EXHIBIT 10.6
EXECUTIVE EMPLOYMENT AGREEMENT
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This Executive Employment Agreement (this "Agreement") is entered into
as of January 10, 2001, between XXX XXXXXXXXXX ("Executive") and SVI SOLUTIONS,
INC., a Delaware corporation ("Company"), who agree as follows:
1. HIRING. Effective January 10, 2001 (the "Start Date") Company hires
Executive and Executive agrees to act as Company's President and Chief Executive
Officer.
2. DUTIES. Executive shall be charged with the day-to-day management of
the Company, shall perform such duties as are normally performed by a president
and chief executive officer of a corporation, and shall report directly to the
Company's Chairman and the Company's Board of Directors (the "Board").
Executive's responsibilities shall include without limitation business
development, management, strategic direction, successful marketing of the
Company's suite of products and services, and achievement of the Company's
business objectives. Executive will lead the senior executive team in
recommending to the Board the long term direction and goals of the Company,
hiring and firing staff, and developing strategies and tactics to meet Company
goals. Executive shall further perform other duties as the Board shall from time
to time specify. Executive shall faithfully and diligently perform his duties on
a full-time basis, devoting his entire working hours, ability and attention
exclusively towards advancing the Company's interests, subject to oversight and
general guidelines established by the Company's Board.
3. TERMINATION.
3.1 Either Executive or the Company may, at either party's
election, terminate this Agreement and Executive's employment with the
Company, upon 30 days prior written notice to the other party
("Termination Notice"), at any time, for any lawful reason or for no
reason whatsoever, with or without good cause. On the later of the date
of delivery to Executive of the Termination Notice or any date
specified in the Termination Notice as the "termination date",
Executive shall return to Company all property belonging to Company,
including without limitation all Confidential Material and Proprietary
Information (as defined below), promotional material, advertising
information, customer and supplier lists, and similar items. Nothing in
this Agreement shall be construed to create any agreement for any
indefinite or specific term of employment between the Company and
Executive.
3.2 Additionally, the Company may terminate Executive at any
time for Good Cause, and Executive may terminate his employment with
the Company at any time for Good Reason, by providing written notice to
Executive or the Company, as applicable.
3.2.1 For purposes of this Agreement, "Good Cause"
means any of the following:
3.2.1.1 Executive's repeated neglect or
repeated breach of duty, or any failure by Executive
to perform, to the reasonable satisfaction of the
Board, such duties as may be delegated to Executive
by the Company from time to time, as determined by
the Board after reasonable investigation.
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3.2.1.2 Executive is convicted of a felony
or after a through and complete investigation by the
Board, is determined by the Board to have committed
acts of theft of Company property, larceny,
embezzlement, fraud, dishonesty, illegality, moral
turpitude, harassment, or gross mismanagement.
3.2.1.3. Executive's death.
3.2.1.4 Executive becomes materially
disabled to such an extent that Executive, even with
a reasonable accommodation, is precluded from
performing the duties set forth in this Agreement for
a period of 120 consecutive days, or 150 days in the
aggregate during any one calendar year period. Any
absences that result from a reasonable accommodation
as required by the Americans with Disabilities Act,
the California Fair Employment and Housing Act, or
otherwise required by law, shall not be included in
either 120-day or 150-day total.
3.2.1.5 Executive's material breach of this
Agreement or any of his fiduciary duties to Company.
3.2.2. For the Purposes of this Agreement, "Good
Reason" means any of the following:
3.2.2.1. If the Company materially or
substantially changes Executive's duties under this
Agreement, without Executive's prior written consent.
3.2.2.2. If the Company materially or in bad
faith prevents Executive from performing his duties
under this Agreement.
3.2.2.3. If the Company relocates the
Company's corporate headquarters out of San Diego
county.
4. SEVERANCE PAYMENTS. If Company terminates Executive's employment
without Good Cause, or if Executives terminates his employment with Good Reason,
Company shall:
4.1 Pay Executive as severance pay a lump sum payment in an
amount equal to: (a) during the first year of the Executive's
employment, six months of Base Salary (defined below) and a bonus equal
to 37.5% of his Base Salary; or (b) after the first year of Executive's
employment, six months of Base Salary, a bonus equal to 37.5 % of his
Base Salary, and one month of Base Salary for each additional full year
of Executive's employment, up to a maximum of six (6) additional
months. All severance payments made under this Section 4 shall be
subject to appropriate payroll and tax deductions as required by law,
Executive's compliance with all other terms and conditions of this
Agreement and Executive's execution of a reasonable and standard
severance agreement (which will include, among other things, a general
release of all claims by Executive against Company, its agents and
Affiliates). Executive acknowledges that the severance payments
provided to Executive in accordance with this paragraph shall be
Executive's sole remedy against the Company for the Company's
termination of his employment without Good Cause, or Executive's
termination of his employment for Good Reason. All severance payments
shall be paid to Executive within thirty (30) days after Executive's
termination.
