SETTLEMENT AGREEMENT AND GENERAL RELEASE
Exhibit
10.1
SETTLEMENT
AGREEMENT AND GENERAL RELEASE
This
Settlement Agreement and General Release (the “Agreement”) is made and entered
into as of September 21, 2007, by and between Fluid Media Networks, Inc.,
a
Nevada corporation (the “Company”), and Xxxxx X. Xxxxxxxx
(“Xxxxxxxx”). The Company and Xxxxxxxx are hereinafter collectively
referred to as the “Parties.”
RECITALS
WHEREAS,
Xxxxxxxx is a party to that certain Employment Agreement dated February 21,
2006, by and between Xxxxxxxx and the Company, as extended (collectively,
the
“Employment Agreement”);
WHEREAS,
Xxxxxxxx resigned from his position as the Chief Financial Officer, effective
September 5, 2007;
WHEREAS,
the Company and Xxxxxxxx wish to fully settle and discharge all claims and
damages, whether known or unknown, and whether anticipated or unanticipated,
which are or may be the subject of any lawsuit or any other claim which has
arisen or which may arise between the Parties upon the terms and conditions
set
forth herein.
NOW
THEREFORE, in consideration of the foregoing recitals and for good and valuable
mutual consideration, the receipt of which is hereby acknowledged, the Parties,
intending to be legally bound, do hereby agree to the following terms and
conditions:
AGREEMENT
1. Settlement
Consideration. As satisfaction and performance in full of all
obligations due and payable to Xxxxxxxx by the Company and each and every
subsidiary, parent or other affiliate thereof (including without limitation
all
salary, bonus payments, accrued vacation and business expense reimbursement
due
to Xxxxxxxx under any and all agreements between Xxxxxxxx and the Company),
and
subject to the compliance by Xxxxxxxx of the provisions of Sections 1 and
6
hereof, the Company shall pay to Xxxxxxxx the aggregate amount of Sixty Four
Thousand Eight Hundred Dollars ($64,800.00) (which amount shall be subject
to
withholding by the Company). The settlement consideration herein
described shall be paid upon the execution by the Parties of this Agreement
and
the receipt by the Company of a letter of resignation from Xxxxxxxx in form
and
substance reasonably satisfactory to the Company. Notwithstanding the
termination of the Employment Agreement or the release hereinafter described
in
Section 3 hereof, Xxxxxxxx shall remain subject to all the terms and provisions
of the Employment Agreement, which by their express terms, purport to survive
the termination of such agreement, including without limitation, that section
of
the Employment Agreement entitled “Certain Acts” and the terms of
that certain Proprietary Information and Inventions Agreement, dated as of
February 21, 2007 (collectively, the “Surviving Obligations”), and the release
set forth in Section 3 hereof shall not operate to release any matter arising
from or related to any of the Surviving Obligations. Each Party
shall be entitled to all such additional remedies to which is may be entitled
at
law or in equity in the event of a breach of any of the Surviving Obligations
by
the other.
2. Releases.
(a) The
Company and Xxxxxxxx, on behalf of itself or himself and each of its or his
representatives, agents, affiliates, successors, predecessors, attorneys,
heirs,
executors, administrators, agents and assigns, and each and all of them,
fully
release and forever discharge each other, each of its former and current
principals, officers, members, managers, directors, shareholders, employees,
representatives, agents, parents, subsidiaries, affiliates, successors,
predecessors, attorneys, heirs, executors, administrators, agents and assigns,
and each and all of them, as applicable, of and from any and all claims,
debts,
rights, liabilities, damages, costs, expenses, attorneys' fees, causes of
action, lawsuits, loss of use and loss of services of every kind, nature,
or
description, whether known or unknown, suspected or unsuspected, which
previously existed, now exist, or may exist hereafter, accruing, occurring
or
arising from or in any way related to the Employment Agreement, Xxxxxxxx’
employment or engagement in any manner by the Company, the terms and conditions
of the Employment Agreement or other such employment or engagement, the
termination of the Employment Agreement or Xxxxxxxx’ separation from said
employment or engagement whether based on tort, contract, statute, insurance
policy, or other theory of recovery, and whether for compensatory or punitive
damages, including attorneys’ fees and costs, as well as statutory sanctions,
which the Parties ever had against each other or now have against each other
including, but not limited to, defamation, intentional infliction of emotional
distress, negligent hiring or supervision, conversion, interference with
contract, impairment of economic opportunity, breach of promise, conspiracy,
fiduciary breach, declaratory relief, prohibited transactions, fraud,
