EXHIBIT 10.42
SEVERANCE AND RELEASE AGREEMENT
This Severance and Release Agreement (this "Agreement") is executed
effective OCTOBER , 2004 by and between the ISLAND PACIFIC, INC., a Delaware
corporation ("IPI") and XXXXXX XXXXX ("Xxxxx"), who agree as follows:
1. RECITAL. This Agreement is made with reference to the following
recital of essential facts:
1.1. Xxxxx was employed by IPI as Chief Executive Officer.
1.2. During the course of Xxxxx'x employment with IPI, Xxxxx
had access to and became acquainted with IPI'S confidential and proprietary
information (collectively, "Proprietary Information"), including, but not
limited to, information and/or plans concerning IPI'S customers and customer
relationships; personnel; designs and copyrights; sales, marketing, and
financial operations and methods; trade secrets; devices; processes; and other
compilations of information, records, and specifications.
1.3. Company and Xxxxx agree that Xxxxx resigned from his
employment with Company as of May 15, 2004, which resignation IPI accepted.
1.4. IPI has agreed to provide Xxxxx with certain compensation
and benefits that are not otherwise available (as described below).
1.5. As a material inducement for entering into this
Agreement, the parties agree to mutual releases as more fully set forth below.
2. TERMINATION OF EMPLOYMENT. Xxxxx'x employment with Company
terminated as of May 15, 2004.
3. PAYMENT TERMS. In consideration of this Agreement, IPI will pay
Xxxxx $192,000 as follows. Upon the execution of this Agreement, IPI will pay
Xxxxx $96,000. Within (30) days of Xxxxx signing this Agreement, IPI will pay
Xxxxx an additional $96,000. Upon execution of this Agreement, Employee will be
reimbursed for all business expenses incurred as of May 15, 2004. No withholding
taxes will be deducted from the payments made to Xxxxx under this paragraph 3.
Xxxxx shall indemnify IPI and its directors, officers, shareholders and
affiliates against all Claims (as defined below) and all costs, expenses and
attorney's fees incurred in the defense of any such Claims or any actual
proceeding brought on any such Claims; provided that IPI provides prompt written
notice of any such Claims and Xxxxx has an opportunity to defend such Claims
prior to IPI incurring any such costs, expenses and attorney's fees in
connection therewith. For the purposes of this paragraph 3, Claims shall mean
all liabilities, damages, losses, costs, expenses, attorney's fees and claims
arising from IPI not withholding taxes on any payments made to Xxxxx in
accordance with this paragraph 3 and Xxxxx'x failure to pay any such taxes.
4. RETURN OF PROPERTY. Xxxxx has returned to IPI all property belonging
to IPI in Xxxxx'x possession, including, without limitation, office keys,
computers, pagers, mobile telephones, credit cards, and all Proprietary
Information provided however, that Xxxxx is entitled to retain his own personal
property and personal business correspondence. Upon the signing of this
Agreement, IPI agrees to return to Xxxxx his personal property that it still has
in its possession including, without limitation, all boxes of his personal
possessions.
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5. CONFIDENTIAL INFORMATION.
Xxxxx agrees not to (a) disclose, impart, or otherwise use, for his
benefit or for the benefit of any other person or entity, any of IPI's
Proprietary Information, directly or indirectly, in any way, shape, or form,
without written authorization from IPI, or (b) directly, or indirectly, either
for himself or any other person.