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4.2 Continue to pay any medical and dental insurance premiums
for the health insurance plan(s) Executive and any of his dependants
were enrolled in on the effective date of Executive's termination, up
to a maximum of twelve (12) months. Payment of such premiums shall
include any premiums under a COBRA election by Executive, if a COBRA
election is required as a result of Executive's termination from
employment. However, Company's payment of health and dental insurance
premiums will cease before said 12 month period if and when Executive
obtains employment offering the same or similar benefits as provided by
Company at the time of Executive's termination from employment.
4.3 Allow all of Executive's all unvested options granted
prior to the effective date of Executive's termination to immediately
vest. Executive shall have until one year thereafter to exercise all
stock options to acquire Company stock, afterwhich all unexcercised
options shall be terminated.
5. COMPENSATION. The Board will periodically review Executive's
compensation (typically at the beginning of each fiscal year) to determine
Executive's base salary, potential bonus amount, bonus criteria, eligibility for
and amount of any grant of stock options, and other benefits, all in the Board's
sole and absolute discretion. Executive's present compensation consists of the
following:
5.1 BASE SALARY. Executive's annual salary as of the Start
Date shall be $250,000.00 ("Base Salary"), payable in accordance with
and at the same time as Company's ordinary payroll procedures.
5.2 BONUS. If still employed as of the end of the fourth
quarter of the 2001 Fiscal Year (April 1, 2000 through March 31, 2001)
Executive is guaranteed a bonus of $18,750 and is eligible for an
additional bonus of $18,750 based on criteria approved by the Board, as
set forth in this Section 5.2. Executive may agree to accept this
fourth quarter bonus in SVI common stock, in lieu of cash. Such stock
shall be "restricted stock" as that term is defined in Rule 144
promulgated under the Securities Act of 1933. If Executive elects to
receive payment in stock, the Company shall pay the California state
and federal withholding taxes associated with such payment, and shall
further pay "gross-up" California state and federal withholding taxes
due on the amount so paid, such that Executive is not required to
reimburse the Company for any taxes so withheld. Except for such
withholding payments to be made by the Company, Executive shall be
solely responsible for tax consequences associated with receipt and
subsequent disposition of such stock. Any such stock shall be valued at
the closing stock price of the Company's common stock reported on the
American Stock Exchange on March 30, 2001. For Fiscal Year 2002
(beginning in April of 2001) Executive will be eligible for
consideration of an annual bonus (the "Bonus") of a maximum of 75% of
Base Salary at 100% achievement, in accordance with the Management
Bonus Program (the "MBP"). The amount of the Bonus, if any, will be
based on the criteria as established in the Company's annual MBP, as
approved by the Board in its sole and absolute discretion.
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5.3 INCENTIVE STOCK OPTIONS. As an additional incentive to
Executive, the Company agrees to grant Executive the right to purchase
certain shares of the Company's common stock ("stock"), in accordance
with the terms and conditions of the SVI Holdings, Inc. 1998 Incentive
Stock Option Plan assumed by the Company in connection with its merger
with SVI Holdings, Inc. of March 1, 2001 (the "Plan"), the Option
Agreement adopted as a part of the Plan (the "Option Agreement") and
the terms and conditions set forth below. In the event of an
inconsistency between any or all of this Agreement, the Option
Agreement and the Plan, the provisions of the Plan shall control, or in
the absence of controlling language in the Plan, the Option Agreement
shall control. Subject to Section 5.3.3 below, the exercise price of
such incentive stock options will be the Fair Market Value, as defined
in the Plan, of the Company's stock subject to the options on the date
of the grant (the "ISO Option Price"). All incentive stock options must
be exercised by the Executive, in whole or in part, prior to the
Expiration Date set forth in the Option Agreement by written notice
tendering payment at the ISO Option Price.
