SETTLEMENT AND MUTUAL RELEASE AGREEMENT
|
SETTLEMENT
AND MUTUAL RELEASE
AGREEMENT
|
XXXXX
XXXXX
and
October
16, 2007
SETTLEMENT
AND MUTUAL RELEASE AGREEMENT
I
PARTIES
THIS
SETTLEMENT AND MUTUAL
RELEASE AGREEMENT (the “Agreement”) is entered into with an effective
date of the 16th day of
October,
2007 (“Effective Date”), by and between XXXXX XXXXX, an individual residing in
the State of California (“Xxxxx”); and, SVI MEDIA, INC.,
a Nevada corporation formerly known as OXFORD MEDIA, INC. (“SVI”). Xxxxx and SVI
are sometimes referred to collectively herein as the “Parties”, and each
individually as a “Party”.
II
RECITALS
X. Xxxxx
was employed by SVI as its Chief Executive Officer (“CEO”) in order to render
services generally associated with the CEO of a public company similar in size
to SVI.
X.xxxxxxxxxxxxxxxxx Xxxxx’x
employment with SVI was subject to a written Executive Employment Agreement
effective 15 February 2007 (the “Employment Agreement”), providing the terms and
conditions of Xxxxx’x employment with SVI.
X. Xxxxx
also currently serves as a member of the Board of Directors of SVI (the “SVI
Board”).
X. Xxxxx
desires to tender his resignation as the CEO of SVI and terminate his employment
relationship with SVI, with said termination to have an effective date of 31
October 2007.
X. Xxxxx
also desires to resign from the SVI Board, with said resignation to be effective
as of and on the 17th day of
October
2007.
F. The
Parties mutually desire to have Xxxxx voluntarily terminate his employment
relationship without dispute or cause, effective as of 31 October 2007 (the
“Employment Termination Date”), and to terminate his status as a member of the
Board effective as of 17 October 2007 (the “Board Termination Date”). SVI
conditionally agrees to the terms and conditions of this Agreement provided
Xxxxx: (i) enters into and complies with all of the terms and conditions of
this
Agreement, including but not limited to the provision of assurances to SVI
that
he will not assert any claims of any kind against SVI arising out of the
Employment Agreement and his status as a member of the SVI Board; and, (ii)
abides by and honors his obligations to maintain and protect the Trade Secrets
and Confidential Information of SVI and its affiliates, subsidiaries,
predecessors, parents, related businesses and entities.
1
X. Xxxxx
conditionally offers to voluntarily terminate his employment relationship with
SVI without dispute, effective as of the Employment Termination Date, and to
terminate his status as a member of the SVI Board effective as of the Board
Termination Date, in exchange for valid consideration to be transferred by
SVI
hereunder, so long as SVI enters into and complies with all of the terms and
conditions of this Agreement, including but not limited to the provision of
assurances to Xxxxx that SVI will not assert any claims of any kind against
Xxxxx arising out of Xxxxx’x employment with SVI and his status as a member of
the SVI Board.
H. The
Parties agree that so long as both Parties satisfy their respective obligations
hereunder that the Employment Agreement will be terminated in all respects
except as otherwise expressly provided for herein, and both Parties will waive
any and all rights, remedies, and recoveries under the Employment
Agreement.
I. This
Agreement shall specifically encompass all claims and related factual and legal
circumstances noted above (collectively, the “Claims”). As such, it is the
intent of the Parties that their respective rights and obligations to each
other
from this day forward shall be determined exclusively under the terms of this
Agreement, and that this Agreement supersedes, amends and restates any other
employment agreements between the Parties.
J. All
Parties are desirous of settling the Claims and releasing each other from all
future liability.
K. NOW,
THEREFORE, in consideration of the promises and the mutual covenants
contained herein, and for other good and valuable consideration, the receipt
and
sufficiency of which are hereby acknowledged, the Parties, intending to be
legally bound, hereby agree as follows:
III
RELEASE
3.1 Exchange.
In consideration of the execution of this Agreement, the payments and
obligations described below to be made or satisfied, as appropriate, by SVI,
the
satisfaction of the obligations of each of the respective Parties hereunder,
and
other good and valuable consideration, the receipt and value of which is hereby
confirmed, Xxxxx on the one hand, and SVI on the other hand, shall hereby fully,
finally and forever settle and release each other from any and all claims,
losses, fines, penalties, damages, demands, judgments, debts, obligations,
interests, liabilities, causes of action, breaches of duty, costs, expenses,
judgments and injunctions of any nature whatsoever, whether known or unknown,
arising out of or related to the relationships between the Parties prior to
the
Effective Date, specifically including, but not limited to, the Claims
(cumulatively referred to as the “Released Claims”).
