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SETTLEMENT AGREEMENT AND RELEASE
THIS SETTLEMENT AGREEMENT AND RELEASE (“Settlement Agreement”) is
entered into this 7th day of September, 2018 (“Effective Date”) by and between Walter Pena,
an Individual (“Pena”) on the one hand and Vivid, Inc., a California corporation (“Vivid”)
and John Comeau, an Individual (“Comeau”) on the other hand. Pena, Vivid, and Comeau
are sometimes referred to herein, collectively, as the “Parties,” and individually, as a “Party.”
The Parties agree as follows:
1. A dispute has arisen between Pena, Vivid and Comeau arising out of and/or related
to the management of Vivid. Pena alleges that he was entitled to shareholder distributions in
2010 and 2011 but Vivid failed to make these distributions. Vivid and Comeau dispute this
allegation.
2. Pena is the plaintiff in the action entitled “Walter Pena v. Vivid, Inc. et al.,” Case
No. 16-CV-304459, pending in the Superior Court of California, County of Santa Clara (the
“Action”), in which Pena seeks to recover from Vivid and Comeau damages arising out of an
alleged breach of contract and fiduciary duty, among other things.
3. Vivid and Comeau filed an Answer in the Action denying the allegations set forth
in Pena’s complaint.
4. The Parties now desire to resolve the Action without further litigation. This
Settlement Agreement constitutes the settlement and release of disputed claims, and shall not
be construed as an admission of liability on the part of Vivid or Comeau.
5. Vivid agrees to timely pay the total settlement amount of seventeen thousand
dollars ($17,000) (“Settlement Amount”) to Pena. Payment will be as follows: (1)
$2,500.00 paid on December 15, 2018, (2) $2,500.00 no later than January 15, 2018, (3)
$2,500.00 no later than February 15, 2018, and (4) $2,500.00 no later than March 15, 2019.
and (5) $ 2,500 no later than April 15, 2019 (5) $ 2,500 no later than May 15, 2019 and (5) $
2,000 no later than June 15, 2019 Within one (1) business day of the execution of this
Settlement Agreement counsel of record for Pena shall provide in writing instructions as to
how these payments should be made, including, for example, any wiring instructions or
whether any check should be made jointly payable to counsel and Pena. In making these
payments, Vivid has the right to rely on instructions from Pena’s counsel.
6. Upon receipt by Pena of a copy of this Settlement Agreement executed by Vivid
and Comeau, Pena shall file a Notice of Conditional Settlement in the Action. Within five (5)
business days of the Settlement Amount being paid in full as stated in Paragraph 5 above,
Pena shall execute and file a Request for Dismissal of its complaint in the Action with
prejudice.
7. Mutual and General Releases.
TA Except as to such rights or claims as may be created by this Settlement
Agreement, Pena on behalf of himself, his agents, shareholders, officers, directors, attorneys,
employees, representatives, and assigns, hereby releases, acquits, and forever discharges
Vivid and Comeau and their agents, shareholders, officers, directors, attorneys, employees,
representatives and assigns, and any person or entity acting by, through, under or in concert
with Vivid or Comeau, from any and all claims, demands, damages, debts, liabilities, actions,
causes of action, suits, contracts, controversies, agreements, accounts, reckonings, obligations,
and judgments, whether in law or in equity, of every kind and nature whatsoever, whether
matured or contingent, whether or not now known, suspected, or claimed which it has ever had,
now has, or claims to have, whether they arise out of or in any way relate to the alleged conduct
giving rise to the Action and/or the causes of action or claims asserted therein, or otherwise, from
the beginning of time through the Effective Date. In addition, Pena shall indemnify Vivid and
Comeau for any claims brought by his ex-wife Rachael Pena relating to the 25,000 shares of
Vivid capital stock issued to Pena and Rachael Pena back in 1990, which were subsequently
purchased back by Vivid.
7.2 Except as to such rights or claims as may be created by this Settlement
Agreement, Vivid and Comeau on behalf of themselves, their agents, shareholders, officers,
directors, attorneys, employees, representatives, and assigns, hereby releases, acquits, and
forever discharges Pena and his agents, shareholders, officers, directors, attorneys,
employees representatives and assigns, and any person or entity acting by, through, under or
in concert with Pena, from any and all claims, demands, damages, debts, liabilities, actions,
causes of action, suits, contracts, controversies, agreements, accounts, reckonings, obligations,
and judgments, whether in law or in equity, of every kind and nature whatsoever, whether
matured or contingent, whether or not now known, suspected, or claimed which it has ever had,
now has, or claims to have, whether they arise out of or in any way relate to the alleged conduct
giving rise to the Action and/or the causes of action or claims asserted therein, or otherwise, from
the beginning of time through the Effective Date.
