AGREEMENT AND AMENDMENT TO NOTE, PLEDGE AGREEMENT,
AND SETTLEMENT AND RELEASE AGREEMENT
This Agreement and Amendment to Note, Pledge Agreement, and Settlement
and Release Agreement (this "Agreement") is executed effective November 1, 1999
between SVI HOLDINGS, INC., a Nevada corporation, having an address for notices
at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("SVI"), KIELDUFF
INVESTMENTS LIMITED, having an address for notices at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ("Kielduff"), JYRIS GROUP, having an address for
notices at ▇▇▇▇▇ ▇, ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ("Jyris"), SOFTLINE LIMITED, a South African company, having an address
for notices at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Extension 13, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇ ("Softline"), SYSTEMS FOR BUSINESS INCORPORATED, a British Virgin Islands
corporation, having an address for notices at ▇.▇. ▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇, ▇▇. Sampson, Guernsey, Channel Islands GY1 3HS ("Systems"), and
IBIS SYSTEMS LIMITED, a company incorporated under the laws of England, having
an address for notices at ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇ ("Ibis"), who agree as follows:
1. RECITALS. This Agreement is made with reference to the following
recital of essential facts:
1.1. SVI and Kielduff entered into a Share Sale Agreement re
Ibis Systems Limited effective December 31, 1998 (the "Share Sale Agreement").
1.2. Pursuant to the Share Sale Agreement, Kielduff executed a
Promissory Note dated December 31, 1998 in the amount of $18,108,000 in favor of
SVI (the "Original Note").
1.3. The Original Note was amended pursuant to an Amendment to
Note dated September 1, 1999 and an Amendment to Note dated October 1, 1999,
both between SVI and Kielduff. The Original Note as amended is referred to as
the "Note."
1.4. In order to secure Kielduff's payment obligations under
the Note, Kielduff executed a Stock Pledge Agreement dated as of April 29, 1999
(the "Pledge Agreement"), under which Kielduff pledged to SVI all of the issued
and outstanding shares in the capital stock of Ibis represented by two (2)
shares (the "Ibis Shares").
1.5. Kielduff desires to sell the Ibis Shares to Jyris in
exchange for 3,840,000 shares of common stock of Integrity Holdings, Ltd. (the
"Integrity Shares").
1.6. Jyris is a wholly-owned subsidiary of Integrity Holdings,
Ltd. ("Integrity").
1.7. Under the terms of the Pledge Agreement, Kielduff may not
sell or otherwise dispose of the Ibis Shares without the prior written consent
of SVI.
1.8. SVI, Ibis, Systems and Softline are parties to a
Settlement and Release Agreement, dated as of December 31, 1998 (the "Settlement
Agreement") pursuant to which SVI agreed to pay a portion of the proceeds of the
Note to Systems and SVI, Softline and Systems agreed to release certain claims.
1.9. SVI is willing to consent to and/or ratify the sale of
the Ibis Shares to Jyris on the terms and conditions set forth in this
Agreement.
2. CONSENT TO TRANSFER. Subject to the terms and conditions in this
Agreement, effective as of the Closing Date, SVI consents to and/or ratifies the
transfer of the Ibis Shares to Jyris.
3. CLOSING. The parties shall close the transaction contemplated by
this Agreement (the "Closing") on December 6, 1999 or such other date and time
as the parties may agree in writing. The Closing shall take place at offices of
▇▇▇▇▇▇▇ ▇▇▇▇ Seidenwurm & ▇▇▇▇▇, LLP, ▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇▇. The "Closing Date" shall be the date on which the Closing actually
occurs. At the Closing:
3.1. DELIVERY OF IBIS SHARES. The Pledgeholder (as defined in
the Pledge Agreement) shall release the Ibis Shares to Jyris, together with the
Assignments (as defined in the Pledge Agreement).
3.2. DELIVERY OF INTEGRITY SHARES. Jyris shall deliver to the
Pledgeholder the Integrity Shares, issued in the name of Kielduff, and Kielduff
shall deliver to the Pledgeholder Assignments with respect to the Integrity
Shares.