3.2 Complete
Release and Hold Harmless. All Parties, for themselves, itself,
their heirs, executors, administrators, successors, and assigns, hereby agree
to
release, discharge and hold harmless each other and the other’s directors,
employees, shareholders, managers, officers, members, affiliates, subsidiaries,
predecessors, parents, related businesses and entities, attorneys and each
of
their successors and assigns from any and all known and unknown claims of every
nature and kind whatsoever which they now or hereafter may have with respect
to
each other and/or the Claims, notwithstanding Section 1542 of the California
Civil Code, which provides that:
2
|
"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,
AND
WHICH IF KNOWN BY HIM, MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT
WITH
THE DEBTOR."
|
All
rights under §1542 of the
California Civil Code, as well as under any other statutes or common law
principles of similar effect, are hereby expressly, fully, knowingly,
intentionally and forever waived and relinquished by the Parties. Each Party
hereby acknowledges that each understands the significance and consequences
of
such waiver under §1542 of the California Civil Code, and that each had the
opportunity to seek the advice of legal counsel of its choice.
3.3 Scope
of Xxxxx’x Release. Xxxxx further expressly understands that the
rights being waived hereunder specifically include, but are not limited to,
any
and all claims under (as any of the same may be amended from time to time)
Title
VII of the Civil Rights Act of 1964; Sections 1981 and 1983 of the Civil Rights
Act of 1866; Equal Pay Act; Americans with Disabilities Act; Age Discrimination
in Employment Act; Employee Retirement Income Security Act; Fair Labor Standards
Act; Family and Medical Leave Act; WARN Act; the United States and California
Constitutions; California Fair Employment and Housing Act; California Family
Rights Act; California Labor Code; any applicable California Industrial Welfare
Commission Wage Order; with respect to the foregoing constitutional and
statutory references, any comparable constitution, statute or regulation of
any
other state; all claims of discrimination or harassment on account of race,
sex,
sexual orientation, national origin, religion, disability, age, pregnancy,
veteran’s status, or any other protected status under any federal or state
statute; any federal, state or local law enforcing express or implied employment
contracts or covenants of good faith and fair dealing; any federal, state or
local laws providing recourse for alleged wrongful discharge or constructive
discharge, termination in violation of public policy, tort, physical or personal
injury, emotional distress, fraud, negligent misrepresentation, defamation,
and
any similar or related claim; together with any claim under any other local,
state or federal law or constitution governing employment, discrimination or
harassment in employment, or the payment of wages or benefits, whether or not
now known, suspected or claimed, which Xxxxx ever had, now has, or may claim
to
have in the future as of the date of this Agreement. This Agreement and
the scope of the release by Xxxxx hereunder expressly includes any statutory
claims, including, but not limited to, claims under the Age Discrimination
in
Employment Act (the “ADEA”) and the Older Workers’ Benefit Protection Act
(“OWBPA”), except that this Agreement does not waive rights or claims under the
ADEA which may arise after the Effective Date of this
Agreement.
3.4 After
Acquired Information. The Parties acknowledge that they may
hereafter discover information, facts, or circumstances different from or in
addition to those which they now know or believe to be true. Except as otherwise
provided herein to the contrary, this Agreement shall remain in full force
and
effect in all respects notwithstanding such discovery, and the Parties expressly
accept and assume the risk of such possible additions to or differences from
those facts now known or believed to be true.
3.5 Enforceability.
The enforceability of this Agreement is conditioned upon each respective Party
satisfying its respective obligations hereunder.
3.6 Assignment
of Released Claims. The Parties hereby covenant that none of the
Released Claims has been assigned to any other person, and that no other person
has any interest in any of the Released Claims. In the event any other person
asserts any interest with respect to the Released Claims, then the Party
breaching this covenant shall fully defend and indemnify the Party against
whom
such claim is asserted for any and all damages, costs, and fees of any
kind.
3
3.7 Specific
Exclusion. It is expressly understood that the release contained in
this Agreement does not encompass or include any of the following:
(a) The
promises and obligations of the Parties under this Agreement.
(b) The
promises and obligations of Xxxxx under the Employment Agreement intended to
survive termination, as reflected in Section 6.5, below.
(c) The
intentionally willful, tortious, or criminal acts of either Party after the
execution of this Agreement.
3.8 No
Admission of Liability. Notwithstanding the terms and conditions of
this Agreement, execution hereof shall in no manner or form constitute the
admission of liability or responsibility of either Party in respect to the
Claims.
