fluid_8k-ex1001.htm


     

    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 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.

       

      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

      

       

      (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:

      


      
        	 	
                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.

              


      

      


                 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, directly or indirectly, concerning any Settlement Information
        to be
        released.  Williams agrees and acknowledges that the Company will be
        required to publicly announce Williams’ separation from the
        Company.

       

       

      
        
          
          

        

        
          3

          
            

          

        

        
          
          

        

      

      5.           Confidential
        Information.  Williams 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.  Williams agrees that he will not
        disclose any such confidential information, directly or indirectly, or use
        any
        of it in any way whatsoever.  Williams 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 Williams or otherwise
        coming into Williams’ 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.  Williams 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.  Williams 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, Williams 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 Williams, on
        the other hand, jointly and severally, expressly represents and warrants
        to the
        other that:

       

      
        
          
          

        

        
          4

          
            

          

        

        
          
          

        

      

      (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.

       

      
        
          
          

        

        
          5

          
            

          

        

        
          
          

        

      

      (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.  Williams agrees that any tax that may be payable on the
        consideration received by Williams pursuant to this Agreement is the sole
        responsibility of Williams.  Williams 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.  

       

      
        
          
          

        

        
          6

          
            

          

        

        
          
          

        

      

      (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:

       

      
        	
                If
                  to Williams:

                David
                  Williams

                2114
                  Roxanne Ave

                Long
                  Beach, CA  90815

                Facsimile:  ________________

                 

              	
                with
                  copy to:

                Thomas
                  M. Ffrench, Partner

                Horizon
                  Law Group, LLP

                1920
                  Main Street Suite 210

                Irvine,
                  CA  92614

                Facsimile:  949-261-2515

              
	 	 
	
                If
                  to the Company:

                Fluid
                  Media Networks, Inc.

                5813-A
                  Uplander Way

                Culver
                  City, California

                Attention:  Justin
                  F. Beckett

                Facsimile: (310)
                  665-0735

                 

              	
                With
                  copy to (which copy shall not constitute notice):

                Nixon
                  Peabody, LLP

                Gas
                  Company Tower

                555
                  West Fifth Street, 46th
                  Floor

                Los
                  Angeles, California 90013

                Attn:  Jenny
                  C. C. Chen-Drake

                Fax:  (213)
                  629-6001

              


      

       

      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.  Williams
        acknowledges that he has twenty-one (21) days within which to consider this
        Agreement.  If Williams signs this Agreement prior to the expiration
        of the 21-day period, Williams acknowledges and agrees that he had adequate
        time
        and opportunity to fully consider this Agreement and to knowingly waive the
        full
        21-day period.  Williams 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.

       

      
        
          
          

        

        
          7

          
            

          

        

        
          
          

        

      

       

      (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]

       

      
        
          
          

        

        
          8

          
            

          

        

        
          
          

        

      

      IN
        WITNESS WHEREOF, the Parties have executed this Agreement on the respective
        dates set forth below.

      


      
        


        
          	 	
                  FLUID
                    MEDIA NETWORKS, INC.

                
	 	 
	
                  Date:
                    September 21, 2007

                	
                  By:
                    /s/ Justin F. Beckett

                
	 	
                  Justin
                    F. Beckett

                
	 	
                  President
                    and CEO

                
	 	 
	 	 
	 	
                  DAVID
                    J. WILLIAMS, an individual

                
	 	 
	
                  Date:
                    September 21, 2007

                	
                  By:
                    /s/ David J. Williams

                
	 	 


        

        
 

        9