4. AMENDMENT TO PROMISSORY NOTE. Effective as of the Closing Date, the
Note is hereby amended as follows:
4.1. CONVERSION OPTION. Kielduff hereby grants to SVI the
option (the "Conversion Option") to cancel the unpaid indebtedness evidenced by
the Note, or any portion of such unpaid indebtedness, in exchange for Integrity
Shares. The Conversion Option may be exercised by SVI giving written notice to
Kielduff at any time (the "Conversion Notice"). If the Conversion Option is
exercised, such portion of Kielduff's indebtedness under the Note identified in
the Conversion Notice shall be canceled in exchange for Integrity Shares at
$5.00 per share (the "Conversion Price"), and such indebtedness shall be reduced
by the amount of the Conversion Price multiplied by the number of Integrity
Shares received by SVI.
4.2. AMENDMENT TO PLEDGE AGREEMENT. The Note shall continue to
be secured by the Pledge Agreement, as amended by this Agreement. All references
to the Pledge Agreement in the Note shall refer to the Amended Pledge Agreement.
4.3. PAYMENT EXTENSION. Paragraph 1 of the Note is hereby
deleted, and the following provision substituted in its place:
"Payments. All amounts of principal and interest due under this Note
shall be paid to Holder on or before May15, 2000."
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4.4. CONFIRMATION OF NOTE. All other terms and provisions of
the Note not amended remain in full force and effect, and Kielduff hereby
reaffirms all of its obligations under the Note.
5. AMENDMENT TO PLEDGE AGREEMENT. Kielduff's obligations under the
Note, as amended by this Agreement, will be secured by a pledge of the Integrity
Shares in favor of SVI. Effective as of the Closing Date, the Pledge Agreement
is hereby amended as follows:
5.1. SUBSTITUTION OF COLLATERAL. The Integrity Shares are
hereby substituted for the Ibis Shares as collateral under the Pledge Agreement.
All references to the "Shares" in the Pledge Agreement shall be deemed to refer
to the Integrity Shares.
5.2. DEFINITION OF "OBLIGATIONS". All references to the
"Obligations" under the Pledge Agreement shall refer to (a) Kielduff's
obligations to SVI under the Note (and all renewals, extensions, amendments, and
changes of, or substitutions or replacements to, any of the obligations under
the Note), (b) Kielduff's obligations under this Agreement, (c) the faithful
performance by Kielduff of all of its obligations under the Share Sale
Agreement, and (d) the obligations of Kielduff and/or its affiliates to pay to
SVI the sum of US$633,000 pursuant to a certain receivable owing to SVI.
5.3. DEFINITION OF "COMPANY". All references in the Pledge
Agreement to "the Company" shall refer to Integrity, rather than Ibis.
5.4. DELIVERY OF SHARES. At the Closing, Kielduff shall (a)
concurrently and validly endorse the share certificate(s) evidencing the
Integrity Shares in blank and deliver such certificate(s) to the Pledgeholder
(as defined in the Pledge Agreement), and (b) deliver to Pledgeholder a duly
executed Assignment Separate from Certificate with respect to each certificate
representing the Integrity Shares.
5.5. COVENANTS. The covenants contained in paragraph 6 of the
Pledge Agreement are deleted. In lieu thereof, the covenants contained in
paragraph 9 of this Agreement shall apply. The breach of any of the covenants
contained in paragraph 9 of this Agreement shall constitute a breach of the
Pledge Agreement.
5.6. KIELDUFF'S REPRESENTATIONS AND WARRANTIES. Kielduff
represents and warrants that the representations and warranties contained in
paragraph 5 of the Pledge Agreement continue to be true and accurate in all
respects. In addition, Kielduff represents and warrants to SVI as follows:
(a) Kielduff will as of the Closing be the legal and
beneficial owner and holder of the Integrity Shares, free and
clear of all encumbrances.
(b) The Integrity Shares have been duly authorized
and validly issued and are fully paid and nonassessable.
(c) There are no options, warrants, rights (including
conversion or preemptive rights) or agreements for the
purchase or acquisition from Kielduff of any of the Integrity
Shares.
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5.7. CONFIRMATION OF PLEDGE AGREEMENT. All other terms and
provisions of the Pledge Agreement not amended remain in full force and effect,
and Kielduff hereby reaffirms its obligations under the Pledge Agreement.