IV
TERMINATE
OF EMPLOYMENT AND BOARD RELATIONSHIP
4.1 Voluntary
Termination of Employment. The Parties agree that Xxxxx has
voluntarily terminated his employment with SVI, and that his last day of
employment by and with SVI shall be deemed to be the 31st day of
October,
2007. As of the Employment Termination Date and as additional consideration
hereunder, Xxxxx shall have voluntarily resigned any and all positions he held
in and with SVI. Notwithstanding the Employment Termination Date, the Employment
Agreement shall be deemed to be terminated, except for those provisions
contained therein which specifically are to survive termination, as of and
on
the Effective Date.
4.2 Voluntary
Resignation from the SVI Board. The Parties agree that Xxxxx has
voluntarily resigned from the SVI Board, and that his resignation shall be
effective as of 17 October 2007. As of the Board Termination Date and as
additional consideration hereunder, Xxxxx shall have voluntarily resigned from
the SVI Board, and SVI shall continue to provide and afford Xxxxx with all
indemnification protection as was in place at the time of the Board Termination
Date. The Parties agree that no other amounts of any kind are owed by SVI to
Xxxxx in regard to his tenure as a member of the SVI Board
4.3 Payment
of Amounts Owed to Xxxxx. The Parties hereby agree to the following
payments which shall represent all amounts due Xxxxx for unpaid and accrued
wages and benefits, if applicable, including but not limited to sick leave,
vacation time, severance, and all other amounts which may be due to Xxxxx from
SVI hereafter under the Employment Agreement, and Xxxxx shall neither make,
nor
be entitled to any other amounts:
4.3.1. Accrued
Salary. The Parties agree that the total amount of accrued salary
owed to Xxxxx is Ninety Two Thousand Five Hundred Seventy Six Dollars and Ninety
Two Cents ($92,576.92), which amount is referred to herein as the “Accrued
Salary”. The Accrued Salary will continue to be owed by SVI to Xxxxx, without
imposition of any interest or further amounts, and will be due and immediately
payable upon the earlier of the following to occur: (i) the sale of
substantially all of SVI’s assets or outstanding shares of stock; or, (ii) SVI
reports that it is profitable in any Form 10K or 10Q filed with Securities
and
Exchange Commission.
4
4.3.2. Accrued
Vacation Pay. The Parties agree that the total amount of accrued
vacation pay owed to Xxxxx is Twenty Five Thousand Eight Hundred Twenty Three
Dollars ($25,823), which amount is referred to herein as the “Accrued Vacation”.
The Accrued Vacation will continue to be owed by SVI to Xxxxx, without
imposition of any interest or further amounts, and will be paid, in-full, on
or
before 05 November 2007.
4.3.2. Health
Insurance Coverage. The Parties hereby agree that as additional
consideration hereunder, SVI, at its sole cost and expense, shall maintain
in
full force and effect the health insurance benefits provided to Xxxxx for a
period of twelve (12) months from the Effective Date. Thereafter, such coverage
shall terminate, unless Xxxxx makes a proper election to continue such coverage
under COBRA, in which case all such benefits shall be at his sole cost and
expense. Any and all other coverage of any kind extending beyond the terms
and
conditions of this Agreement will be solely at the expense of Xxxxx and subject
to the terms and conditions of the documents governing the medical plan. It
is
the sole responsibility of Xxxxx to comply with said terms and conditions,
and
SVI will have no liability for the future failure of Xxxxx to acquire COBRA
coverage.
4.4 Express
Waiver of Any Other Amounts. Xxxxx hereby acknowledges that he is
not entitled to receive, and will not claim, any damages, rights, benefits,
or
compensation other than as expressly set forth in this Agreement. Specifically,
no vacation, benefits, earned or paid time off, or other accrual-based benefits
of any kind (“Post Termination Benefits”) will accrue, vest or otherwise be
credited to Xxxxx after the Effective Date. Xxxxx expressly waives, foregoes,
and denies any right or claim to such Post Termination Benefits and acknowledges
that no compensation, remuneration, or other form of payment or benefit is
forthcoming based thereon, other than as the Parties expressly agree under
Article V, below.
V
CONTINUED
SERVICES
5.1 Transition
Period. The Parties have agreed that Xxxxx’x employment will
terminate as of and on the Employment Termination Date. During and throughout
the period commencing on the Effective Date and continuing up to and until
the
Employment Termination Date (the “The Transition Period”), the Parties shall be
bound by the following:
(a) During
the Transition Period SVI shall pay to Xxxxx the base salary, at the same
intervals, as in effect as of the Effective Date, with said base salary
guaranteed during the Transition Period unless Xxxxx shall terminate his
employment prior to the end of the Transition Period. It is expressly understood
that the base salary does not include any other benefits or allowances (such
as
a car allowance or a phone allowance, for example), and that no such payments
will be made to SVI to Xxxxx unless expressly agreed upon by the Parties in
writing.
