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 David J.
Williams (“Williams”). The Company and
Williams are hereinafter collectively referred to as the
“Parties.”
RECITALS
WHEREAS,
Williams is a party to that certain Employment Agreement dated
February 21, 2006, by and between Williams and the Company, as
extended (collectively, the “Employment
Agreement”);
WHEREAS,
Williams resigned from his position as the Chief Financial
Officer, effective September 5, 2007;
WHEREAS,
the Company and Williams 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
Williams 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 Williams under any and all agreements
between Williams and the Company), and subject to the
compliance by Williams of the provisions of Sections 1 and 6
hereof, the Company shall pay to Williams 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 Williams 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, Williams 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 Williams, 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, Williams’ 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 Williams’ 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 Sarbanes-Oxley 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. Williams 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. Williams
hereby agrees to waive any right to recover money damages or
other relief personal to Williams in any charge, complaint or
lawsuit filed by Williams or by anyone else on Williams’
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) Williams
vested stock options, (iv) Williams’ 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
Williams.
(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 . Williams
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”). Williams 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,