5.3.1 GRANT AT START DATE. As of the Start Date,
Executive shall receive 250,000 options (the "Initial
Options") which options shall vest in equal monthly increments
over a five-year period from the grant date, in accordance
with the Plan.
5.3.2 POTENTIAL INCENTIVE STOCK OPTIONS FOR FISCAL
YEAR 2002. Executive shall be eligible to receive the
following additional incentive stock options for fiscal year
2002, based upon the following conditions, which subject to
Section 5.3.3 below shall fully vest upon their grant to
Executive.
5.3.2.1 The option to purchase shares of
stock equal in value (calculated at the Fair Market
Value of the stock as of the date of the grant) to:
(1) 100% of Executive's Base Salary, if the Company
has attained 80% of its annual 2002 budgeted EBITDA,
as defined below; (2) 125% of Executive's Base
Salary, if the Company has attained 100% of its
annual 2002 budgeted EBITDA; and 150% of Executive's
Base Salary, if the Company has attained 125% of its
annual 2002 budgeted EBITDA. The grant date and
strike price for these options, if any, shall be the
last day of business of the fiscal year and the
closing price of the shares as of that day. As used
herein EBITDA means for any applicable period, an
amount equal to earnings from operations before other
income and expenses, before interest expense (net of
interest income), and before income taxes,
depreciation or amortization all as determined by the
Company based upon the income and expense components
for the Company utilized by its independent public
accountants in preparation of its audited year-end
financial statements;
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5.3.2.2 Options to purchase 50,000 shares of
the Company's stock, granted and price set at the
closing as of the last day of the fiscal quarter in
which this occurs, if the Company obtains at least
$7,500,000 in proceeds from new equity financing
during the fiscal year 2002;
5.3.2.3 Options to purchase 20,000 shares of
the Company's stock, granted and price set at the
closing as of the last day of the fiscal quarter in
which the Company has quarterly positive EBITDA
during the fiscal year 2002;
5.3.2.4 Options to purchase 20,000 shares of
the Company's stock, granted and price set at the
closing as of the last day of the fiscal quarter in
which the Company attains at least ninety percent
(90%) of the target quarterly gross operating
revenues as defined in the Fiscal 2002 Operating
Plan;
5.3.2.5 Options to purchase 10,000 shares of
the Company's stock, granted and price set at the
closing as of the last day of the fiscal quarter in
each fiscal year 2002 quarter that the Company
maintains its accounts receivable within a defined
day sales outstanding ("DSO") of 45 days;
5.3.2.6 Options to purchase 20,000 shares of
the Company's stock, granted and price set at the
closing as of the last day of the fiscal quarter in
each fiscal 2002 quarter that the Company obtains the
following targeted number of New License Customers,
as defined in the Company's Fiscal 2002 Operating
Plan:
5.3.2.6.1. Q1 2002: 1;
5.3.2.6.2. Q2 2002: 2;
5.3.2.6.3. Q3 2002: 2: and
5.3.2.6.4. Q4 2002: 3
5.3.2.7 Options to purchase 40,000 shares of
the Company's stock, granted and price set at the
closing as of the last day of the fiscal year 2002,
if the Company obtains more gross revenues from
operations, computed in accordance with generally
accepted accounting principles, from Company
customers in existence as of Executive's Start Date
than gross revenues from those existing customers in
fiscal year 2001.
5.3.3 Potential Changes in Option Price, Vesting and
Nature. All options described in this paragraph 5.3 are
intended to be incentive stock options, except to the extent
that the terms and conditions of a specific grant of options
would not qualify as incentive stock options under the Plan or
Internal Revenue Code Section 422. Notwithstanding any other
Section of this Agreement:
5.3.3.1 On or after the date, if any, on
which Executive becomes a 10% shareholder in the
Company, then the ISO Option Price for any options
not yet granted under this Agreement shall
automatically increase by 10%, and all such options
must be exercised within five years after the date of
their grant to Executive;
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5.3.3.2 Upon an event specified in paragraph
13(b) of the Plan, the options then issued under this
Agreement, and the number of shares subject to
options to be awarded in the future under this
Agreement, shall be appropriately adjusted.