6. RELEASE OF CLAIMS.
6.1. Employee's Release of Claims. As a material inducement to
IPI to enter into this Agreement, Xxxxx hereby irrevocably and unconditionally
releases, acquits and forever discharges IPI and IPI's subsidiaries, affiliates
and each of their respective stockholders, predecessors, successors, assigns,
agents, directors, officers, employees, representatives, attorneys, and all
persons acting by, through, under or in concert with any of them (collectively,
"IPI Releasees"), or any of them, from any and all charges, complaints, claims,
liabilities, obligations, promises, agreements, controversies, damages, actions,
causes of action, suits, rights, demands, costs, losses, debts and expenses
(including attorneys' fees and costs actually incurred) of any nature
whatsoever, known or unknown, suspected or unsuspected, including without
limitation, rights arising out of alleged violations of any contracts, express
or implied (including the Employment Agreement), any covenant of good faith and
fair dealing, express or implied, or any tort, including without limitation
defamation, invasion of privacy, intentional or negligent infliction of
emotional distress, wrongful discharge in violation of public policy, or any
legal restrictions on IPI'S right to terminate employees, or any federal, state
or other governmental statute, regulation, or ordinance, including without
limitation: (1) Title VII of the Civil Rights Act of 1964 (race, color,
religion, sex and national origin discrimination); (2) 42 U.S.C. Section 1981
(discrimination); (3) 29 U.S.C. Section 206(d)(1) (equal pay); (4) 29 U.S.C.
Section 621 et. seq. (age discrimination); (5) the California Fair Employment
and Housing Act (discrimination, including race, color, national origin,
ancestry, physical handicap, medical condition, marital status, sex or age); (6)
Executive Order 11246 (race, color, religion, sex and national origin
discrimination); (7) Executive Order 11141 (age discrimination); (8) Section 503
and 504 of the Rehabilitation Act of 1973 (handicap discrimination); (9)
California Labor Code (wages, hours, and other regulations of employment); and
(10) the Employee Retirement Income Security Act of 1974 (ERISA) (denial of
employee benefits), (collectively, "Xxxxx Claims"), which Xxxxx now has, owns or
holds, or claims to have, own or hold, or which Xxxxx at any time previously
had, owned or held, or claimed to have, owned or held.
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6.2. Notwithstanding the foregoing, the release set forth in
paragraph 6.1 above shall not waive (a) any of Xxxxx'x indemnification rights,
including without limitation, those under IPI's directors and officers insurance
policy and by-laws as well as under applicable law, (b) any right to obtain
contribution as permitted by law in the event of entry of judgment against Xxxxx
as a result of any action or failure to act for which Xxxxx and IPI or any of
its affiliates are jointly liable, and (c) any right to enforce the terms and
conditions of this Agreement.
7. IPI'S RELEASE OF CLAIMS.
7.1. As a material inducement to Xxxxx to enter into this
Agreement, IPI, on behalf of itself and the IPI releasees, hereby irrevocably
and unconditionally release, acquit and forever discharge Xxxxx and the Xxxxx'x
successors, assigns, agents, representatives, and attorneys (collectively,
"Xxxxx Releasees"), or any of them, from any and all charges, complaints,
claims, liabilities, obligations, promises, agreements, controversies, damages,
actions, causes of action, suits, rights, demands, costs, losses, debts and
expenses (including attorneys' fees and costs actually incurred) of any nature
whatsoever, known or unknown, suspected or unsuspected, including without
limitation relating to any alleged violations of the Employment Agreement, or
relating to Xxxxx'x employment with IPI, which IPI now has, owns or holds, or
claims to have, own or hold, or which IPI at any time previously had, owned or
held, or claimed to have, owned or held. (collectively, "IPI Claims"). For the
purposes of the release set forth in this paragraph 7.1, the release shall apply
to stockholders only to the extent permitted by law.
7.2. Notwithstanding the foregoing, the release set forth in
paragraph 7.1 above shall not waive any right to enforce the terms and
conditions of this Agreement.
8. STOCK OPTIONS. Notwithstanding anything else set forth in this
Agreement, the Stock Option Agreement between Xxxxx and IPI dated September 3,
2002 ("Option Agreement") is and shall remain in full force and effect in
accordance with its terms except as modified. Xxxxx agrees to forfeit 500,000 of
the two (2) million fully vested stock options he was granted in the agreement
between Employee and IPI dated October 14, 2002.