(b) Xxxxx
shall render those services to SVI during the Transition Period as instructed
by
the SVI Board.
5
5.2 Contractor
Services. Subsequent to the Employment Termination Date Xxxxx may
render services to SVI in the capacity as an “independent contractor” (as that
term is commonly defined in a business and tax context), with the Parties
further bound by the following with regard to such services and relationship
(the “Contractor Services”):
(a) Such
Contractor Services shall be rendered at the express agreement of the Parties,
with no obligation on either Party to enter into such Contractor
Services.
(b) All
Contractor Services shall be defined by the SVI Board, with Xxxxx compensated
as
an independent contractor at a rate equal to Xxxxx’x base salary as of the
Effective Date, paid in accordance with SVI’s then payroll
policies.
(c) The
Contractor Services shall be rendered, if at all, on a week-to-week basis,
terminable at-will at any time by either Party.
VI
CONFIDENTIALITY
AND BUSINESS RELATED PROVISIONS
6.1 Non-Disclosure
of Business Information. Xxxxx shall not at any time, either
directly or indirectly use, divulge, disclose or communicate to any person,
firm, or corporation, in any manner whatsoever, any confidential information
concerning any matters affecting or relating to the business of SVI, including,
but not limited to, the names, buying habits, or practices of any of its
customers, its marketing methods and related data, the names of any of its
vendors or suppliers, costs of materials, the prices it obtains or has obtained
or at which it sells or has sold its products or services, manufacturing and
sales, costs, lists or other written records used in SVI's business,
compensation paid to employees and other terms of employment, or any other
confidential information of, about or concerning the business of SVI, its manner
of operation, or other confidential data of any kind, nature, or description.
The Parties hereby stipulate that as between them, the foregoing matters are
important, material, and confidential trade secrets and affect the successful
conduct of the SVI's business and its goodwill, and that any breach of any
term
of this paragraph is a material breach of this Agreement.
6.2 Non-Solicitation
of Employees. During and continuing for a period of three (3) years
after the Effective Date of this Agreement, Xxxxx shall not, directly or
indirectly, cause or induce, or attempt to cause or induce, any employee of
SVI
to terminate his or her employment with SVI, as such employment exists at any
time following the Effective Date.
6.3 Return
of Materials. Prior to execution of this Agreement Xxxxx delivered
to SVI all property, to the best of Xxxxx’x knowledge, in his possession and
which were required to be returned to SVI under this Agreement. Xxxxx shall
promptly deliver to SVI all further equipment, notebooks, documents, memoranda,
reports, files, samples, books, correspondence, lists, computer disks and data
bases, computer programs and reports, computer software, and all other written,
graphic and computer generated or stored records relating to the business of
SVI
which are or have been in the possession or under the control of
Xxxxx.
6
6.4 No
Disparaging Remarks. Neither Party shall make, or cause to be made,
any statement or communicate any information (whether oral or written) that
disparages or reflects negatively on the other or any of the parties released
hereunder. Nothing herein shall
preclude either Party from complying with a subpoena or other lawful
process.
6.5 Nondisclosure
of Trade Secret/Confidential Information. Xxxxx shall not at any
time, whether during or subsequent to the execution of this Agreement, unless
specifically consented to in writing by SVI, either directly or indirectly
use,
divulge, disclose or communicate to any person, firm, or corporation, in any
manner whatsoever, any Confidential Information concerning any matters affecting
or relating to the business of SVI, including, but not limited to, the names,
buying habits, or practices or Confidential Information of any of its customers,
Customer Accounts, its marketing methods and related data, the names of any
of
its vendors or suppliers, costs of materials, the prices it obtains or has
obtained or at which it sells or has sold its products or services,
manufacturing and sales, costs, lists or other written records used in SVI’s
business, operations, production, facilities, equipment, machinery, processes,
formulas, engineering, programs, methods, intellectual property, patents,
trademarks, licensed marks, trade names, service marks (collectively,
“Intellectual Property”), compensation paid to employees and other
terms of employment, or any other Confidential Information of, about or
concerning the business of SVI , its manner of operation, or other confidential
data of any kind, nature, or description. The Parties hereby stipulate that
as
between them, all of the foregoing matters shall be referred to as “Confidential
Information”, and are important, material, and confidential business “Trade
Secrets” and affect the successful conduct of the SVI’s business and its
goodwill, and that any breach of any term of this Section 6.5 is a material
breach of this Agreement giving rise to immediate termination
thereof.