5.3.3.3 The Option Agreement shall contain
provisions whereby the acquisition of more than 50%
of the common stock of the Company by a person who
was not a shareholder on the Start Date will trigger
immediate vesting of all unvested options granted
prior to such date with the exception of the
acquisition by Xxxxxxx Xxxxx International
Investments ("SSII") of 50% or more of the common
stock of the Company as a result of the transaction
contemplated by the MOU signed with the Company (a
"Change of Control") Such options shall be
exerciseable in conjunction with such Change of
Control under terms as favorable as those offered to
any other shareholder. Subject to any successor or
acquiring entity's refusal to assume or continue any
options, Executive may, at his election, leave his
options unvested or converted into options of the
surviving or acquiring entity according to the
surviving or acquiring entity's requirements.
5.3.3.4 To the extent that the value of the
shares of Company stock that may be exercised by
Executive for the first time in any calendar year
exceeds $100,000 based on the fair market value of
the stock at the time of the grant, Executive hereby
acknowledges that said all such options may not be
treated as incentive stock options.
5.3.3.5 To the extent that the number of
shares subject to options which are to be granted
hereunder exceeds the per person maximum set forth in
Section 4(d) of the Plan, such options shall be
granted by the Company outside of the Plan on terms
and conditions similar to those contained in the Plan
and the Option Agreement. Executive understands that
any options granted outside of the Plan will not be
treated as incentive stock options.
6. BENEFITS. Executive shall be entitled to the following benefits
during the period of his employment under this Agreement:
6.1 RELOCATION ASSISTANCE. In order to offset the expense
Executive must incur in moving he and his family to the San Diego area,
the Company will provide Executive with the following:
6.1.1 The Company will use its best efforts to assist
Executive in obtaining a bridge loan in an amount not to
exceed $500,000, to cover the purchase of a new house in the
San Diego area, secured by Executive's new house (the "Loan").
The Company will repay Executive all interim carrying costs
associated with the Loan (including principal and interest),
but shall not be liable as a borrower under the terms of the
loan documents. Executive shall repay the principal amount of
the Loan no later than 30 days after Executive completes the
sale of his house in San Xxxx and Executive agrees to use his
best efforts to complete that sale as soon as possible.
Executive acknowledges that there may be imputed interest to
him as a result of this transaction;
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6.1.2 As of the Start Date, the Company shall grant
to Executive pursuant to the Plan non-qualified stock options
to purchase up to 300,000 shares of the Company's stock (the
"Relocation Options"), at an exercise price equal to 85% of
the Fair Market Value of the Company's stock on the date of
the grant. The Relocation Options shall vest as follows:
100,000 shares immediately, 100,000 shares in six months from
the Start Date, and 100,000 shares in twenty four months from
the Start Date. The Company will use its best efforts to
attempt to register the Relocation Options as soon as the
Company is required to register any other shares of Company
stock. Executive acknowledges that the Relocation Options will
be issued outside of the Plan, and therefore will not be
treated as incentive stock options. Company agrees to file an
S-8 registration statement for the Relocation Options on or
before August 31, 2001.
6.1.3 For the period beginning on the Start Date and
ending six months thereafter (the "Relocation Period"), the
reasonable costs associated with either Executive's travel to
San Xxxx once each week, or for Executive's immediate family
to travel to San Diego once each week.
6.1.4 Until the earlier of the sale of Executive's
house in San Xxxx, or a period not to exceed twelve (12)
months from the Executive's Start date, payment of either
Executive's reasonable monthly mortgage payment on any new
house purchased in San Diego by Executive, or the reasonable
cost of a furnished rental unit or hotel and other living
expenses in San Diego.
6.1.5 The Company shall pay the California state and
federal withholding taxes associated with payments of the
foregoing relocation assistance payments, and shall further
pay "gross-up" California state and federal withholding taxes
due on the amount so paid, such that Executive will have no
net taxes withheld for such relocation assistance payments.
Except for such withholding payments to be made by the
Company, Executive shall be solely responsible for tax
consequences associated with the relocation assistance
payments. Executive shall also be responsible for all tax
consequences associated with the exercise of Relocation
Options and the subsequent disposition of the stock received
from such exercise.
6.2 VACATION. Three (3) weeks paid vacation per year, to be
taken at times that are consistent with Executive's performance of his
duties under this Agreement, and in accordance with Company's regular
policies and procedures.
6.3 INSURANCE. A $4,000 annual stipend for Executive's
personal term life insurance policy, and inclusion in any medical and
dental plan adopted for the Company's other employees. In addition, the
Company shall pay all medical and dental insurance plan costs for the
Executive and the Executive's qualified dependents.