9. WAIVER OF STATUTORY RIGHTS. The parties hereby waive all rights
against each other which may exist under California Civil Code Section 1542
and/or any similar state or federal law. California Civil Code Section 1542
provides as follows:
A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the release,
which if known by him must have materially affected his settlement with the
debtor.
10. REPRESENTATIONS AND WARRANTIES.
10.1. XXXXX HEREBY REPRESENTS AND WARRANTS TO IPI THAT:
10.1.1. Xxxxx does not possess any Proprietary
Information as defined in paragraph 1.2 above, other than the intangible
information he learned while at IPI, and Xxxxx has returned all property of IPI
in accordance with the terms of paragraph 4. IPI and Xxxxx hereby acknowledge
the unique nature of the provisions set forth in paragraphs 4 and 5 of this
Agreement, that IPI will suffer irreparable harm if Xxxxx breaches any of those
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provisions, and that monetary damages will be inadequate to compensate IPI for
such breach. Therefore, if Xxxxx is in breach of any of his obligations under
paragraphs 4 and 5 IPI shall be entitled to seek injunctive relief (in addition
to any other remedies at law or equity) to enforce such provisions, without the
necessity for IPI to post any type of bond or similar undertaking.
10.1.2. Xxxxx has to the best of his knowledge never
been injured in any manner while working for or on behalf of IPI or any of the
other Releasees and has not suffered any ailment as a result of his employment
for IPI or any of the Releasees.
10.1.3. Except as set forth in paragraphs 3, Xxxxx is
not entitled to any "vacation pay," any "sick pay," any "back pay," or any other
compensation or reimbursement which has not already been paid by IPI to Xxxxx as
of the Effective Date.
10.1.4. Xxxxx is receiving certain benefits under
this Agreement which Xxxxx would not otherwise be entitled to if Xxxxx did not
enter into this Agreement.
10.1.5. Xxxxx has not previously assigned or
transferred in any manner, or purported to have assigned or transferred in any
manner, any of the Xxxxx Claims described or set forth in paragraph 6.1 above
and covenants that he will not assign, transfer or purport to assign or transfer
to any person or entity any Claims released in this Agreement. Xxxxx shall
indemnify and hold IPI harmless from and against: (i) any Xxxxx Claims assigned
or transferred contrary to the foregoing representation, warranty or covenant;
and (ii) any and all costs including reasonable attorneys fees arising directly
or indirectly out of any breach of the foregoing representation, warranty or
covenant.
10.1.6. Xxxxx warrants and represents that to his
actual knowledge, Xxxxx have not executed or instructed any other employee to
commit IPI to any material contract, commitment or obligation outside the
ordinary course of business, which has not been disclosed to IPI's past or
present Board of Directors and/or officers. For purposes of this representation,
all matters referred to in IPI's attorney's letter dated June 21, 2004,
including without limitation, the contract for 5R, contract with an entity
controlled by Xxxxx'x daughter, contract with Deloitte & Touche to perform a
compensation study, contract with the Xxxxxx firm, and employment contract with
Xxxxxx Xxxxxx, will be deemed fully disclosed.
10.2. IPI hereby represents and warrants that IPI has not
previously assigned or transferred in any manner, or purported to have assigned
or transferred in any manner, any of the IPI Claims described or set forth in
paragraphs 6.2 above and covenants that it will not assign, transfer or purport
to assign or transfer to any person or entity any Claims released in this
Agreement. IPI shall indemnify and hold Xxxxx harmless from and against: (i) any
IPI Claims assigned or transferred contrary to the foregoing representation,
warranty or covenant; and (ii) any and all costs including reasonable attorneys
fees arising directly or indirectly out of any breach of the foregoing
representation, warranty or covenant.