6.5.1. “Customer
Accounts”. As used herein, the term “Customer Accounts” shall mean
all accounts of SVI and its affiliates, related businesses, predecessors,
successors, subsidiaries, licensees, and business associations, whether now
existing or hereafter developed or acquired, including any and all accounts
developed or acquired by or through the efforts of Xxxxx. Without
regard to whether any of the matters in this Agreement would otherwise be deemed
confidential, material, or important, the Parties hereto stipulate that as
between them the matters stated as Confidential Information in this Agreement
are confidential, material, and important and gravely affect the effective
and
successful conduct of the business of SVI or its goodwill and that any breach
of
the terms of this Section 6.5 will be a material breach of this Agreement and
shall constitute grounds for immediate termination thereof.
6.5.2. Misuse
of Confidential Information. In the event that Xxxxx breaches
this Agreement and releases SVI Confidential Information or Trade Secrets,
Xxxxx
shall fully indemnify, defend, pay, save, and hold SVI harmless from any and
all
claims, costs, judgments, and damages, including reasonable attorney's fees
and
expenses of council, which are incurred as a direct or indirect consequence
thereof.
6.5.3. Proprietary
Rights. Xxxxx acknowledges SVI’s exclusive right, title and
interest in and to its Intellectual Property, Confidential Information, Trade
Secrets and registrations and the goodwill of the business symbolized thereby
(collectively, “Proprietary Rights”) and will not, at any time, do or cause to
be done any act or thing contesting or in any way impairing or tending to impair
any part of SVI’s right, title, ownership and interest therein.
7
VII
ADDITIONAL
REPRESENTATIONS AND OBLIGATIONS
7.1 Consideration
Period. This Agreement has been delivered to Xxxxx on the 30th
day of September,
2007. Xxxxx shall have twenty-one (21) days to consider and sign this Agreement.
Pursuant to Section 7.3, below, Xxxxx has been encouraged to seek legal counsel
to consider and review this Agreement. To the extent Xxxxx does not use the
full
21-days within which to consider signing this Agreement, Xxxxx’x signature
hereto shall serve as Xxxxx’x express written waiver of this period and of any
and all claims, rights, or causes of action of any kind against SVI of any
kind
arising out of Xxxxx’x voluntary decision to execute this Agreement and waive
this consideration period.
7.2 Revocation
Period. Upon execution of this Agreement, Xxxxx shall have seven
(7) days to revoke the Agreement. Any such revocation by Xxxxx must be in
writing and delivered to SVI pursuant to the notice requirements under Article
VIII, below. If timely revoked by Xxxxx, this Agreement will not be effective
or
enforceable, and all Parties shall be immediately released of all obligations
hereunder, with no affect on any of the claims each Party may otherwise
possess.
7.3 Independent
Legal Counsel. The Parties to this Agreement warrant, represent,
and agree that in executing this Agreement, they do so with full knowledge
of
the rights each may have with respect to the other Party, and that each has
received, or has had the opportunity to receive, independent legal advice as
to
these rights. Each of the Parties has executed this Agreement with full
knowledge of these rights, and under no fraud, coercion, duress, or undue
influence.
7.4 Waiver
of Age Discrimination Claim. Xxxxx understands that the release
contained in this Agreement had to meet certain requirements to constitute
a
valid release of any claims under the Age Discrimination in Employment Act
(“ADEA”), and Xxxxx hereby represents that all such requirements were in fact
satisfied. These requirements required the following, each of which has in
fact
been satisfied: (i) execution of this Agreement by Xxxxx has been knowing and
voluntary, and free from duress, coercion and mistake of fact; (ii) this
Agreement is in writing and is understandable; (iii) this Agreement has waived
current ADEA claims explicitly; (iv) this Agreement has not waived future ADEA
claims; (v) the release by Xxxxx hereunder of ADEA claims has been paid for
with
something to which Xxxxx was not already entitled; (vi) this Agreement has
advised Xxxxx to consult an attorney; (vii) this Agreement has given Xxxxx
twenty-one (21) days to consider the ADEA release contained in this Agreement;
and, (viii) this Agreement has given Xxxxx seven (7) days within which to revoke
the ADEA release contained in this Agreement after execution.
7.5 Public
Reporting. During and throughout the Transition Period Xxxxx shall
continue to timely execute for filing all documents required to be filed by
SVI
under the applicable rules and regulations of the Securities and Exchange
Commission.
