SETTLEMENT AND RELEASE AGREEMENT
This Settlement and Release Agreement (the "Agreement") is entered into
effective December 31, 1998 by and among SVI Holdings, Inc., a Nevada
corporation, ("SVI"), Softline Limited, a South African company ("Softline"),
Systems for Business Incorporated, a British Virgin Islands corporation,
("Systems"), Kielduff Investments Limited, an Ireland company ("Kielduff") and
Ibis Systems Limited, a company incorporated under the laws of England ("Ibis"),
who agree as follows:
1. RECITALS.
1.1. On or about August 1997, Systems and Softline entered
into an Acquisition Agreement in Respect of Trade Marks, an Acquisition of
Business Agreement and certain related agreements (collectively, the "Prior
Purchase Agreements").
1.2. SVI has assumed certain obligations of Softline under the
terms of the Prior Purchase Agreements.
1.3. SVI and Kielduff have entered into a Share Sale Agreement
evenly dated herewith (the "Ibis Purchase Agreement") under which SVI shall sell
to Kielduff all of the issued and outstanding shares of Ibis. Kielduff has
agreed to deliver to SVI a Loan Note (as defined in the Ibis Purchase Agreement)
as part of the requirements of the Ibis Purchase Agreement. The Ibis Purchase
Agreement has been facilitated by Systems.
1.4. In the event of consumation and performance of the Ibis
Purchase Agreement Systems shall have certain claims against Softline and SVI
arising out of the Prior Purchase Agreements and the Ibis Purchase Agreement.
1.5. The parties intend to effect a settlement and release of
the certain matters among them as more fully set forth below.
2. SETTLEMENT. Providing Kielduff shall have repaid $13,608,000 under
the Loan Note together with all interest and collection costs thereon
unconditionally and without any right of recovery: (a) SVI shall pay to Systems
all further sums it receives from Kielduff under the Loan Note, and (b) on
System's request SVI will assign the benefits of the Loan Note to Systems
together with the benefits of any security held in relation thereto. If SVI does
not receive the sum of $13,608,000 together with all interest and collection
costs thereon in accordance with the Loan Note, SVI shall have no obligation to
pay Systems any amount whatsoever.
3. RELEASE BY SVI AND SOFTLINE. Upon performance in full of paragraph 2
above, SVI and Softline on their own behalf and on behalf of their respective
subsidiaries, officers, directors, shareholders, employees, agents, attorneys,
representatives, consultants, predecessors, successors and affiliates fully and
forever releases, discharges, and dismisses all claims, demands, actions, causes
of action and rights, in law or in equity, in the nature of an administrative
proceeding or otherwise (known, unknown, contingent, accrued, inchoate or
otherwise) which SVI and Softline have or may have against Systems and its
respective subsidiaries, officers, affiliates, shareholders, its subsidiaries,
officers, directors, shareholders, employees, agents, attorneys,
representatives, consultants, predecessors, successors, and affiliates arising
out of the Prior Purchase Agreements. For the purposes of this paragraph 3,
"affiliate" shall mean any person or entity controlled by, controlling, or under
common control with, directly or indirectly, the referenced person or entity.
1
4. RELEASE BY SYSTEMS. Upon performance in full of paragraph 2 above,
Systems on its own behalf and on behalf of its respective subsidiaries,
officers, directors, shareholders, employees, agents, attorneys,
representatives, consultants, predecessors, successors and affiliates fully and
forever releases, discharges, and dismisses all claims, demands, actions, causes
of action and rights, in law or in equity, in the nature of an administrative
proceeding or otherwise (known, unknown, contingent, accrued, inchoate or
otherwise) which Systems has or may have against SVI and Softline and their
respective subsidiaries, officers, affiliates, shareholders, its subsidiaries,
officers, directors, shareholders, employees, agents, attorneys,
representatives, consultants, predecessors, successors, and affiliates arising
out of the Prior Purchase Agreements. For the purposes of this paragraph 4,
"affiliate" shall mean any person or entity controlled by, controlling, or under
common control with, directly or indirectly, the referenced person or entity.