713 The releases contained in this paragraph 7 include, without limitation, the
Telease of any and all claims arising by reasons of any matter or thing alleged or referred to,
or directly or indirectly or in any way connected with or arising out of or which may
hereafter be claimed to arise out of all or any of the matters, facts, events or occurrences
alleged in the Action and/or underlying or related to any such matters, facts, events or
occurrences,
8. Release of Unknown Claims.
8.1 With respect to the releases in paragraph 10 above (including paragraphs 10.1,
10.2 and 10.3), the Parties acknowledge they are familiar with the provisions of Section 1542
of the California Civil Code (“Section 1542”) as set forth below and expressly waive, give up
and relinquish any rights or benefits they have or may have under Section 1542, as well as
under any other state or federal statute or common law or principle of similar effect. Section
1542 states:
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.
8.2 The Parties acknowledge that this Agreement extends to, among other things, all
facts and claims relating to, and/or arising out of the Action, and any and all interactions
between Pena, Vivid and Comeau, or any of their respective agents and representatives, and
each of the Parties’ dealings as to each other and/or toward third parties, which the Parties do
not know or suspect to exist in their favor, which if known by them would have materially
affected their decision to enter into this Agreement. The Parties further acknowledge that they
may hereafter discover facts different from, or in addition to, those that they now know or
believe to be true with respect to the releases contained in this Agreement. The Parties
nevertheless acknowledge that this Agreement has been negotiated and agreed upon in light of
this realization and, being fully aware of the situation, hereby expressly agree that the releases
contained herein shall be given full force and effect even as to unknown and unsuspected
claims, demands, and causes of action.
8.3 The Parties acknowledge and agree that this waiver is an essential and material
term of this Agreement, and without such waiver, the parties would not enter into this
Agreement. Each of the parties warrants and represents that the advice of legal counsel has
been obtained by such party prior to signing this Agreement. Al! parties execute this
Agreement voluntarily, with full knowledge of its significance, and with the express
intention of waiving the legal protections provided by Section 1542 and any other similar
statute or rule of law of similar import whether enacted or in force in California or in any
other state or territory of the United States.
9. The Parties agree to keep the terms of this Settlement Agreement confidential,
except that its terms may be disclosed to the Parties’ legal and financial advisors, or if
required, disclosed pursuant to court order or as otherwise required by law. The Settlement
Agreement may also be disclosed, if necessary, to enforce its terms in a court of law.
10, Pena agrees not to, at any time in the future, in any way disparage Vivid or its
current and former officers, directors, managers and employees, verbally or in writing, or
make any statements to the press or to third parties that may be derogatory or detrimental to
Vivid’s name or business reputation. Pena further agrees that he will not induce, incite, or
assist in any way, claims of any type whatsoever against Vivid or Comeau. This paragraph
10 shall not apply to statements made truthfully in response to a subpoena or other legal
process.
11. Pena, Vivid and Comeau shall each bear their own attorneys’ fees and costs
incurred in connection with the Action, and the negotiation, drafting and execution of this
Settlement Agreement.
12. Pena, Vivid and Comeau represent and warrant that the person executing this
Settlement Agreement on its behalf has full authority todo so. Pena, Vivid and Comeau
represent that they have not relied upon any representations made by or on behalf of the
other, except those specifically set forth in this Settlement Agreement, in executing this
Settlement Agreement.
13. This Settlement Agreement constitutes the entire agreement between the Parties
with respect to the settlement of the Action, the release of claims as set forth in Paragraphs 7
(including paragraphs 7.1, 7.2 and 7.3) and 8 (including paragraphs 8.1, 8.2, and 8.3) above,
and the amount and timing of the payments to be made by Vivid, and supersedes all prior
agreements, both written and oral, between the Parties with respect to such matters, This
Settlement Agreement may not be modified except by a writing signed by the Parties.
14, This Settlement Agreement shall be governed by the laws of the State of
California.
15. The Parties agree that the presumption of interpretation against the drafting party
of this Settlement Agreement shall not apply. The Parties represent that they have executed
this Settlement Agreement after careful consultation with their respective counsel,
16. This Settlement Agreement may be executed in counterparts, each of which shall
be deemed an original, but all of which taken together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties have executed and delivered this Settlement
Agreement as of the date and year first above written.
IN WITNESS WHEREOF, the parties have duly executed this Separation and
Membership Interest Transfer Agreement, effective as of the Effective Date.