VIII
ADDITIONAL
PROVISIONS
8
8.1 Executed
Counterparts. This Agreement may be executed in
any number of counterparts, all of which when taken together shall be considered
one and the same agreement, it being understood that all Parties need not sign
the same counterpart. In the event that any signature is delivered by fax or
by
e-mail delivery of a “.pdf” format data file, such signature shall create a
valid and binding obligation of the Party executing (or on whose behalf such
signature is executed) with the same force and effect as if such facsimile
or
“.pdf” signature page were an original thereof. Each of the Parties hereby
expressly forever waives any and all rights to raise the use of a fax machine
or
E-Mail to deliver a signature, or the fact that any signature or agreement
or
instrument was transmitted or communicated through the use of a fax machine
or
E-Mail, as a defense to the formation of a contract.
8.2 Successors
and Assigns. Except as expressly provided in this Agreement, each
and all of the covenants, terms, provisions, conditions and agreements herein
contained shall be binding upon and shall inure to the benefit of the successors
and assigns of the Parties hereto.
8.3 Article
and Section Headings. The article and section headings used in this
Agreement are inserted for convenience and identification only and are not
to be
used in any manner to interpret this Agreement.
8.4 Severability.
Each and every provision of this Agreement is severable and independent of
any
other term or provision of this Agreement. If any term or provision hereof
is
held void or invalid for any reason by a court of competent jurisdiction, such
invalidity shall not affect the remainder of this Agreement.
8.5 Governing
Law. This Agreement shall be governed by the laws of the State of
California, without giving effect to any choice or conflict of law provision
or
rule (whether of the State of California or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the State
of
California. If any court action is necessary to enforce the terms and conditions
of this Agreement, the Parties hereby agree that the Superior Court of
California, County of Orange, shall be the sole jurisdiction and venue for
the
bringing of such action.
8.6 Entire
Agreement. This Agreement, and all references, documents, or
instruments referred to herein, contains the entire agreement and understanding
of the Parties hereto in respect to the subject matter contained herein. The
Parties have expressly not relied upon any promises, representations,
warranties, agreements, covenants, or undertakings, other than those expressly
set forth or referred to herein. This Agreement supersedes any and all prior
written or oral agreements, understandings, and negotiations between the Parties
with respect to the subject matter contained herein.
8.7 Additional
Documentation. The Parties hereto agree to execute, acknowledge,
and cause to be filed and recorded, if necessary, any and all documents,
amendments, notices, and certificates which may be necessary or convenient
under
the laws of the State of California.
8.8 Attorney’s
Fees. If any legal action (including arbitration) is necessary to
enforce the terms and conditions of this Agreement, the prevailing Party shall
be entitled to costs and reasonable attorney’s fees.
8.9 Amendment.
This Agreement may be amended or modified only by a writing signed by all
Parties.
8.10 Remedies.
9
8.10.1. Specific
Performance. The Parties hereby declare that it is impossible to
measure in money the damages which will result from a failure to perform any
of
the obligations under this Agreement. Therefore, each Party waives the claim
or
defense that an adequate remedy at law exists in any action or proceeding
brought to enforce the provisions hereof.
8.10.2. Cumulative.
The remedies of the Parties under this Agreement are cumulative and shall not
exclude any other remedies to which any person may be lawfully
entitled.
8.11 Waiver.
No failure by any Party to insist on the strict performance of any covenant,
duty, agreement, or condition of this Agreement or to exercise any right or
remedy on a breach shall constitute a waiver of any such breach or of any other
covenant, duty, agreement, or condition.
8.12 Assignability.
This Agreement is not assignable by either Party without the expressed written
consent of all Parties.
8.13 Notices.
All notices, requests and demands hereunder shall be in writing and delivered
by
hand, by facsimile transmission, by mail, by telegram or by recognized
commercial over-night delivery service (such as Federal Express, UPS or DHL),
and shall be deemed given (a) if by hand delivery, upon such delivery; (b)
if by
facsimile transmission, upon telephone confirmation of receipt of same; (c)
if
by mail, forty-eight (48) hours after deposit in the United States mail, first
class, registered or certified mail, postage prepaid; (d) if by telegram, upon
telephone confirmation of receipt of same; or, (e) if by recognized commercial
over-night delivery service, upon such delivery.
8.14 Time.
All Parties agree that time is of the essence as to this Agreement.