misrepresentation, and retaliation, wrongful or constructive discharge, or
arising under any federal, state or local employee benefit, wage payment,
labor
relations, equal employment, civil, human or employee rights, whistleblower
or
fair employment practices law, statute or regulation and/or discrimination
on
the basis of sex, disability or perceived disability (including the Americans
With Disabilities Act of 1990), record or history of disability, race, color,
religion, national origin (including Title VII of the Civil Rights Act of
1964,
as amended), ancestry, age (including the Age Discrimination in Employment
Act
of 1967 (29 U.S.C. § 621, et seq.), and the Older Workers Benefit Protection
Act), creed, handicap, citizenship, ethnic characteristics, sexual orientation,
genetic predisposition or carrier status, gender or marital status, veteran
status, the Xxxxxxxx-Xxxxx Act, the Employee Retirement Income Security Act,
the
California Fair Employment and Housing Act and any other federal, state or
local
laws or to claims for attorneys’ fees, expenses or costs with respect to any of
the above. Xxxxxxxx acknowledges that he did not suffer any workers’
compensation injury while employed with Company, and agrees not to bring
or
pursue any further claim or claims for Workers’ Compensation arising from his
employment with Company. Xxxxxxxx hereby agrees to waive any right to
recover money damages or other relief personal to Xxxxxxxx in any charge,
complaint or lawsuit filed by Xxxxxxxx or by anyone else on Xxxxxxxx’
behalf. All of the foregoing released matters are hereinafter
collectively referred to as the “Released Matters.”
(b) The
releases set forth above are not intended to, and shall not, extend to or
otherwise release or discharge any rights, privileges, benefits, duties,
or
obligations of any of the Parties by reason of, or otherwise arising under,
(i)
this Agreement, (ii) the Surviving Obligations, (iii) Xxxxxxxx vested stock
options, (iv) Xxxxxxxx’ right to seek indemnification from the Company pursuant
to any existing indemnification agreement with the Company, or (v) with regard
to any director and officer insurance policy covering Xxxxxxxx.
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(c) The
Parties, and each of them, acknowledge that they may hereafter discover facts
different from, or in addition to, those which they now believe to be true
with
respect to any and all of the Released Matters, including without limitation,
unknown or unanticipated claims which, if known or anticipated, on the date
of
execution of this Agreement, might have materially affected such Party's
decision to execute this Agreement. Each of the Parties acknowledges
and agrees that by reason of the mutual general release set forth above,
they
are assuming the risk of such unknown claims and agree that this Agreement
shall
apply thereto. Nevertheless, the Parties hereto, and each of them,
hereby agree that each of the releases set forth above shall be and remain
effective in all respects, notwithstanding the discovery of such different
or
additional facts.
3. Civil
Code Section 1542. The Parties represent that they are not aware
of any disputes or causes of action they have other than the disputes and
causes
of action that are released by this Agreement. The Parties expressly
agree and understand that this Agreement is a full and final release of all
claims of every nature and kind, known or unknown, suspected or unsuspected,
past, present, or future, of all Released Matters, and execution of this
Agreement by the Parties operates as a complete bar and defense against any
and
all claims that may be made by the Parties with regard to the Released Matters,
and that, should any proceeding be instituted with respect to matters released
herein, this Agreement shall be deemed in full and complete accord, satisfaction
and settlement of any such released matter and sufficient basis for its
dismissal. The Parties have read and fully understand the statutory
language of section 1542 of the California Civil Code and on that basis
expressly and specifically waive all rights under said statute or any analogous
state law or federal law or regulation. Section 1542 of the
California Civil Code reads as follows:
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A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW
OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING
THE
RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED
HIS OR
HER SETTLEMENT WITH THE DEBTOR.
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The
Parties expressly waive any rights they may have under it, as well as under
any
other statute or common law principles of similar effect. Each Party
represents further that as of the date of execution of this Agreement, he
or it
has not brought any claims of the type released against any of the released
parties set forth above.
