
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(c) Any
dispute which has not been resolved as provided herein within 21 days of the
initiation of such procedure, shall be settled exclusively by arbitration in
Mumbai India, in accordance with ARBITRATION AND CONCILIATION ACT,
1996. The arbitration tribunal shall consist of 3 arbitrators, with
each party designating one arbitrator and the said chosen arbitrators
designating the third arbitrator. The place of arbitration in India shall be in
Mumbai, and the language of arbitration shall be English. The arbitrators are
not empowered to award damages in excess of compensatory damages and each party
hereby irrevocably waives any right to recover such damages with respect to any
dispute resolved by arbitration.
(d) The
Parties hereby agree any award of the tribunal shall be enforced in any court of
competent jurisdiction in Mumbai.
17. Counterparts. This Agreement
may be executed via facsimile transmission and in counterparts, each of which
will be deemed an original, but all of which together will constitute one and
the same instrument.
IN
WITNESS WHEREOF, Live Current and BCCI have caused this Mutual Termination
Agreement and Release to be duly executed as of the date first above written by
their respective officers duly authorized.
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By:
/s/ Xxxx
Xxxxxxxx
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Witnessed
by: /s/ Xxx
Xxxxxxx
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Xxxx
Xxxxxxxx
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BOARD
OF CONTROL FOR CRICKET IN INDIA
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By: /s/ Xxxxx
Xxxx
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Witnessed
by: /s/ X. X.
XxXxxxxxxx
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Xxxxx
Xxxx
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