11. CONFIDENTIALITY. Except as essential to the consummation of the
transactions under this Agreement, or as otherwise required by law, including
applicable Securities Exchange Commission regulations and requirements, (a) the
parties shall maintain absolute confidentiality of this Agreement and the
transactions under this Agreement, and (b) the parties shall not make or allow
any notices, statements, disclosures, communications or news releases concerning
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the existence or content of this Agreement or any transaction under this
Agreement. Nothing in this Paragraph, however, shall prevent any party to this
Agreement from disclosing to his/its legal counsel and tax consultants the
existence and terms of this Agreement or any transaction under this Agreement.
Notwithstanding the foregoing, Employee shall be permitted to disclose his
obligations under paragraph 5 to prospective employers.
12. NON-DISPARAGEMENT AND COOPERATION. Neither Xxxxx nor Company shall,
disparage or otherwise publish or communicate "derogatory" statements or
opinions about each other or their respective businesses or personnel, to any
person or entity, be it orally or in writing. For purposes of this Agreement,
"derogatory" shall be defined as a statement that detracts from another's
character, standing, or reputation. Unless compelled by a validly issued
subpoena, Xxxxx specifically agrees not to initiate, participate, or cooperate
in any legal, administrative, or other adversary proceedings contemplated or
initiated by any persons or entities not a party to this Agreement, against IPI
or any of its affiliates, or employees, provided, however nothing herein shall
prevent Xxxxx from complying with a subpoena or other lawful process. Xxxxx
further agrees that he will cooperate with IPI, as IPI may reasonably request,
in connection with any investigation, administrative proceeding or litigation
relating to any matter in which Xxxxx was involved or of which he has knowledge
as a result of his employment with the Company, including without limitation,
providing documents, sworn testimony, information and assistance as reasonably
requested by IPI concerning the transactions and occurrences at issue in United
States District Court Case No. 04 CV 0682 JAH (JFS). The Company shall reimburse
Xxxxx for all reasonable out-of-pocket expenses incurred by him in connection
with any such cooperation.
13. GOVERNING LAW. This Agreement is governed by and construed in
accordance with the laws of the State of California, irrespective of
California's choice-of-law principles.
14. 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.
15. ATTORNEY'S FEES. The prevailing party in any litigation,
arbitration, mediation, bankruptcy, insolvency or other proceeding
("Proceeding") relating to the enforcement or interpretation of this Agreement,
may recover from the unsuccessful party all costs, expenses, and actual
attorney's fees (including expert witness and other consultants' fees and costs)
relating to or arising out of (a) the Proceeding (whether or not the Proceeding
proceeds to judgment), and (b) any post-judgment or post-award proceeding
including, without limitation, one to enforce or collect any judgment or award
resulting from the Proceeding. All such judgments and awards shall contain a
specific provision for the recovery of all such subsequently incurred costs,
expenses, and actual attorney's fees.
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 or 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.
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18. 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.
19. SUCCESSORS-IN-INTEREST AND ASSIGNS. This Agreement is binding upon
and inures to the benefit of the successors-in-interest and assigns of each
party to this Agreement. In the event this Agreement is assigned, IPI shall have
such assignee expressly assume its obligations under this Agreement and in such
a case shall remain jointly and severally liable.
20. 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 IPI: ISLAND PACIFIC, INC.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xx Xxxxx, Xxxxxxxxxx 00000
Attn: Mr. Xxxxxxx Xxxxxxxxx
Fax: (000) 000-0000
With Copy to: XXXXXXX XXXX SEIDENWURM & XXXXX, LLP
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
To Xxxxx: XXXXXX XXXXX
0 Xxxx Xxxxx
Xxxxxxxxxx, XX 00000
With a copy to: Xxxxx & Xxxxxxx, LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Fax: 000.000.0000
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21. 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 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.
22. 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.
23. 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.
24. DRAFTING AMBIGUITIES. Each party to this Agreement has reviewed
this Agreement and has had the opportunity for their legal counsel to review
this Agreement. 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."
26. COUNTERPARTS. This Agreement may be executed in facsimile
counterparts, each of which is deemed an original and all of which together
constitute one document.
