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SETTLEMENT AND MUTUAL RELEASE
AGREEMENT
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LEWIS JAFFE
and
SVI MEDIA, INC.
October 16, 2007
SETTLEMENT AND MUTUAL RELEASE AGREEMENT
I
PARTIES
THIS SETTLEMENT
AND MUTUAL RELEASE AGREEMENT (the
“Agreement”) is entered into with an effective
date of the 16 th day
of October, 2007 (“Effective Date”), by and
between LEWIS JAFFE, an individual residing in the State of
California (“Jaffe”); and
, SVI MEDIA, INC., a Nevada corporation formerly known as
OXFORD MEDIA, INC. (“SVI”). Jaffe and SVI are
sometimes referred to collectively herein as the
“Parties”, and each individually as a
“Party”.
II
RECITALS
A.
Jaffe
was employed by SVI as its Chief Executive Officer
(“CEO”) in order to render services generally
associated with the CEO of a public company similar in size
to SVI.
B.
Jaffe’s
employment with SVI was subject to a written Executive
Employment Agreement effective 15 February 2007 (the
“Employment Agreement”), providing the terms and
conditions of Jaffe’s employment with SVI.
C.
Jaffe
also currently serves as a member of the Board of Directors
of SVI (the “SVI Board”).
D.
Jaffe
desires to tender his resignation as the CEO of SVI and
terminate his employment relationship with SVI, with said
termination to have an effective date of 31 October
2007.
E.
Jaffe
also desires to resign from the SVI Board, with said
resignation to be effective as of and on the 17 th day
of October 2007.
F.
The
Parties mutually desire to have Jaffe voluntarily terminate
his employment relationship without dispute or cause,
effective as of 31 October 2007 (the “Employment
Termination Date”), and to terminate his status as a
member of the Board effective as of 17 October 2007 (the
“Board Termination Date”). SVI conditionally
agrees to the terms and conditions of this Agreement provided
Jaffe: (i) enters into and complies with all of the terms and
conditions of this Agreement, including but not limited to
the provision of assurances to SVI that he will not assert
any claims of any kind against SVI arising out of the
Employment Agreement and his status as a member of the SVI
Board; and, (ii) abides by and honors his obligations to
maintain and protect the Trade Secrets and Confidential
Information of SVI and its affiliates, subsidiaries,
predecessors, parents, related businesses and
entities.
G.
Jaffe
conditionally offers to voluntarily terminate his employment
relationship with SVI without dispute, effective as of the
Employment Termination Date, and to terminate his status as a
member of the SVI Board effective as of the Board Termination
Date, in exchange for valid consideration to be transferred
by SVI hereunder, so long as SVI enters into and complies
with all of the terms and conditions of this Agreement,
including but not limited to the provision of assurances to
Jaffe that SVI will not assert any claims of any kind against
Jaffe arising out of Jaffe’s employment with SVI and
his status as a member of the SVI Board.
H.
The Parties
agree that so long as both Parties satisfy their respective
obligations hereunder that the Employment Agreement will be
terminated in all respects except as otherwise expressly
provided for herein, and both Parties will waive any and all
rights, remedies, and recoveries under the Employment
Agreement.
I.
This
Agreement shall specifically encompass all claims and related
factual and legal circumstances noted above (collectively,
the “Claims”). As such, it is the intent of the
Parties that their respective rights and obligations to each
other from this day forward shall be determined exclusively
under the terms of this Agreement, and that this Agreement
supersedes, amends and restates any other employment
agreements between the Parties.
J.
All
Parties are desirous of settling the Claims and releasing
each other from all future liability.
K.
NOW, THEREFORE, in consideration of the
promises and the mutual covenants contained herein, and for
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties,
intending to be legally bound, hereby agree as
follows:
III
RELEASE
3.1
Exchange . In consideration of the
execution of this Agreement, the payments and obligations
described below to be made or satisfied, as appropriate, by
SVI, the satisfaction of the obligations of each of the
respective Parties hereunder, and other good and valuable
consideration, the receipt and value of which is hereby
confirmed, Jaffe on the one hand, and SVI on the other hand,
shall hereby fully, finally and forever settle and release
each other from any and all claims, losses, fines, penalties,
damages, demands, judgments, debts, obligations, interests,
liabilities, causes of action, breaches of duty, costs,
expenses, judgments and injunctions of any nature whatsoever,
whether known or unknown, arising out of or related to the
relationships between the Parties prior to the Effective
Date, specifically including, but not limited to, the Claims
(cumulatively referred to as the “Released
Claims”).
3.2
Complete Release and Hold Harmless .