John Comeau:
fej
Walter Pena:
By\ Qrce Soto Se
loam Bible, Name; VP hee c x | as
Company:
VIV! ), INC,
—
By
John Comeau, President and CEO
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SETTLEMENT AGREEMENT AND RELEASE THIS SETTLEMENT AGREEMENT AND RELEASE (“Settlement Agreement”) is entered into this 7th day of September, 2018 (“Effective Date”) by and between Walter Pena, an Individual (“Pena”) on the one hand and Vivid, Inc., a California corporation (“Vivid”) and John Comeau, an Individual (“Comeau”) on the other hand. Pena, Vivid, and Comeau are sometimes referred to herein, collectively, as the “Parties,” and individually, as a “Party.” The Parties agree as follows: 1. A dispute has arisen between Pena, Vivid and Comeau arising out of and/or related to the management of Vivid. Pena alleges that he was entitled to shareholder distributions in 2010 and 2011 but Vivid failed to make these distributions. Vivid and Comeau dispute this allegation. 2. Pena is the plaintiff in the action entitled “Walter Pena v. Vivid, Inc. et al.,” Case No. 16-CV-304459, pending in the Superior Court of California, County of Santa Clara (the “Action”), in which Pena seeks to recover from Vivid and Comeau damages arising out of an alleged breach of contract and fiduciary duty, among other things. 3. Vivid and Comeau filed an Answer in the Action denying the allegations set forth in Pena’s complaint. 4. The Parties now desire to resolve the Action without further litigation. This Settlement Agreement constitutes the settlement and release of disputed claims, and shall not be construed as an admission of liability on the part of Vivid or Comeau. 5. Vivid agrees to timely pay the total settlement amount of seventeen thousand dollars ($17,000) (“Settlement Amount”) to Pena. Payment will be as follows: (1) $2,500.00 paid on December 15, 2018, (2) $2,500.00 no later than January 15, 2018, (3) $2,500.00 no later than February 15, 2018, and (4) $2,500.00 no later than March 15, 2019. and (5) $ 2,500 no later than April 15, 2019 (5) $ 2,500 no later than May 15, 2019 and (5) $ 2,000 no later than June 15, 2019 Within one (1) business day of the execution of this Settlement Agreement counsel of record for Pena shall provide in writing instructions as to how these payments should be made, including, for example, any wiring instructions or whether any check should be made jointly payable to counsel and Pena. In making these payments, Vivid has the right to rely on instructions from Pena’s counsel. 6. Upon receipt by Pena of a copy of this Settlement Agreement executed by Vivid and Comeau, Pena shall file a Notice of Conditional Settlement in the Action. Within five (5) business days of the Settlement Amount being paid in full as stated in Paragraph 5 above, Pena shall execute and file a Request for Dismissal of its complaint in the Action with prejudice. 7. Mutual and General Releases. TA Except as to such rights or claims as may be created by this Settlement Agreement, Pena on behalf of himself, his agents, shareholders, officers, directors, attorneys, employees, representatives, and assigns, hereby releases, acquits, and forever discharges Vivid and Comeau and their agents, shareholders, officers, directors, attorneys, employees, representatives and assigns, and any person or entity acting by, through, under or in concert with Vivid or Comeau, from any and all claims, demands, damages, debts, liabilities, actions, causes of action, suits, contracts, controversies, agreements, accounts, reckonings, obligations, and judgments, whether in law or in equity, of every kind and nature whatsoever, whether matured or contingent, whether or not now known, suspected, or claimed which it has ever had, now has, or claims to have, whether they arise out of or in any way relate to the alleged conduct giving rise to the Action and/or the causes of action or claims asserted therein, or otherwise, from the beginning of time through the Effective Date. In addition, Pena shall indemnify Vivid and Comeau for any claims brought by his ex-wife Rachael Pena relating to the 25,000 shares of Vivid capital stock issued to Pena and Rachael Pena back in 1990, which were subsequently purchased back by Vivid. 7.2 Except as to such rights or claims as may be created by this Settlement Agreement, Vivid and Comeau on behalf of themselves, their agents, shareholders, officers, directors, attorneys, employees, representatives, and assigns, hereby releases, acquits, and forever discharges Pena and his agents, shareholders, officers, directors, attorneys, employees representatives and assigns, and any person or entity acting by, through, under or in concert with Pena, from any and all claims, demands, damages, debts, liabilities, actions, causes of action, suits, contracts, controversies, agreements, accounts, reckonings, obligations, and judgments, whether in law or in equity, of every kind and nature whatsoever, whether matured or contingent, whether or not now known, suspected, or claimed which it has ever had, now has, or claims to have, whether they arise out of or in any way relate to the alleged conduct giving rise to the Action and/or the causes of action or claims asserted therein, or otherwise, from the beginning of time through the Effective Date. 713 The releases contained in this paragraph 7 include, without limitation, the Telease of any and all claims arising by reasons of any matter or thing alleged or referred to, or directly or indirectly or in any way connected with or arising out of or which may hereafter be claimed to arise out of all or any of the matters, facts, events or occurrences alleged in the Action and/or underlying or related to any such matters, facts, events or occurrences, 8. Release of Unknown Claims. 