6.4 CAR ALLOWANCE. A $1,000 per month automobile allowance.
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6.5 EXPENSES. Reimbursement for reasonable travel and local
expenses incurred in the proper performance of Executive's duties under
this Agreement, in accordance with Company policy.
6.6 OTHER. All benefits generally available to other
executives of Company, including the Executive Health Insurance Benefit
Plan under which the Company will pay all Medical and Dental Insurance
premiums for the Executive and the Executive's qualified dependants.
7. CONFIDENTIALITY. Executive acknowledges that Company has made (or
may make) available to Executive certain customer lists, product design
information, performance standards and other confidential and/or proprietary
information of Company or licensed to Company or its Affiliates that the Company
has taken reasonable measures to keep confidential and that has independent
economic value by not being generally known to the public or others in the
industry, including without limitation trade secrets and copyrighted materials
(collectively, the "Confidential Material"). Except as essential to Executive's
obligations under this Agreement, Executive shall not make any disclosure of
this Agreement, the terms of this Agreement, or any of the Confidential
Material. Except as essential to Executive's obligations under this Agreement,
Executive shall not make any duplication or other copy of any of the
Confidential Material. Immediately upon request from Company, Executive shall
return to Company all Confidential Material. For the purposes of this paragraph,
Confidential Material shall not include publicly available information or
information generally known or generally employed by the trade or industry.
8. PROPRIETARY INFORMATION
8.1 DEFINED. For purposes of this Agreement, "Proprietary
Information" shall mean any information, observation, data, written
material, record, document, computer program, software, firmware,
invention, discovery, improvement, development, tool, machine,
apparatus, appliance, design, promotional idea, customer and supplier
lists, practice, process, formula, method, technique, trade secret,
product and/or research related to the actual or anticipated research,
development, products, organization, business or finances of the
Company or its Affiliates.
8.2 OWNERSHIP. All right, title and interest of every kind and
nature in and to the Proprietary Information made, discussed,
developed, secured, obtained or learned by Executive during the term of
this Agreement shall be the sole and exclusive property of Company for
all purposes or uses, and shall be disclosed promptly by Executive to
Company. The covenants set forth in the preceding sentence shall apply
regardless of whether any Proprietary Information is made, discovered,
developed, secured, obtained or learned (a) solely or jointly with
others, (b) during the usual hours of work or otherwise, (c) at the
request and upon the suggestion of Company or otherwise, or (d) with
Company's materials, tools, instruments or on Company's premises or
otherwise. All Proprietary Information developed, created, invented,
devised, conceived or discovered by Executive that is subject to
copyright protection is explicitly considered by Executive and Company
to be works made for hire to the extent permitted by law. Executive
hereby assigns to Company all of Executive's right, title and interest
in and to the Proprietary Information.
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8.3 ASSISTANCE. Executive shall execute any documents and take
any action Company may deem reasonably necessary or appropriate to
effectuate the provisions of this Agreement, including assisting
Company in obtaining and maintaining patents, copyrights or similar
rights to any Proprietary Information assigned to Company. Executive
shall comply with all reasonable rules established by Company for the
protection of the confidentiality of any Proprietary Information.
Executive irrevocably appoints each officer of Company to act as
Executive's agent and attorney-in-fact to perform all acts necessary to
obtain or maintain patents, copyrights and similar rights to any
Proprietary Information assigned by Executive to Company under this
Agreement if (a) Executive refuses to perform those acts, or (b) is
unavailable, within the meaning of any applicable laws. Executive
acknowledges that the grant of the foregoing power of attorney is
coupled with an interest and survives the death or disability of
Executive. Executive shall promptly disclose to Company, in confidence
(a) all Proprietary Information that Executive creates during the term
of this Agreement, and (b) all patent applications filed by Executive
within one year after termination of this Agreement. Executive shall
have no authority to exercise any rights or privileges with respect to
the Proprietary Information owned by or assigned to Company under this
Agreement. This Agreement does not apply to any Proprietary Information
that fully qualifies under the provisions of California Labor Code
Section 2870 or any similar or successor statute.