4. Confidentiality
of Settlement. Xxxxxxxx agrees to maintain in confidence the
existence of this Agreement, the contents and terms of this Agreement, and
the
consideration for this Agreement (hereinafter collectively referred to as
“Settlement Information”). Xxxxxxxx agrees to take every reasonable
precaution to prevent disclosure of any Settlement Information to third parties,
and agrees that he will not make statements or otherwise permit or cause
any
publicity, directly or indirectly, concerning any Settlement Information
to be
released. Xxxxxxxx agrees and acknowledges that the Company will be
required to publicly announce Xxxxxxxx’ separation from the
Company.
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5. Confidential
Information. Xxxxxxxx acknowledges and agrees that in the course
of his employment or engagement with the Company, he has had access to and/or
made use of certain confidential information relating to the business activities
of the Company. Such confidential information includes, but is not
limited to, technical information (including, but not limited to processes,
know-how, methods, proprietary testing data, plans, specifications, formulas,
inventions, electronics, computer programs, computer codes, research and
development projects, and machines); business strategies; financial data
and
results; pricing data; the contents of current or future client accounts
and
client preferences; key persons to contact with regard to client accounts
and
client needs; market surveys and research data; and contractual agreements
between the Company and clients and other persons or entities, compilations
of
information and records that are owned or validly possessed by the Company
or
are used in the operation of the Company’s business and other information that
is kept confidential by the Company. Xxxxxxxx agrees that he will not
disclose any such confidential information, directly or indirectly, or use
any
of it in any way whatsoever. Xxxxxxxx further represents and agrees
that all files, computer programs, records, documents, lists, specifications,
and similar items relating to the business activities of the Company, including
any and all copies and summaries, whether prepared by Xxxxxxxx or otherwise
coming into Xxxxxxxx’ possession, custody or control, are property of the
Company and have been or will be returned immediately by him to the Company
and
that he will not remove from the premises of the Company any such property
or
information or any other property, information, electronic or other otherwise,
of the Company. Xxxxxxxx hereby represents and warrants that he has
returned all Company property in his possession and or under his control
and
that the Company shall not be obligated to pay the settlement consideration
due
under Section 1 hereof until the return of all such property.
6. Warranty
Of Non-Assignment. Each of the Parties hereby warrants,
represents and agrees that he, she or it is the sole and lawful owner of
all
right, title and interest in and to all of the respective Released Matters
which
are referred to in the mutual general release set forth above and that he,
she
or it has not heretofore voluntarily, by operation of law or otherwise, assigned
or transferred or purported to assign or transfer to any person whomsoever
any
such Released Matters, or any part or portion thereof. Each of the
Parties agrees to indemnify and hold each of the other Parties harmless from
any
claim, demand, damage, liability, action or cause of action based on or
connected with or arising in any manner out of any such assignment or
transfer.
7. No
Admission of Liability. It is specifically understood and agreed
that this Agreement constitutes a complete compromise and settlement of disputed
claims, and that neither the execution of this Agreement nor the payment
of any
monies hereunder is to be deemed an admission of liability by the Parties
or any
of them. Each Party acknowledges that this Agreement is not, and
cannot be construed as, any admission of fault by the other
Parties.
8. Equitable
Remedies. Xxxxxxxx hereby acknowledge that the provisions of
Section 6 hereof are reasonable and necessary to protect the legitimate
interests of the Company and that any violation of such provisions would
result
in irreparable injury to the Company. In the event of a violation of
the provisions of Section 6 hereof, Xxxxxxxx agrees that the Company shall,
in
addition to all other remedies available to it, be entitled to equitable
relief
by way of injunction and any other legal or equitable remedies.
9. Representations
and Warranties. The Company, on the one hand, and Xxxxxxxx, on
the other hand, jointly and severally, expressly represents and warrants
to the
other that:
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(a) he
or it has the power, capacity and authority to execute, deliver and perform
this
Agreement and to consummate the transactions contemplated hereby and on behalf
of all whom might claim through him or it to bind them to the terms and
conditions of this Agreement;
(b) the
execution and delivery by he or it of this Agreement, and the performance
by he
or it of his or its obligations hereunder, have been duly and validly authorized
by all action on his or its part;
(c) this
Agreement has been duly and validly executed and delivered by his or it and
constitutes his or its legal, valid and binding agreement, enforceable in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, moratorium, insolvency, reorganization, fraudulent conveyance
or
other laws affecting the enforcement of creditors’ rights generally or by
general equitable principles, including without limitation, those limiting
the
availability of specific performance, injunctive relief and other equitable
remedies and those providing for equitable defenses;
(d) he
or it is not entering into this Agreement in reliance upon any express or
implied representation, agreement, or understanding of any kind by the other,
or
any person representing (or purporting to represent) each other, or any other
person, except as expressly stated in this Agreement and the other Parties
shall
not directly or indirectly be liable or responsible for the truth, accuracy,
or
enforcement of any representations, agreements, or understandings which may
now
or hereafter exist between any of the Parties and any other Non-Party person
and/or entity; and
(e) he
or it has signed the Agreement voluntarily, without any duress or undue
influence on the part, or on behalf, of any Party.
