AGREEMENT OF SETTLEMENT AND RELEASE

         For and in  consideration  of the mutual promises,  covenants,  and releases set forth herein,  and other good, valuable and sufficient consideration,  the Parties hereto agree as follows:

a.  Release By GEM  Parties.  The GEM Parties signatory hereto for themselves, and for each of their predecessors,  successors, past and present  assigns, officers,  directors, and other agents, do hereby release and absolutely discharge, and indemnifies and covenants not to sue,  the CLW Parties from and against any and all claims, debts,  liabilities,  demands,  obligations, promises,  acts,  omissions, agreements, instruments, accounts,  accountings,  reckonings,  costs,  and expenses  (including,  but not limited to, attorneys' fees and costs),  damages, liens,  judgments,  actions  and  causes of  action,  of every  kind and  nature whatsoever,  at law or in equity,  known or unknown,  suspected or  unsuspected, which the GEM Parties ever had, or now has, or may hereafter have (whether arising out of existing or future acts or omissions by any of the CLW Parties) against the CLW  Parties,  which  arose, are arising or will hereafter arise out of,  or are in  connection  with,  the SPA, the Security Agreement, the Notes, the Amended Security Agreement and any ancillary agreements thereto with the exception of the GEM Parties' rights and obligations under this Agreement, and with the further exception of the Employment Agreement between GEM and DBE, which Employment Agreement is terminated pursuant to a separate Release Agreement of eve n date between GEM and DBE.

              b.  Release  By  CLW Parties. The CLW Parties signatory hereto for themselves, and for each of their predecessors,  successors, past and present  assigns, officers,  directors, and other agents, do hereby release and absolutely discharge, and indemnifies and covenants not to sue,  the CLW Parties from and against any and all claims, debts,  liabilities,  demands,  obligations, promises,  acts,  omissions, agreements, instruments, accounts,  accountings,  reckonings,  costs,  and expenses  (including, &# 160;but not limited to, attorneys' fees and costs),  damages, liens,  judgments,  actions  and  causes of  action,  of every  kind and  nature whatsoever,  at law or in equity,  known or unknown,  suspected or  unsuspected, that the CLW Parties ever had, or now has, or may hereafter have (whether arising out of existing or future acts or omissions by any of the GEM Parties) against the GEM  Parties,  which  arose, are arising or will hereafter arise out of,  or are in  connection  with,  the SPA, the Security Agreement, the Notes, the Amended Security Agreement and any ancillary agreements thereto with the exception of the CLW Parties' rights and obligations under this Agreement, and with the further exception of the Employment Agreement between GEM and DBE, which Employment Agreement is terminated pursuant to a separate Release Agreement of even date between GEM and DBE.

              e. The terms of this Agreement are contractual and are the result of negotiation among the Parties.  Each Party has cooperated in the drafting and preparation of this Agreement. This Agreement is the final written expression and the complete and exclusive statement of all of the agreements, conditions, promises, representations and covenants between the Parties with respect to the subject matter of this  Agreement. This Agreement replaces and supersedes all prior, former or  contemporaneous  agreements,  negotiations,  understandings, representations, discussions or warranties between and among the Parties, their respective representatives, and any other person or entity, with respect to the subject matter of this Agreement. In any construction to be  made of this Agreement, the same s hall not be construed against any Party, and the canon of contractual interpretation set forth in California Civil Code Section 1654 shall not be applied.

 

 

         7. Governing Law and Arbitration. This Agreement shall be construed in accordance with, and be governed by, the laws of the State of California.  Arbitration of Disputes

(a) Arbitrable Disputes:  The Parties agree to resolve any claims we may have with each other (except, if any Party  so elects, any dispute for which injunctive relief is a principal remedy) through final and binding arbitration in accordance with this section.

 

(b) The Arbitration:  The arbitration shall be in accordance with the then-current arbitration rules and procedures governing arbitrations administered by the Judicial Arbitration and Mediation Service (JAMS), except as provided in this section.  The arbitrator shall determine his or her decision ex aequo et bono with reference to this Agreement and the broad intended scope hereof. Arbitration shall take place in Los Angeles County before an experienced business arbitrator licensed to practice law in that California.  The arbitrator m ay not modify or change this Release in any way.  The Parties and any other party who agrees to arbitrate an Arbitrable Dispute under this section agree to submit to personal jurisdiction in California and in any jurisdiction necessary for the enforcement of any arbitration award.

(c) Selection of the Arbitrator:  The arbitrator shall be selected as follows:  JAMS shall give each Party a list of 11 arbitrators drawn from its panel of employment dispute arbitrators.  Each Party may strike all names on the list it deems unacceptable.  If only one common name remains on the lists of both parties, that individual shall be designated as the Arbitrator.  If more than one common name remains on the lists of both parties, the Parties shall strike names alternately from the list of common names until only one remains.  The Party who did not initi ate the claim shall strike first.  If no common name exists on the lists of both parties, JAMS shall furnish an additional list and the process shall be repeated.  If no arbitrator has been selected after two lists have been distributed, then the Parties shall strike alternately from a third list, with the party initiating the claim striking first, until only one name remains.  That person shall be designated as the arbitrator.  Striking decisions must be made and communicated to the other Party and JAMS within 10 calendar days after the date of the transmittal communication relaying the arbitrators remaining for selection.  In the event a Party does not make a timely strike, the other party may select the arbitrator from the names remaining.

 

(d) Attorneys Fees and Expenses:  Each Party shall pay the fees of his or her attorneys, the expenses of his or her witnesses, and any other expenses that party incurs in connection with the arbitration, but all costs of the arbitration itself, including the fees of the arbitrator, the cost of any record or transcript of the arbitration, administrative fees, and other fees and costs shall be paid in equal shares by the plaintiffs and defendants.  At my written request and on a showing of substantial hardship, the Company shall advance all or a portion of my share of those arbitration costs to the ext ent they would exceed the out-of-pocket costs I would have incurred in a lawsuit.  The party losing the arbitration shall reimburse the party who prevailed for all attorneys’ fees and expenses the prevailing party paid pursuant to this subsection (d), except to the extent prohibited by a statute under which the dispute has been brought.

         8. Warranty of Authority.  Each Party whose signature is affixed hereto in a representative capacity  represents and warrants that he or she is authorized to execute this Agreement on behalf of and to bind the entity on whose behalf his or her signature is affixed. In the event that there is a breach of any representation or warranty of authority to execute this Agreement, the Parties shall indemnify and hold harmless one another from any and all loss or damage, including  reasonable  attorneys'  fees,  incurred  as result of the breach of such representation and warranty.