9. COMPETITION. To the extent permitted by applicable law, Executive
shall not engage in the following behavior anywhere in the United States, where
the Company or its Affiliates sell products or otherwise conduct business as of
the date of this Agreement or if applicable the date of Executive's cessation of
employment with the Company ("the Company's Business"):
9.1 During the term of this Agreement, Executive shall not own
an interest in, operate or participate in, or be connected as an
officer, director, employee, agent, independent contractor, partner,
shareholder or principal of any business entity or person producing,
designing, providing, soliciting orders for, selling, distributing, or
marketing products, goods, or services that compete with Company's
Business;
9.2 During the period of time set forth in Section 9.5 below,
Executive shall not undertake any employment or activity competitive
with the Company's Business, including without limitation the
inducement or solicitation of the Company or its Affiliates' customers,
if the duties or work of, in connection with or related to such
competitive employment or activity would or might cause Executive to
reveal or use any Confidential Material or Proprietary Information. The
restriction set forth in this Section 9.2 shall not be limited to a
particular geographical area.
9.3 During the period of time set forth in Section 9.5 below,
Executive shall not, directly or actively, either for himself or any
other person, induce or attempt to induce any employee of the Company
or any Affiliate to terminate his or her employment.
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9.4 The Company may cancel all of Executive's unexercised
options, and may at its election repurchase at Executive's exercise
price all stock obtained by Executive through the exercise of any stock
options granted to Executive, if during the period of time set forth in
Section 9.5 Executive directly or indirectly, induces or attempts to
induce any customer, supplier, licensee, or business relation of the
Company or any Affiliate to cease doing business with such company, or
in any way interfere with the relationship between any customer,
supplier, licensee, or business relation of such the Company.
9.5 Unless otherwise specified, the duration of the covenants
set forth in this Section 9 shall be the entire term of Executive's
employment with the Company plus a period of 18 months after the
termination of such employment. Executive agrees that this covenant is
reasonable with respect to its duration, geographical area, and scope.
Notwithstanding such restriction, Executive may purchase or otherwise
acquire up to (but not more than) one percent (1%) of any class of
securities of any enterprise (but without otherwise participating in
the activities of such enterprise) if such securities are listed on any
national or regional securities exchange or have been registered under
Section 12(g) of the Securities Exchange Act of 1934. In the event of a
breach by Executive of any covenant set forth in this Section 9, the
term of such covenant will be extended by the period of the duration of
such breach, provided, however, that such extension shall be limited to
three years. For purposes of this Agreement, "Affiliate" shall mean any
partner, employee, director, shareholder, officer of the Company or any
person or entity controlled by, controlling, or under common control
with, directly or indirectly, the Company, and its successor in title
and interest.
10. BUSINESS OPPORTUNITIES. During the term of this Agreement, if
Executive (or any agent, employee, officer or independent contractor of or
retained by Executive) becomes aware of any project, investment, venture,
business or other opportunity (any of the preceding, an "Opportunity") that is
similar to, competitive with, related to or in the same field as the Company, or
any project, investment, venture, or business of the Company, then Executive
shall so notify the Company immediately in writing of such Opportunity and shall
use Executive's good-faith efforts to cause the Company to have the opportunity
to invest in, participate in or otherwise become affiliated with such
Opportunity.
11. INJUNCTIVE RELIEF. Company and Executive each hereby acknowledge:
(a) the unique nature of the provisions set forth in Articles 7, 8, 9, and 10;
(b) that Company will suffer irreparable harm if Executive breaches any of those
provisions; and (c) that monetary damages will be inadequate to compensate
Company for such breach. Therefore, if Executive breaches any of such
provisions, then Company is entitled to injunctive relief, without bond, in
addition to any other remedies at law or equity to enforce the provisions.
12. USE OF NAME AND LIKENESS. During the term of this Agreement,
Executive grants the Company and the Company's assignees the rights to use all
appearances and future appearances (including Executive's name, images,
photographs, and likenesses) in any form whatsoever ("Appearances") for the
Company's or its assignee's purposes, in any nondefamatory manner. To the extent
Executive has any rights (such as copyright, publicity right, or otherwise) in
the Appearances, Executive absolutely assigns all such rights to the Company.
Executive consents to all uses of the Appearances by the Company and its
assignees. Executive shall execute and deliver all instruments and documents and
take all actions as may be reasonably required or appropriate to carry out the
purposes of this Section 12.