8.1 With respect to the releases in paragraph 10 above (including paragraphs 10.1, 10.2 and 10.3), the Parties acknowledge they are familiar with the provisions of Section 1542 of the California Civil Code (“Section 1542”) as set forth below and expressly waive, give up and relinquish any rights or benefits they have or may have under Section 1542, as well as under any other state or federal statute or common law or principle of similar effect. Section 1542 states: 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. 8.2 The Parties acknowledge that this Agreement extends to, among other things, all facts and claims relating to, and/or arising out of the Action, and any and all interactions between Pena, Vivid and Comeau, or any of their respective agents and representatives, and each of the Parties’ dealings as to each other and/or toward third parties, which the Parties do not know or suspect to exist in their favor, which if known by them would have materially affected their decision to enter into this Agreement. The Parties further acknowledge that they may hereafter discover facts different from, or in addition to, those that they now know or believe to be true with respect to the releases contained in this Agreement. The Parties nevertheless acknowledge that this Agreement has been negotiated and agreed upon in light of this realization and, being fully aware of the situation, hereby expressly agree that the releases contained herein shall be given full force and effect even as to unknown and unsuspected claims, demands, and causes of action. 8.3 The Parties acknowledge and agree that this waiver is an essential and material term of this Agreement, and without such waiver, the parties would not enter into this Agreement. Each of the parties warrants and represents that the advice of legal counsel has been obtained by such party prior to signing this Agreement. Al! parties execute this Agreement voluntarily, with full knowledge of its significance, and with the express intention of waiving the legal protections provided by Section 1542 and any other similar statute or rule of law of similar import whether enacted or in force in California or in any other state or territory of the United States. 9. The Parties agree to keep the terms of this Settlement Agreement confidential, except that its terms may be disclosed to the Parties’ legal and financial advisors, or if required, disclosed pursuant to court order or as otherwise required by law. The Settlement Agreement may also be disclosed, if necessary, to enforce its terms in a court of law. 10, Pena agrees not to, at any time in the future, in any way disparage Vivid or its current and former officers, directors, managers and employees, verbally or in writing, or make any statements to the press or to third parties that may be derogatory or detrimental to Vivid’s name or business reputation. Pena further agrees that he will not induce, incite, or assist in any way, claims of any type whatsoever against Vivid or Comeau. This paragraph 10 shall not apply to statements made truthfully in response to a subpoena or other legal process. 11. Pena, Vivid and Comeau shall each bear their own attorneys’ fees and costs incurred in connection with the Action, and the negotiation, drafting and execution of this Settlement Agreement. 12. Pena, Vivid and Comeau represent and warrant that the person executing this Settlement Agreement on its behalf has full authority todo so. Pena, Vivid and Comeau represent that they have not relied upon any representations made by or on behalf of the other, except those specifically set forth in this Settlement Agreement, in executing this Settlement Agreement. 13. This Settlement Agreement constitutes the entire agreement between the Parties with respect to the settlement of the Action, the release of claims as set forth in Paragraphs 7 (including paragraphs 7.1, 7.2 and 7.3) and 8 (including paragraphs 8.1, 8.2, and 8.3) above, and the amount and timing of the payments to be made by Vivid, and supersedes all prior agreements, both written and oral, between the Parties with respect to such matters, This Settlement Agreement may not be modified except by a writing signed by the Parties. 14, This Settlement Agreement shall be governed by the laws of the State of California. 15. The Parties agree that the presumption of interpretation against the drafting party of this Settlement Agreement shall not apply. The Parties represent that they have executed this Settlement Agreement after careful consultation with their respective counsel, 16. This Settlement Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties have executed and delivered this Settlement Agreement as of the date and year first above written. IN WITNESS WHEREOF, the parties have duly executed this Separation and Membership Interest Transfer Agreement, effective as of the Effective Date. John Comeau: fej Walter Pena: By\ Qrce Soto Se loam Bible, Name; VP hee c x | as Company: VIV! ), INC, — By John Comeau, President and CEO