10
8.15 Agreement
to Arbitrate. THE PARTIES HEREBY AGREE TO WAIVE UNCONDITIONALLY AND
IRREVOCABLY THE RIGHT TO TRIAL BY JURY IN CONNECTION WITH ANY LITIGATION THAT
MAY AT ANY TIME, DIRECTLY OR INDIRECTLY, ARISE OUT OF OR IN CONNECTION WITH
ANY
ASPECT OF THE RELATIONSHIP BETWEEN XXXXX AND SVI, ITS OFFICERS, AGENTS AND
EMPLOYEES, INCLUDING BUT NOT LIMITED TO THE TERMINATION OF XXXXX’X EMPLOYMENT,
RIGHTS AND DUTIES AS A SHAREHOLDER, OR YOUR EMPLOYMENT WITH SVI, TO THE EXTENT
LEGALLY ALLOWABLE. This means that both Parties irrevocably, unconditionally,
and exclusively agree that any controversy or claim arising out of or relating
to Xxxxx’x employment which cannot be otherwise resolved pursuant to the terms
hereof, or any dispute between the Parties, shall be resolved by binding
arbitration in Orange County, California. The arbitration shall be administered
by Judicial Arbitration and Mediation Services, the Company (“JAMS”), or another
mutually agreed upon neutral service, in its Orange County office. The
arbitrator shall be a retired Superior Court Judge of the State of California
affiliated with JAMS. Judgment upon the award rendered by the arbitrator may
be
entered and enforced in any court having jurisdiction thereof. THE AWARD OF
THE
ARBITRATOR SHALL BE BINDING, FINAL, AND NON-APPEALABLE. The arbitrator shall
not
have any power to alter, amend, modify, or change any of the terms of this
Agreement, the Employment Agreement, the Convertible Note, or the Supplemental
Agreement, or to grant any remedy which is either prohibited by the terms of
this Agreement or not available in a court of law. Any action brought to enforce
the provisions of this section shall be brought in the Orange County Superior
Court. All other questions regarding Xxxxx’x employment, including but not
limited to the interpretation, enforcement of this Agreement (other than the
right to arbitrate), and the rights, duties and liabilities of the parties
to
Xxxxx’x employment shall be governed by California law. The costs of the
arbitration, including any JAMS administration fee, and arbitrator’s fee, and
costs of the use of facilities during the hearings, shall be borne by SVI;
however, the Parties shall be solely responsible for their own attorney’s fees
and costs. Attorney’s fees and costs may be awarded to the prevailing party at
the discretion of the arbitrator as part of the award. In any arbitration
proceeding conducted pursuant to the provisions of this Agreement, both parties
shall have the right to conduct all discovery, to call witnesses and to
cross-examine the opposing party’s witnesses, either through legal counsel,
expert witnesses or both, to the fullest extent allowed by California law,
as
though before any Court or tribunal of the State. Both Parties expressly
understand and agree on behalf of their heirs, executors, administrators,
successors, and assigns, that the rights being waived hereunder specifically
include, but are not limited to, any and all civil claims in State or Federal
Courts under (as any of the same may be amended from time to time) Title VII
of
the Civil Rights Act of 1964; Sections 1981 and 1983 of the Civil Rights Act
of
1866; Equal Pay Act; Americans with Disabilities Act; Age Discrimination in
Employment Act; Federal or State Retirement Income Security Acts; Fair Labor
Standards Act; Family and Medical Leave Act; WARN Act; the United States and
California Constitutions; California Fair Employment and Housing Act; California
Family Rights Act; California Labor Code; any applicable California Industrial
Welfare Commission Wage Order; with respect to the foregoing constitutional
and
statutory references, any comparable constitution, statute or regulation of
any
other state; all claims of discrimination or harassment on account of race,
sex,
sexual orientation, national origin, religion, disability, age, pregnancy,
veteran’s status, or any other protected status under any federal or state
statute; any federal, state or local law enforcing express or implied employment
contracts or covenants of good faith and fair dealing; any federal, state or
local laws providing recourse for alleged wrongful discharge or constructive
discharge, termination in violation of public policy, tort, physical or personal
injury, emotional distress, fraud, negligent misrepresentation, defamation,
and
any similar or related claim; together with any claim under any other local,
state or federal law or constitution governing employment, discrimination or
harassment in employment, or the payment of wages or benefits, which each Party
may have in any way related to Xxxxx’x employment, to the extent legally
allowable. This Agreement and the scope of the release hereunder expressly
includes any statutory claims, including, but not limited to, claims under
the
Age Discrimination in Employment Act (the “ADEA”) and the Older Workers’ Benefit
Protection Act (“OWBPA”), to the extent legally allowable. Although the
intent of this Agreement is to benefit both Parties by mutually agreeing upon
a
single forum for the resolution of any and all disputes or grievances between
them, notwithstanding the foregoing limitations, this Agreement shall not be
interpreted to preclude or waive any Party’s available remedies under, or rights
to, filing, submitting or hearing of matters before any of the above regulatory
or administrative entities, commissions or boards to the extent such rights
cannot by law be waived.