All Parties, for themselves, itself, their heirs, executors,
administrators, successors, and assigns, hereby agree to
release, discharge and hold harmless each other and the
other’s directors, employees, shareholders, managers,
officers, members, affiliates, subsidiaries, predecessors,
parents, related businesses and entities, attorneys and each
of their successors and assigns from any and all known and
unknown claims of every nature and kind whatsoever which they
now or hereafter may have with respect to each other and/or
the Claims, notwithstanding Section 1542 of the California
Civil Code, which provides that:
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"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, AND WHICH IF KNOWN BY HIM, MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR."
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All rights under
§1542 of the California Civil Code, as well as under any
other statutes or common law principles of similar effect,
are hereby expressly, fully, knowingly, intentionally and
forever waived and relinquished by the Parties. Each Party
hereby acknowledges that each understands the significance
and consequences of such waiver under §1542 of the
California Civil Code, and that each had the opportunity to
seek the advice of legal counsel of its choice.
3.3
Scope of Jaffe’s Release . Jaffe
further expressly understands that the rights being waived
hereunder specifically include, but are not limited to, any
and all claims under (as any of the same may be amended from
time to time) Title VII of the Civil Rights Act of 1964;
Sections 1981 and 1983 of the Civil Rights Act of 1866; Equal
Pay Act; Americans with Disabilities Act; Age Discrimination
in Employment Act; Employee Retirement Income Security Act;
Fair Labor Standards Act; Family and Medical Leave Act; WARN
Act; the United States and California Constitutions;
California Fair Employment and Housing Act; California Family
Rights Act; California Labor Code; any applicable California
Industrial Welfare Commission Wage Order; with respect to the
foregoing constitutional and statutory references, any
comparable constitution, statute or regulation of any other
state; all claims of discrimination or harassment on account
of race, sex, sexual orientation, national origin, religion,
disability, age, pregnancy, veteran’s status, or any
other protected status under any federal or state statute; any
federal, state or local law enforcing express or implied
employment contracts or covenants of good faith and fair
dealing; any federal, state or local laws providing recourse
for alleged wrongful discharge or constructive discharge,
termination in violation of public policy, tort, physical or
personal injury, emotional distress, fraud, negligent
misrepresentation, defamation, and any similar or related
claim; together with any claim under any other local, state or
federal law or constitution governing employment,
discrimination or harassment in employment, or the payment of
wages or benefits, whether or not now known, suspected or
claimed, which Jaffe ever had, now has, or may claim to have
in the future as of the date of this Agreement. This
Agreement and the scope of the release by Jaffe hereunder
expressly includes any statutory claims, including, but not
limited to, claims under the Age Discrimination in Employment
Act (the “ADEA”) and the Older Workers’
Benefit Protection Act (“OWBPA”), except that this
Agreement does not waive rights or claims under the ADEA which
may arise after the Effective Date of this
Agreement.
3.4
After Acquired Information . The
Parties acknowledge that they may hereafter discover
information, facts, or circumstances different from or in
addition to those which they now know or believe to be true.
Except as otherwise provided herein to the contrary, this
Agreement shall remain in full force and effect in all
respects notwithstanding such discovery, and the Parties
expressly accept and assume the risk of such possible
additions to or differences from those facts now known or
believed to be true.
3.5
Enforceability . The enforceability
of this Agreement is conditioned upon each respective Party
satisfying its respective obligations hereunder.
3.6
Assignment of Released Claims . The
Parties hereby covenant that none of the Released Claims has
been assigned to any other person, and that no other person
has any interest in any of the Released Claims. In the event
any other person asserts any interest with respect to the
Released Claims, then the Party breaching this covenant shall
fully defend and indemnify the Party against whom such claim
is asserted for any and all damages, costs, and fees of any
kind.
3.7
Specific Exclusion . It is expressly
understood that the release contained in this Agreement does
not encompass or include any of the following:
(a) The
promises and obligations of the Parties under this
Agreement.
(b) The
promises and obligations of Jaffe under the Employment
Agreement intended to survive termination, as reflected in
Section 6.5, below.
(c) The
intentionally willful, tortious, or criminal acts of either
Party after the execution of this Agreement.
3.8 No
Admission of Liability . Notwithstanding the
terms and conditions of this Agreement, execution hereof
shall in no manner or form constitute the admission of
liability or responsibility of either Party in respect to the
Claims.
IV
TERMINATE OF EMPLOYMENT AND BOARD
RELATIONSHIP
4.1
Voluntary Termination of Employment .