27. ARBITRATION OF DISPUTES. ANY CONTROVERSY OR CLAIM RELATING TO OR
ARISING OUT OF THIS AGREEMENT OR XXXXX'X EMPLOYMENT SHALL BE RESOLVED IN SAN
DIEGO, CALIFORNIA BY ARBITRATION IN ACCORDANCE WITH THE NATIONAL RULES FOR THE
RESOLUTION OF EMPLOYMENT DISPUTES OF THE AMERICAN ARBITRATION ASSOCIATION (THE
"AAA RULES"). JUDGMENT UPON THE AWARD RENDERED BY THE ARBITRATOR(S) MAY BE
ENTERED IN ANY COURT HAVING JURISDICTION. NOTWITHSTANDING THE ABOVE, PRELIMINARY
INJUNCTIVE RELIEF SHALL BE AVAILABLE TO THE PARTIES IN COURT, IN ACCORDANCE WITH
APPLICABLE LAW.
FOR ANY CLAIMS BROUGHT UNDER THE CALIFORNIA FAIR EMPLOYMENT AND HOUSING
ACT, TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, OR ANY OTHER LOCAL, STATE OR
FEDERAL CIVIL RIGHTS ACT ("CIVIL RIGHTS CLAIMS"): (A) THE SUBSTANTIVE AND
REMEDIAL PROVISIONS OF THE CIVIL RIGHTS STATUTE(S) APPLICABLE TO THE CIVIL
RIGHTS CLAIMS SHALL BE AVAILABLE TO ANY PARTY REQUIRED TO ARBITRATE CIVIL RIGHTS
CLAIMS UNDER THIS AGREEMENT; (B) IF THE AAA RULES DO NOT ALREADY SO PROVIDE, ANY
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PARTY SUBMITTING A CIVIL RIGHTS CLAIM TO ARBITRATION SHALL BE ENTITLED TO THE
FULL RANGE OF DISCOVERY PROVIDED UNDER CALIFORNIA CODE OF CIVIL PROCEDURE
1283.05, AND XXXXX SHALL NOT BE REQUIRED TO PAY UNREASONABLE COSTS OR ADVANCE
ANY OF THE ARBITRATOR'S FEES OR EXPENSES; AND (C) THE ARBITRATOR MUST ALSO ISSUE
A WRITTEN AWARD SETTING FORTH THE ESSENTIAL FINDINGS AND CONCLUSIONS ON WHICH
THE AWARD IS BASED.
THIS AGREEMENT IS GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF CALIFORNIA, IRRESPECTIVE OF CALIFORNIA'S CHOICE-OF-LAW
PRINCIPLES.
NOTICE: BY INITIALING IN THE SPACE BELOW XXXXX IS AGREEING TO HAVE ANY
DISPUTE ARISING OUT OF THIS AGREEMENT DECIDED BY NEUTRAL ARBITRATION AS PROVIDED
BY CALIFORNIA LAW AND HE IS GIVING UP ANY RIGHTS HE MIGHT POSSESS TO HAVE THE
DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY INITIALING IN THE SPACE BELOW
XXXXX IS GIVING UP HIS JUDICIAL RIGHTS TO APPEAL. IF XXXXX REFUSES TO SUBMIT TO
ARBITRATION AFTER AGREEING TO THIS PROVISION, HE MAY BE COMPELLED TO ARBITRATE
UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. HIS AGREEMENT TO
THIS ARBITRATION PROVISION IS VOLUNTARY.
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES
ARISING OUT OF THIS AGREEMENT TO NEUTRAL, BINDING ARBITRATION.
IPI's Initials: ________ Xxxxx'x Initials: __________
28. EFFECTIVENESS. This Agreement shall become effective when it has
been executed by all of the parties to this Agreement.
XXXXX:
______________________________________
XXXXXX XXXXX
IPI:
ISLAND PACIFIC, INC., a Delaware corporation
By:___________________________________
Its:__________________________________
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