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13. ARBITRATION OF DISPUTES. Except with respect to certain provisional
relief that may be available to Executive or the Company (including the remedies
to which Company is entitled under Article 10), arbitration constitutes the sole
and exclusive remedy for the settlement of any dispute or controversy concerning
this Agreement or the rights of the parties hereunder, including whether the
dispute or controversy is arbitrable, and including all disputes regarding wages
or benefits, hiring, termination, defamation, invasion of privacy, infliction of
emotional distress, unlawful harassment, and all statutory employment
discrimination, harassment, or similar claims such as claims arising under the
California Fair Employment and Housing Act, the Americans With Disabilities Act,
Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment
Act, the California Labor Code, the Equal Pay Act, the Rehabilitation Act of
1974, the Employee Retirement Income and Security Act, and any and all other
legal, equitable, and statutory claims that may be lawfully submitted to
arbitration. The substantive and remedial provisions of the civil rights
statutes referenced above shall be available to any party required to arbitrate
such claims under this agreement. The arbitration proceeding will be conducted
in San Diego, California, before a panel of three arbitrators under the
Employment Arbitration Rules of the American Arbitration Association in effect
at the time a demand for arbitration is made. California law governs this
Agreement, irrespective of California's or any other jurisdiction's
choice-of-law principles. To the extent that there is any conflict between the
rules of the American Arbitration Association and this arbitration clause, this
clause will govern and determine the rights of the parties. The decision of the
arbitrators, including the determination of the amount of any damages suffered,
will be exclusive, final, and binding on all parties, their heirs, executors,
administrators, successors, and assigns, as applicable, and judgment thereon may
be entered in any court of competent jurisdiction. The arbitrator will have the
right to award any remedy permitted at law, including without limitation,
punitive damages, equitable relief, monetary damages, interest, and attorneys
fees. The costs of arbitration, including administrative fees, fees for a record
and transcript, and the arbitrators' fees, will be awarded to the party
determined by the arbitrator to be the prevailing party. The parties incorporate
the provisions of California Code of Civil Procedure Section 1283.05 into this
Agreement and make those provisions part of and applicable to any proceedings
arising under the terms of this Agreement.
NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY
DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES"
PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU
ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A
COURT OR JURY TRIAL. BY INITIALING IN THE SPACE BELOW YOU ARE GIVING UP YOUR
JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY
INCLUDED IN THE "ARBITRATION OF DISPUTES" PROVISION. IF YOU REFUSE TO SUBMIT TO
ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE
UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO
THIS ARBITRATION PROVISION IS VOLUNTARY.
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT TO
DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THE "ARBITRATION OF DISPUTES"
PROVISION TO NEUTRAL ARBITRATION.
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EXECUTIVE'S INITIALS COMPANY'S INITIALS
---------- ----------
14. JURISDICTION AND VENUE. For the purposes of jurisdiction and venue,
all actions and proceedings arising in connection with this Agreement must be
tried and litigated exclusively in the State and Federal courts located in the
County of San Diego, State of California, which courts have personal
jurisdiction and venue over each of the parties to this Agreement for the
purpose of adjudicating all matters arising out of or related to this Agreement.
Each party authorizes and accepts service of process sufficient for personal
jurisdiction in any action against it as contemplated by this paragraph by
registered or certified mail, return receipt requested, postage prepaid, to its
address for the giving of notices set forth in this Agreement.
15. FURTHER ASSURANCES. Each party to this Agreement shall execute and
deliver all instruments and documents and take all actions as may be reasonably
required or appropriate to carry out the purposes of this Agreement.
16. MODIFICATION. This Agreement may be modified only by a contract in
writing executed by the party to this Agreement against whom enforcement of the
modification is sought.
17. PRIOR UNDERSTANDINGS. This Agreement and all documents specifically
referred to and executed in connection with this Agreement: (a) contain the
entire and final agreement of the parties to this Agreement with respect to the
subject matter of this Agreement, and (b) supersede all negotiations,
stipulations, understandings, agreements, representations and warranties, if
any, with respect to such subject matter, which precede or accompany the
execution of this Agreement.
18. INTERPRETATION. Whenever the context so requires in this Agreement,
all words used in the singular may include the plural (and vice versa) and the
word "person" includes a natural person, a corporation, a firm, a partnership, a
joint venture, a trust, an estate or any other entity. The terms "includes" and
"including" do not imply any limitation. No remedy or election under this
Agreement (except the arbitration provision) is exclusive, but rather, to the
extent permitted by applicable law, each such remedy and election is cumulative
with all other remedies at law or in equity.
19. HEADINGS. The paragraph headings in this Agreement: (a) are
included only for convenience, (b) do not in any manner modify or limit any of
the provisions of this Agreement, and (c) may not be used in the interpretation
of this Agreement.