The Parties agree that Jaffe has voluntarily terminated his
employment with SVI, and that his last day of employment by
and with SVI shall be deemed to be the 31 st day
of October, 2007. As of the Employment Termination Date and
as additional consideration hereunder, Jaffe shall have
voluntarily resigned any and all positions he held in and
with SVI. Notwithstanding the Employment Termination Date,
the Employment Agreement shall be deemed to be terminated,
except for those provisions contained therein which
specifically are to survive termination, as of and on the
Effective Date.
4.2
Voluntary Resignation from the SVI
Board . The Parties agree that Jaffe has
voluntarily resigned from the SVI Board, and that his
resignation shall be effective as of 17 October 2007. As of
the Board Termination Date and as additional consideration
hereunder, Jaffe shall have voluntarily resigned from the SVI
Board, and SVI shall continue to provide and afford Jaffe
with all indemnification protection as was in place at the
time of the Board Termination Date. The Parties agree that no
other amounts of any kind are owed by SVI to Jaffe in regard
to his tenure as a member of the SVI Board
4.3
Payment of Amounts Owed to Jaffe .
The Parties hereby agree to the following payments which
shall represent all amounts due Jaffe for unpaid and accrued
wages and benefits, if applicable, including but not limited
to sick leave, vacation time, severance, and all other
amounts which may be due to Jaffe from SVI hereafter under
the Employment Agreement, and Jaffe shall neither make, nor
be entitled to any other amounts:
4.3.1.
Accrued Salary . The Parties agree
that the total amount of accrued salary owed to Jaffe is
Ninety Two Thousand Five Hundred Seventy Six Dollars and
Ninety Two Cents ($92,576.92), which amount is referred to
herein as the “Accrued Salary”. The Accrued Salary
will continue to be owed by SVI to Jaffe, without imposition
of any interest or further amounts, and will be due and
immediately payable upon the earlier of the following to
occur: (i) the sale of substantially all of SVI’s assets
or outstanding shares of stock; or, (ii) SVI reports that it
is profitable in any Form 10K or 10Q filed with Securities and
Exchange Commission.
4.3.2.
Accrued Vacation Pay . The Parties
agree that the total amount of accrued vacation pay owed to
Jaffe is Twenty Five Thousand Eight Hundred Twenty Three
Dollars ($25,823), which amount is referred to herein as the
“Accrued Vacation”. The Accrued Vacation will
continue to be owed by SVI to Jaffe, without imposition of any
interest or further amounts, and will be paid, in-full, on or
before 05 November 2007.
4.3.2.
Health Insurance Coverage . The
Parties hereby agree that as additional consideration
hereunder, SVI, at its sole cost and expense, shall maintain
in full force and effect the health insurance benefits
provided to Jaffe for a period of twelve (12) months from the
Effective Date. Thereafter, such coverage shall terminate,
unless Jaffe makes a proper election to continue such coverage
under COBRA, in which case all such benefits shall be at his
sole cost and expense. Any and all other coverage of any kind
extending beyond the terms and conditions of this Agreement
will be solely at the expense of Jaffe and subject to the
terms and conditions of the documents governing the medical
plan. It is the sole responsibility of Jaffe to comply with
said terms and conditions, and SVI will have no liability for
the future failure of Jaffe to acquire COBRA
coverage.
4.4
Express Waiver of Any Other Amounts .
Jaffe hereby acknowledges that he is not entitled to receive,
and will not claim, any damages, rights, benefits, or
compensation other than as expressly set forth in this
Agreement. Specifically, no vacation, benefits, earned or
paid time off, or other accrual-based benefits of any kind
(“Post Termination Benefits”) will accrue, vest
or otherwise be credited to Jaffe after the Effective Date.
Jaffe expressly waives, foregoes, and denies any right or
claim to such Post Termination Benefits and acknowledges that
no compensation, remuneration, or other form of payment or
benefit is forthcoming based thereon, other than as the
Parties expressly agree under Article V, below.
V
CONTINUED SERVICES
5.1
Transition Period . The Parties have
agreed that Jaffe’s employment will terminate as of and
on the Employment Termination Date. During and throughout the
period commencing on the Effective Date and continuing up to
and until the Employment Termination Date (the “The
Transition Period”), the Parties shall be bound by the
following:
(a) During
the Transition Period SVI shall pay to Jaffe the base salary,
at the same intervals, as in effect as of the Effective Date,
with said base salary guaranteed during the Transition Period
unless Jaffe shall terminate his employment prior to the end
of the Transition Period. It is expressly understood that the
base salary does not include any other benefits or allowances
(such as a car allowance or a phone allowance, for example),
and that no such payments will be made to SVI to Jaffe unless
expressly agreed upon by the Parties in writing.
(b) Jaffe
shall render those services to SVI during the Transition
Period as instructed by the SVI Board.
5.2
Contractor Services . Subsequent to
the Employment
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