6. AMENDMENT TO SETTLEMENT AGREEMENT. Effective as of the Closing Date,
the Settlement Agreement is hereby amended as follows:
6.1. DEFINITION OF "LOAN NOTE". All references to the "Loan
Note" under the Settlement Agreement shall refer to the Note (as amended by this
Agreement and all prior amendments).
6.2. AMENDMENT TO PARAGRAPH 2. Paragraph 2 of the Settlement
Agreement is hereby amended and restated in its entirety to read:
"2. SETTLEMENT.
"2.1 Providing Kielduff shall have repaid in cash
$13,608,000 under the Loan Note together with all interest and
collection costs thereon unconditionally and without any right of
recovery, SVI shall pay to Systems all further sums it receives in cash
from Kielduff under the Loan.
"2.2 If SVI exercises the Conversion Option, the
decision of whether to sell the Integrity Shares acquired upon exercise
of the Conversion Option (the "Conversion Shares") and the terms of
such sale (including the timing, the number of shares to be sold, and
the sale price) shall be determined by SVI in its sole and absolute
discretion. If SVI sells the Conversion Shares, the proceeds of such
sale shall be allocated as follows: (a) SVI shall retain the first
amount equal to the full amount of the Obligations, plus all accrued
and unpaid interest thereon under the Loan Note through the date of the
exercise of the Conversion Option; and (b) SVI shall pay to Systems the
next $4,500,000, plus all accrued and unpaid interest thereon under the
Loan Note through the date of the exercise of the Conversion Option.
After the amounts described in the preceding sentence have been paid in
full, any excess proceeds and any unsold Conversion Shares shall be
divided equally between SVI and Systems.
"2.3 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 (either directly from Kielduff or upon the sale of
Conversion Shares), SVI shall have no obligation to pay Systems any
amount whatsoever."
6.3. CONFIRMATION OF SETTLEMENT AGREEMENT. All other terms and
provisions of the Settlement Agreement not amended remain in full force and
effect, and each party to the Settlement Agreement hereby reaffirms all of its
obligations under the Settlement Agreement.
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7. COVENANTS OF KIELDUFF AND JYRIS. Effective as of the Closing Date,
Kielduff and Jyris covenant that until all of the Obligations (as defined in the
Pledge Agreement) have been fully and finally satisfied, Kielduff and Jyris will
fully and completely comply with the following affirmative and negative
covenants:
7.1. Kielduff and Jyris shall promptly inform SVI in writing
as soon as they become aware of: (a) any material adverse changes in Integrity's
financial condition, and (b) all existing and all threatened litigation, claims,
investigations, administrative proceedings or similar actions effecting
Integrity which could materially effect the financial condition of Integrity.
7.2. Kielduff shall defend any proceeding which seeks to, or
threatens to, affect, challenge, or impair SVI's security interest in the
Collateral and shall indemnify and hold SVI harmless from and against any and
all costs and expenses incurred in connection with any such action or
proceeding, including attorneys' fees and costs, other than any such action or
claim of a creditor or creditors of the SVI.
7.3. Kielduff shall, promptly upon request by SVI, execute and
deliver any documents or instruments, provide any notices, execute and file any
financing statements or other documents, and take any other actions which are,
in the reasonable judgment of SVI, necessary or desirable to perfect or continue
the perfection and first lien priority of SVI's security interest in the
Collateral, and to protect the Collateral against any adverse claims (in
violation of the representations and warranties in paragraph 5 of the Pledge
Agreement), and pay all reasonable costs incurred by SVI in connection
therewith.
7.4. Kielduff shall pay when due all taxes, assessments, and
liens, if any, upon the Collateral. Kielduff may withhold any such payment or
may elect to contest any lien if Kielduff is in good faith conducting
appropriate proceedings to contest the obligation to pay, so long as SVI's
interest in the Collateral is not jeopardized. In any such contest, Kielduff
shall represent itself and SVI and shall satisfy any final adverse judgment
before enforcement against the Collateral. Kielduff shall name SVI as an
additional obligee under any surety bond furnished in the contest proceedings.