20. PARTIAL INVALIDITY. Each provision of this Agreement is valid and
enforceable to the fullest extent permitted by law. If any provision of this
Agreement (or the application of such provision to any person or circumstance)
is or becomes invalid or unenforceable, the remainder of this Agreement, and the
application of such provision to persons or circumstances other than those as to
which it is held invalid or unenforceable, are not affected by such invalidity
or unenforceability unless such provision or the application of such provision
is essential to this Agreement. Should any one or more of the provisions of this
Agreement be determined to be illegal or unenforceable in any relevant
jurisdiction, then such illegal or unenforceable provision shall be modified by
the proper court, if possible, but only to the extent necessary to make such
provision enforceable.
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21. SUCCESSORS-IN-INTEREST AND ASSIGNS. Executive may not voluntarily
or by operation of law assign, hypothecate, delegate or otherwise transfer or
encumber all or any part of his rights, duties or other interests in this
Agreement without the prior written consent of Company, which consent may be
withheld in Company's sole and absolute discretion. Any such transfer in
violation of this paragraph is void. Subject to the foregoing and any other
restrictions on transferability contained in this Agreement, this Agreement is
binding on and inures to the benefit of the successors-in-interest and assigns
of each party to this Agreement.
22. NOTICES. Each notice and other communication required or permitted
to be given under this Agreement ("Notice") must be in writing. Notice is duly
given to another party upon: (a) hand delivery to the other party, (b) receipt
by the other party when sent by facsimile to the address and number for such
party set forth below (provided, however, that the Notice is not effective
unless a duplicate copy of the facsimile Notice is promptly given by one of the
other methods permitted under this paragraph), (c) three business days after the
Notice has been deposited with the United States postal service as first-class
certified mail, return receipt requested, postage prepaid, and addressed to the
party as set forth below, or (d) the next business day after the Notice has been
deposited with a reputable overnight delivery service, postage prepaid,
addressed to the party as set forth below with next business day delivery
guaranteed, provided that the sending party receives a confirmation of delivery
from the delivery service provider.
To: Xxx Xxxxxxxxxx
X.X. Xxx 000000
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
With a copy to:
Crosby, Heafey, Xxxxx & May, P.C.
Two Xxxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
To: SVI Holdings, Inc.
00000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxx
Fax: (000) 000-0000
With a copy to:
Xxxxxxx Xxxx Seidenwurm & Xxxxx, LLP
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Attn: Xxxxxx Xxxxx, Esq.
Fax: (000) 000-0000
13
Each party shall make a reasonable, good faith effort to
ensure that it will accept or receive Notices to it that are given in accordance
with this paragraph. A party may change its address for purposes of this
paragraph by giving the other party(ies) written notice of a new address in the
manner set forth above.
23. WAIVER. Any waiver of a default or provision under this Agreement
must be in writing. No such waiver constitutes a waiver of any other default or
provision concerning the same or any other provision of this Agreement. No delay
or omission by a party in the exercise of any of his/its rights or remedies
constitutes a waiver of (or otherwise impairs) such right or remedy. A consent
to or approval of an act does not waive or render unnecessary the consent to or
approval of any other or subsequent act.
24. DRAFTING AMBIGUITIES. Each party to this Agreement has reviewed and
revised this Agreement and has had the opportunity to have such party's legal
counsel review and revise this Agreement. Specifically, the Company has
consulted with the law firm of Xxxxxxx Xxxx Seidenwurm & Xxxxx, LLP and
Executive has consulted with the law firm of Crosby, Heafey, Xxxxx & May, P.C.
The rule of construction that ambiguities are to be resolved against the
drafting party or in favor of the party receiving a particular benefit under an
agreement may not be employed in the interpretation of this Agreement or any
amendment to this Agreement.
25. THIRD PARTY BENEFICIARIES. Nothing in this Agreement is intended to
confer any rights or remedies on any person or entity other than the parties to
this Agreement and their respective successors-in-interest and permitted
assignees, unless such rights are expressly granted in this Agreement to another
person specifically identified as a "Third Party Beneficiary."
14
26. EFFECTIVENESS. This Agreement shall become effective when it has
been executed by all of the parties to this Agreement.
EXECUTIVE:
/s/ Xxx Xxxxxxxxxx
--------------------------
XXX XXXXXXXXXX
SVI:
SVI SOLUTIONS, INC., A DELAWARE CORPORATION
By: /s/ Xxxxx X. X'Xxxxx
--------------------
Its: Executive Vice President and Chief Financial Officer
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