8.16 Waiver
of Trial. IN ACCORDANCE WITH THE AGREEMENT OF THE PARTIES TO
ARBITRATE ALL DISPUTES PURSUANT TO SECTION 8.15, ABOVE, EACH PARTY HEREBY WAIVES
TRIAL IN ANY ACTION, PROCEEDING OR COUNTER CLAIM BROUGHT BY ANY OF THEM AGAINST
THE OTHER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, OR ANY
OTHER AGREEMENTS EXECUTED IN CONNECTION HEREWITH OR THE ADMINISTRATION THEREOF
OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN. THE PROVISIONS OF THIS SECTION
8.16 HAVE BEEN FULLY DISCUSSED BY THE PARTIES HERETO, AND THESE PROVISIONS
SHALL
BE SUBJECT TO NO EXCEPTIONS. NO PARTY HAS IN ANY WAY AGREED WITH OR REPRESENTED
TO ANY OTHER PARTY THAT THE PROVISIONS OF THIS SECTION 8.16 WILL NOT BE FULLY
ENFORCED IN ALL INSTANCES.
11
8.17 Provision
Not Construed Against Party Drafting Agreement. This Agreement is
the result of negotiations by and between the Parties, and each Party has had
the opportunity to be represented by independent legal counsel of its choice.
This Agreement is the product of the work and efforts of all Parties, and shall
be deemed to have been drafted by all Parties. In the event of a dispute, no
Party hereto shall be entitled to claim that any provision should be construed
against any other Party by reason of the fact that it was drafted by one
particular Party.
8.18 Recitals.
The facts recited in Article II, above, are hereby conclusively presumed to
be
true as between and affecting the Parties.
8.19 Best
Efforts. The Parties shall use and exercise their best efforts,
taking all reasonable, ordinary and necessary measures to ensure an orderly
and
smooth relationship under this Agreement, and further agree to work together
and
negotiate in good faith to resolve any differences or problems which may arise
in the future.
8.20 Definitional
Provisions. For purposes of this Agreement, (i) those words, names,
or terms which are specifically defined herein shall have the meaning
specifically ascribed to them; (ii) wherever from the context it appears
appropriate, each term stated either in the singular or plural shall include
the
singular and plural; (iii) wherever from the context it appears appropriate,
the
masculine, feminine, or neuter gender, shall each include the others; (iv)
the
words “hereof”, “herein”, “hereunder”, and words of similar import, when used in
this Agreement, shall refer to this Agreement as a whole, and not to any
particular provision of this Agreement; (v) all references to designated
“Articles”, “Sections”, and to other subdivisions are to the designated
Articles, Sections, and other subdivisions of this Agreement as originally
executed; (vi) all references to “Dollars” or “$” shall be construed as being
United States dollars; (vii) the
term “including”
is not limiting and means “including
without limitation”;
and,
(viii) all references to
all statutes, statutory provisions, regulations, or similar administrative
provisions shall be construed as a reference to such statute, statutory
provision, regulation, or similar administrative provision as in force at the
date of this Agreement and as may be subsequently amended.
IX
EXECUTION
IN
WITNESS WHEREOF,
this Agreement has been duly executed by the Parties, and shall be effective
as
of and on the Effective Date set forth in Section 1, above.
THE
PARTIES HAVE CAREFULLY READ THIS ENTIRE AGREEMENT. ITS CONTENTS AND THE RELEASE
CONTAINED HEREIN HAVE BEEN FULLY EXPLAINED TO THEM BY THEIR ATTORNEYS, OR THEY
HAVE VOLUNTARILY ELECTED NOT TO SEEK THE ADVICE OF AN ATTORNEY. THE PARTIES
FULLY UNDERSTAND THE FINAL AND BINDING EFFECT OF THIS AGREEMENT. THE ONLY
PROMISES OR REPRESENTATIONS MADE TO EACH OF THE PARTIES ABOUT THIS AGREEMENT,
OR
TO INDUCE THEM TO SIGN THIS AGREEMENT, ARE CONTAINED IN THIS AGREEMENT. THE
PARTIES ARE SIGNING THIS AGREEMENT KNOWINGLY AND VOLUNTARILY, WITHOUT
COMPULSION, COERCION, FRAUD, OR DURESS.
12
|
XXXXX:
|
SVI:
|
|
___________________________
|
a
Nevada corporation
|
|
XXXXX
XXXXX
|
|
|
DATED: ___________________
|
BY: ___________________________
|
|
NAME: ________________________
|
|
|
TITLE:
________________________
|
|
|
DATED: _______________________
|
13