7.5. Kielduff and Jyris shall not without the prior written
consent of the SVI:
(a) vote in favor of any action by Integrity to (i)
change the name or structure of Integrity or alter the
corporate, capital or legal structure of Integrity, including
the creation or acquisition of any subsidiaries; (ii) enter
into any transaction of merger or consolidation, or liquidate,
wind-up or dissolve itself (or suffer any liquidation or
dissolution); (iii) convey, sell, lease, sub-lease, encumber,
transfer or otherwise dispose of, in one transaction or a
series of transactions, all or any part of its business,
property or assets, whether now owned or hereafter acquired;
or (iv) acquire by purchase or otherwise all or a substantial
portion of the business, property or assets of, or stock or
other evidence of beneficial ownership of, any person or any
division or line of business of any person;
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(b) create or suffer to exist any further security
interest in the Collateral;
(c) sell or otherwise dispose of the Collateral or
any interest in the Collateral;
(d) vote in favor of payments or distributions from
Integrity other than in the ordinary course of business;
(e) divert any corporate opportunity from Integrity;
(f) vote in favor of any action by Integrity to sell,
transfer, encumber or otherwise dispose of all or any of its
assets including intangible and intellectual property, except
in the ordinary course of business in a commercially
reasonable transaction involving only unrelated and
unaffiliated parties;
(g) incur any additional indebtedness other than in
the ordinary course of business in a commercially reasonable
transaction involving only unrelated and unaffiliated parties;
(h) vote in favor of any action by Integrity to
create, incur, assume or permit to exist any lien on or with
respect to any property or asset of any kind;
(i) vote in favor of any action by Integrity to enter
into, amend, restate, modify or terminate any contracts except
in the ordinary course of business in a commercially
reasonable transaction involving unrelated and unaffiliated
parties;
(j) vote in favor of any action by Integrity to
increase the compensation payable to any officer or employee
other than in the ordinary course of business consistent with
prior practices;
(k) vote in favor of any action by Integrity to make
any single item of capital expenditure in excess of $50,000;
(l) vote in favor of any action by Integrity to enter
into or permit to exist any transaction (including, without
limitation, the purchase, sale, lease or exchange of any
property or the rendering of any service) with any affiliate
of Kielduff, Integrity or Jyris, on terms that are less
favorable to such person than those that might be obtained at
the time from persons who are not such an affiliate;
(m) vote in favor of any action by Integrity to pay
any dividends or make any other distribution of assets to
shareholders;
(n) vote in favor of any action by Integrity to issue
shares of capital stock or other securities or options or
warrants to purchase such securities;
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(o) vote in favor of any action by Integrity to
engage in any business activities substantially different than
those in which Integrity is presently engaged;
(p) vote in favor of any action by Integrity to cease
operations, liquidate, merge, transfer, acquire or consolidate
with any other entity, or change Integrity's name; or
(q) vote in favor of any action by Integrity to make
any loans or advances or to acquire any indebtedness.
7.6. Kielduff and Jyris will pro cure from Integrity and
furnish to SVI the following:
(a) QUARTERLY STATEMENTS. As soon as available and in
any event within 45 days after the end of each quarterly
fiscal period (except the last) of each fiscal year, copies of
the following, in each case setting forth in comparative form
the consolidated figures for the preceding fiscal year, all in
reasonable detail:
(i) consolidated balance sheets of Integrity
and its subsidiaries as of the close of the
three-month period then ended, setting forth in
comparative form the consolidated figures at the end
of the preceding fiscal year,
(ii) consolidated and consolidating
statements of income of Integrity and its
subsidiaries for the three-month period then ended,
setting forth in comparative form the consolidated
figures for the corresponding period of the preceding
fiscal year, and
(iii) consolidated and consolidating
statements of cash flows of Integrity and its
subsidiaries for the portion of the fiscal year
ending with such three-month period, setting forth in
comparative form the consolidated figures for the
corresponding period of the preceding fiscal year.
(b) ANNUAL STATEMENTS. As soon as available and in
any event within 90 days after the close of each fiscal year
of Integrity, copies of the following, in each case setting
forth in comparative form the consolidated figures for the
preceding fiscal year, all in reasonable detail and
accompanied by a report thereon of a firm of independent
public accountants of recognized national standing or a firm
reasonably acceptable to SVI:
(i) consolidated balance sheets of Integrity
and its subsidiaries as of the close of such fiscal
year, and
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(ii) consolidated and consolidating
statements of income and changes in shareholders
equity and cash flows of Integrity and its
subsidiaries for such fiscal year.