10. Miscellaneous
Provisions
(a) Future
Suits. If any Party hereafter commences any action or proceeding
against the other based upon any of the claims released by this Agreement,
the
provisions of this Agreement shall be deemed breached and such non-breaching
Party shall be entitled to recover attorneys' fees and other costs of suit
sustained by him, her or it in defending such action or proceeding and shall
be
indemnified by the other for such fees and costs. This Agreement may
be pleaded by such non-breaching Party as a defense, counterclaim or cross-claim
in any such action or proceeding.
(b) No
Disparagement. Each of the Parties agrees that he or it shall not
knowingly and intentionally make disparaging and damaging comments about
the
other, including his or its officers, directors, employees, investors,
shareholders, administrators, affiliates, divisions, subsidiaries and
predecessor and successor corporations, as applicable.
(c) Survival. All
representations, warranties and covenants of the Parties shall survive the
execution of this Agreement.
(d) No
Waiver. This Agreement (including all exhibits thereto) may not
be changed, waived, discharged, or terminated orally or in writing, except
by a
writing signed by the Parties and the observance of any such term may be
waived
(either generally or in a particular instance either retroactively or
prospectively) by a writing signed by the Parties against whom such waiver
is to
be asserted.
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(e) No
Precedential Value. The settlement reflected in this Agreement
shall be without precedential value. It shall not be used as
evidence, or in any other manner, in any court or other dispute resolution
proceeding, to create, prove, or interpret the obligations of the Parties
to
each other or to any other person or entity.
(f) Further
Assurances. Each of the Parties hereto agrees that he or it will,
from time to time after the date of this Agreement, execute and deliver such
other certificates, documents and instruments and take such other action
as may
be reasonably requested by the other Parties to carry out the actions and
transactions contemplated by this Agreement.
(g) Entire
Agreement. This Agreement constitutes the entire
agreement by and among the Parties, and any prior or contemporaneous
agreements, understandings, promises, representations, warranties and covenants,
whether written or oral, or whether expressed, implied or apparent are hereby
deemed merged into and made a part of this Agreement. The terms of
this Agreement are contractual and not merely a recital.
(h) Successors
and Assigns. This Agreement shall bind, and inure to the benefit
of, the respective directors, officers, shareholders, employees, agents,
partners, representatives, attorneys, parent and affiliated corporations,
subsidiaries, divisions, insurers and reinsurers, joint venturers, predecessors,
successors, beneficiaries, grantees, vendees, transferees, assigns, heirs,
executors, administrators, trustees, and estates of each of the Parties,
as
applicable.
(i) Expenses;
Taxes. Each Party shall bear his or its own costs and expenses
relating to the transactions contemplated in this Agreement including, without
limitation, costs and expenses of his, her or its respective
counsel. Xxxxxxxx agrees that any tax that may be payable on the
consideration received by Xxxxxxxx pursuant to this Agreement is the sole
responsibility of Xxxxxxxx. Xxxxxxxx agrees to indemnify, defend, and
hold Company harmless from and against any liability or claim for any tax
or
other governmental contribution or any penalty or interest thereon that may
be
incurred or demanded as a result of the receipt of the consideration provided
for in this Agreement.
(j) Counterparts. This
Agreement may be executed in any number of counterparts by the Parties hereto,
each of which shall constitute an original but all together shall constitute
but
one and the same instrument. Confirmation of execution by telecopy or
telefax of a facsimile signature page shall be binding upon that Party so
confirming.
(k) No
Other Contracts. There are no other contracts, instruments,
documents, agreements, understandings, facts, or rights of any person which
could alter the literal meaning or effect of this Agreement.
(l) No
Other Conditions. There are no conditions precedent or subsequent
to the obligations of or release or waivers by the Parties, except as expressly
stated in this Agreement.