5. WARRANTY, REPRESENTATION AND COVENANT. The parties to this Agreement
warrant, represent and covenant that they have not previously assigned or
transferred in any manner, or purported to have assigned or transferred in any
manner, any of the claims described or set forth in the paragraphs 3 and 4
above.
6. NO ADMISSION OF LIABILITY. Nothing contained in this Agreement shall
be construed as an admission by any party to this Agreement of any liability of
any kind to any party to this Agreement or any other person.
7. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
8. FURTHER ASSURANCES. Each party to this Agreement shall execute all
instruments and documents and take all actions as may be reasonably required to
effectuate this Agreement.
9. VENUE AND JURISDICTION. For purposes of venue and jurisdiction, this
Agreement shall be deemed made and to be performed in the City of San Diego,
California.
10. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original and all of which together shall constitute
one document.
11. ATTORNEY'S FEES. In the event any litigation, arbitration,
mediation, or other proceeding ("Proceeding") is initiated by any party against
any other party to enforce, interpret or otherwise obtain judicial or
quasi-judicial relief in connection with this Agreement, the prevailing party in
such Proceeding shall be entitled to recover from the unsuccessful party all
costs, expenses, actual attorney's and expert witness fees, relating to or
arising out of (1) such Proceeding (whether or not such Proceeding proceeds to
judgment), and (2) any post-judgment or post-award proceeding including without
limitation one to enforce any judgment or award resulting from any such
Proceeding. Any such judgment or award shall contain a specific provision for
the recovery of all such subsequently incurred costs, expenses, actual
attorney's and expert witness fees.
12. MODIFICATION. This Agreement may be modified only by a contract in
writing executed by the party to this Agreement against whom enforcement of such
modification is sought.
2
13. HEADINGS. The headings of the paragraphs of this Agreement have
been included only for convenience, and shall not be deemed in any manner to
modify or limit any of the provisions of this Agreement, or be used in any
manner in the interpretation of this Agreement.
14. INTERPRETATION. Whenever the context so requires in this Agreement,
all words used in the singular shall be construed to have been used in the
plural (and vice versa), each gender shall be construed to include any other
genders, and the word "person" shall be construed to include a natural person, a
corporation, a firm, a partnership, a joint venture, a trust, an estate or any
other entity.
15. PARTIAL INVALIDITY. Each provision of this Agreement shall be 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
shall, to any extent, be invalid or unenforceable, the remainder of this
Agreement, or the application of such provision to persons or circumstances
other than those as to which it is held invalid or unenforceable, shall not be
affected by such invalidity or unenforceability, unless such provision or such
application of such provision is essential to this Agreement.
16. WAIVER. Any waiver of a default under this Agreement must be in
writing and shall not be a waiver of any other default concerning the same or
any other provision of this Agreement. No delay or omission in the exercise of
any right or remedy shall impair such right or remedy or be construed as a
waiver. A consent to or approval of any act shall not be deemed to waive or
render unnecessary consent to or approval of any other or subsequent act.
17. DRAFTING AMBIGUITIES. Each party to this Agreement and its legal
counsel have reviewed or have had an opportunity to review this Agreement. The
rule of construction that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
of any amendments or exhibits to this Agreement.
18. EFFECTIVENESS. This Agreement shall become effective when it has
been executed by all of the parties to this Agreement.
SVI HOLDINGS, INC., SYSTEMS FOR BUSINESS INC.,
a Nevada corporation a British Virgin Islands corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------ ---------------------------
Its: President Its: Director
----------------------- --------------------------
IBIS SYSTEMS LIMITED,
SOFTLINE LIMITED an England company
a South African company
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------- ----------------------------
Its: Director Its:
------------------------ ---------------------------
KIELDUFF INVESTMENTS LIMITED,
an Ireland company
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-------------------------
Its: Director
----------------------------
3