(c) SEC AND OTHER REPORTS. Promptly upon their
becoming available, one copy of each financial statement,
report, notice or proxy statement sent by Integrity to
stockholders generally and of each periodic or current report,
and any registration statement or prospectus filed by
Integrity or any of its subsidiaries with any securities
exchange or the SEC or any successor agency, and copies of any
orders in any proceedings to which Integrity or any of its
subsidiaries is a party, issued by any governmental agency,
federal or state, having jurisdiction over Integrity or any of
its subsidiaries.
8. REGISTRATION RIGHTS FOR THE INTEGRITY SHARES. It is a condition
precedent to SVI's obligations under this Agreement (including the granting of
SVI's consent to the transfer of the Ibis Shares to Jyris) that SVI shall have
entered into a Registration Rights Agreement with Integrity which provides that,
for so long as SVI owns or holds a security interest in shares of common stock
of Integrity, SVI shall be entitled to the registration rights set forth in this
paragraph 8.
8.1. Integrity shall agree to register the Integrity Shares
under the Securities Act of 1933 (the "Act") (other than on ▇▇▇ ▇▇▇▇▇ ▇-▇ or
S-8) within ninety days after SVI delivers a written request for such
registration, including compliance with California blue sky laws. Integrity or
Kielduff shall bear all costs and expenses of such registration.
8.2. Integrity shall agree to promptly give to SVI written
notice of its decision to register any of its securities under the Act (other
than on SEC forms S-4 or S-8) and shall include in such registration (and any
related qualification under blue sky laws or other compliance) and in any
underwriting involved therein, any or all of Integrity Shares purchased by SVI
from Kielduff in exchange for the cancellation of indebtedness under the Note
which SVI specifies in a written request made within fifteen (15) days after
receipt of the written notice from Integrity.
8.3. Integrity shall agree to inform SVI in writing of the
initiation of each such registration and the completion thereof. Integrity shall
agree to:
(a) Keep such registration effective for so long as
any other selling shareholder registration statement of
Integrity is kept effective, or until SVI has completed the
distribution described in the registration statement relating
thereto, whichever first occurs;
(b) Furnish such reasonable number of prospectuses
and other documents incident thereto as from time to time SVI
may reasonably request; and
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(c) In connection with any underwritten registration,
Integrity will enter into any underwriting agreement
reasonably necessary to effect the offer and sale of the
shares purchased by SVI under this Agreement, provided such
underwriting agreement contains customary underwriting
provisions.
9. BOARD REPRESENTATION. For so long as SVI owns or holds a security
interest in shares of common stock of Integrity, Kielduff and Jyris shall use
their best efforts to nominate and elect two designees of SVI to the Board of
Directors of Integrity (the "Integrity Board") in accordance with this paragraph
9. In addition, Kielduff and Jyris shall use their best efforts to cause
Integrity to (a) reimburse any designee of SVI hereunder for all reasonable
expenses incurred as a director and to provide such compensation as may be
received by other non-employee directors of Integrity, including indemnity and
advancement of expenses to the fullest extent permitted under applicable law;
and (b) provide, at Integrity's expense, directors and officers liability
insurance coverage reasonably acceptable to SVI for any member of the Integrity
Board designated by SVI.
10. TERMINATION OF REPRESENTATIONS AND INDEMNITIES. As of the Closing
Date, the warranties, representations and indemnities provided by SVI under the
Share Sale Agreement including, without limitation, under the Deed of Indemnity
(Schedule 4), and under paragraph 5 and Schedule 2 to the Share Sale Agreement
are terminated, and SVI shall have no liability under any such warranties,
representations and indemnities. Kielduff and Jyris expressly waive any claims
they may have against SVI with respect to such warranties, representations and
indemnities.
11. WAIVER OF STATUTORY RIGHTS. The parties acknowledge that they may
hereafter discover facts different from, or in addition to, those now known or
believed to be true regarding the matters described in this Agreement, or
emanating therefrom, and agree that this Agreement shall remain in full force
and effect, notwithstanding the existence of any such difference or additional
facts. In this connection, each party expressly waives application of Section
1542 of the California Civil Code and 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."