(m) Governing
Law. This Agreement shall be construed in accordance with the
laws of the State of California without regard to conflict of laws
principles. If any action is filed to enforce or interpret any of the
terms or provisions of this Agreement or any of the other documents executed
in
connection with this Agreement, or otherwise, the Parties agree that the
appropriate venue shall be a state or federal court of competent jurisdiction
located in Los Angeles County, State of California.
(n) Construction. This
Agreement has been negotiated at arm’s length and between and among persons or
entities sophisticated and knowledgeable in the matters dealt with in this
Agreement. In addition, this Agreement was drafted by experienced and
knowledgeable legal counsel for each of the Parties. The provisions
of this Agreement shall be interpreted in a reasonable manner to effect the
purposes of the Parties and this Agreement.
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(o) Notices. All
notices, demands, consents, approvals, requests and other communications
required or permitted hereby shall be in writing and shall be deemed to have
been duly and sufficiently given only if (a) personally delivered with proof
of
delivery thereof (any notice or communication so delivered being deemed to
have
been received at the time so delivered), or (b) sent by Federal Express (or
other similar overnight courier) (any notice or communication so delivered
being
deemed to have been received only when delivered), (c) sent by telecopier
or
facsimile (any notice or communication so delivered being deemed to have
been
received if a copy is also delivered by one of the other means of delivery
and
shall be deemed to have been received (i) on the business day so sent, if
so
sent prior to 4:00 p.m. (based upon the recipient's time) of the business
day so
sent, and (ii) on the business day following the day so sent, if so sent
on a
non-business day or on or after 4:00 p.m. (based upon the recipient's time)
of
the business day so sent (unless actually received by the addressee on the
day
so sent)), or (d) sent by United States registered or certified mail, postage
prepaid, at a post office regularly maintained by the United States Postal
Service (any notice or communication so sent being deemed to have been received
only when delivered), in any such case addressed to the respective Parties
as
follows:
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If
to Xxxxxxxx:
Xxxxx
Xxxxxxxx
0000
Xxxxxxx Xxx
Xxxx
Xxxxx, XX 00000
Facsimile: ________________
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with
copy to:
Xxxxxx
X. Xxxxxxx, Partner
Horizon
Law Group, LLP
0000
Xxxx Xxxxxx Xxxxx 000
Xxxxxx,
XX 00000
Facsimile: 000-000-0000
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If
to the Company:
0000-X
Xxxxxxxx Xxx
Xxxxxx
Xxxx, Xxxxxxxxxx
Attention: Xxxxxx
X. Xxxxxxx
Facsimile: (000)
000-0000
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With
copy to (which copy shall not constitute notice):
Xxxxx
Peabody, LLP
Gas
Company Tower
000
Xxxx Xxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx
X. X. Xxxx-Xxxxx
Fax: (000)
000-0000
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or
to
such other address or party as the other Parties may have furnished to the
other
in writing in accordance herewith, except that notices of change of address
or
addresses shall only be effective upon receipt.
(p) Revocation. Xxxxxxxx
acknowledges that he has twenty-one (21) days within which to consider this
Agreement. If Xxxxxxxx signs this Agreement prior to the expiration
of the 21-day period, Xxxxxxxx acknowledges and agrees that he had adequate
time
and opportunity to fully consider this Agreement and to knowingly waive the
full
21-day period. Xxxxxxxx understands that he may revoke this Agreement
upon written notice to the Company within seven (7) days after execution
of it
by sending a written revocation of his intent to revoke via U.S. mail, or
hand
delivery within seven (7) days of execution of this Agreement.
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(q) Voluntary
Execution of Agreement. This Agreement is executed voluntarily
and without any duress or undue influence on the part or behalf of the Parties
hereto, with the full intent of releasing all of the Released
Matters. Each of the Parties acknowledge for itself that:
(a) it has read this Agreement; (b) it has been
represented in the preparation, negotiation, and execution of this Agreement
by
legal counsel of its own choice or that it has voluntarily declined to seek
such
counsel; (c) it understands the terms and consequences of this
Agreement and of the release it contains; and (d) it is fully aware
of the legal and binding effect of this Agreement.
[Signature
Page Follows]
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IN
WITNESS WHEREOF, the Parties have executed this Agreement on the respective
dates set forth below.
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Date:
September 21, 2007
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By:
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx
X. Xxxxxxx
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President
and CEO
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XXXXX
X. XXXXXXXX, an individual
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Date:
September 21, 2007
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By:
/s/ Xxxxx X. Xxxxxxxx
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