12. TERMINATION OF COVENANT NOT TO COMPETE. As of the Closing Date, the
covenants of SVI set forth in paragraph 7 of the Share Sale Agreement are
terminated and of no further force and effect.
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.
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15. VENUE AND JURISDICTION. 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.
16. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which is deemed an original and all of which together constitute one
document.
17. TIME OF ESSENCE. Time and strict and punctual performance are of
the essence with respect to each provision of this Agreement.
18. ATTORNEY'S FEES. The prevailing party(ies) 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(ies) 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.
19. 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.
20. 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.
21. PRIOR UNDERSTANDINGS. This Agreement and all documents specifically
referred to and 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.
22. INTERPRETATION. Whenever the context so requires in this Agreement,
all words used in the singular may include the plural (and vice versa) and the
word "person" includes a natural person, a corporation, a firm, a partnership, a
joint venture, a trust, an estate or any other entity. The terms "includes" and
"including" do not imply any limitation. For purposes of this Agreement, the
term "day" means any calendar day and the term "business day" means any calendar
day other than a Saturday, Sunday or any other day designated as a holiday under
California Government Code Sections 6700-6701. Any act permitted or required to
be performed under this Agreement upon a particular day which is not a business
day may be performed on the next business day with the same effect as if it had
been performed upon the day appointed. No remedy or election under this
Agreement is exclusive, but rather, to the extent permitted by applicable law,
each such remedy and election is cumulative with all other remedies at law or in
equity.
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23. 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.
24. SUCCESSORS-IN-INTEREST AND ASSIGNS. Neither Kielduff nor Jyris may
voluntarily or by operation of law assign, hypothecate, delegate or otherwise
transfer or encumber all or any part of its rights, duties or other interests in
this Agreement without the prior written consent of SVI, which consent may be
withheld in SVI's sole and absolute discretion. Any such transfer in violation
of this paragraph is void. Subject to the foregoing and any other restrictions
on transferability contained in this Agreement, this Agreement is binding upon
and inures to the benefit of the successors-in-interest and assigns of each
party to this Agreement.
25. NOTICES. All notices or other communications required or permitted
to be given to a party to this Agreement shall be in writing and shall be
personally delivered, sent by certified mail, postage prepaid, return receipt
requested, or sent by an overnight express courier service that provides written
confirmation of delivery, to such party at its address as set forth above in the
introductory paragraph of this Agreement. Each such notice or other
communication shall be deemed given, delivered and received upon its actual
receipt, except that if it is sent by mail in accordance with this paragraph,
then it shall be deemed given, delivered and received three days after the date
such notice or other communication is deposited with the United States Postal
Service in accordance with this paragraph. Any party to this Agreement may give
a notice of a change of its address to the other party(ies) to this Agreement.
26. WAIVER. Any waiver of a 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.
27. DRAFTING AMBIGUITIES. Each party to this Agreement and its legal
counsel have reviewed and revised 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.
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28. INDEMNIFICATION OF PLEDGEHOLDER. The parties shall indemnify,
defend, and hold Pledgeholder harmless from and against any and all actions,
causes of action, claims, demands, expenses, and liabilities that Pledgeholder
may suffer or incur by virtue of its role as Pledgeholder under this Agreement;
provided, however, the foregoing indemnification will not relate to any such
matter arising out of the gross negligence or intentional misconduct of
Pledgeholder. Pledgeholder will not be liable to Kielduff, SVI or Integrity for
any action taken or omitted to be taken by Pledgeholder except for
Pledgeholder's own gross negligence or intentional misconduct.
SVI HOLDINGS, INC., SYSTEMS FOR BUSINESS INC.,
a Nevada corporation a British Virgin Islands corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------- -----------------------------
Its: CEO Its: Vice President
----------------------------- -----------------------------
SOFTLINE LIMITED IBIS SYSTEMS LIMITED,
a South African company an England company
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------- -----------------------------
Its: CEO Its: Managing Director
KIELDUFF INVESTMENTS LIMITED, JYRIS GROUP
an Ireland company
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------- -----------------------------
Its: Vice President Its: Vice President
----------------------------- -----------------------------
I ACCEPT THE OBLIGATIONS IMPOSED
UPON ME UNDER THIS AGREEMENT:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., Pledgeholder
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