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Exhibit 10.15
SETTLEMENT AND GENERAL RELEASE
THIS SETTLEMENT AND GENERAL RELEASE (the "Agreement") is made
and entered into as of the 30th day of January, 1997 by and between Xxxxxx X.
Xxxxxx ("Xxxxxx" or the "Employee"), Allegro New Media, Inc., a Delaware
corporation ("Allegro" or the "Company"), and Software Publishing Corporation, a
Delaware corporation ("SPC") (collectively, the "Parties"). The Parties
acknowledge that the terms and conditions of this Agreement have been
voluntarily agreed to and that such terms are final and binding.
WHEREAS, Xxxxxx has been employed by Allegro and SPC as Chief
Financial Officer and has been a member of Allegro's Board of Directors; and
WHEREAS, Allegro and SPC accept Xxxxxx'x resignation as an
employee and officer and Allegro accepts Xxxxxx'x resignation from Allegro's
Board of Directors; and
WHEREAS, the Parties now desire to settle fully and finally
all claims Xxxxxx may have against Allegro and that Allegro may have against
Xxxxxx and others released herein, including, but not limited to, any matters
arising out of Xxxxxx'x employment with Allegro and her separation therefrom;
NOW, THEREFORE, in consideration of the premises and mutual
promises herein contained, it is agreed as follows:
1. Non-Admission of Liability or Wrongdoing.
This Agreement shall not be construed in any way as an
admission by Allegro or Xxxxxx that either has acted wrongfully with respect to
each other or any other person or that either has any rights whatsoever against
the other.
2. Resignation.
Xxxxxx hereby resigns as a director, officer and employee of
Allegro and as an officer and employee of SPC. Xxxxxx agrees to assist the
Company and SPC in such manner as the Company and SPC may reasonably request
with respect to matters in which she was involved during her employment by the
Company or SPC, during the period ending not earlier than June 1, 1997. Xxxxxx
agrees to return to the Company or SPC all assets, equipment or other items
which are owned by the Company or SPC not later than February 10, 1997.
3. Consideration to Xxxxxx.
(a) On the eighth day after the execution and delivery of this
Agreement: (i) Allegro shall pay to Xxxxxx an amount equal to ONE HUNDRED FORTY
THOUSAND DOLLARS and 00/100 ($140,000);
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(ii) Allegro shall pay to Xxxxxx an amount equal to
$13,462 in respect of accrued vacation; and
(iii) Allegro shall pay to Xxxxxx an amount equal to
$8,334 on each of February 6, March 1, April 1, and May 1, 1997.
(b) Subject to the terms of the Stock Option Plans pursuant to
which such stock options were granted, all incentive stock options granted to
Xxxxxx by Allegro or SPC shall be exercisable for a period of three (3) months
from and after the date hereof to the extent otherwise exercisable, and
thereafter shall terminate. Subject to the terms of the Stock Option Plans
pursuant to which such stock options were granted and applicable law, the
Company and SPC and Xxxxxx shall treat all incentive stock options granted to
Xxxxxx by Allegro or SPC as non-qualified options, and any such non-qualified
options shall be exerciseable for the period set forth in clause (c) below.
(c) Subject to the terms of the Stock Option Plans pursuant to
which such stock options were granted, all non-qualified stock options granted
to Xxxxxx by Allegro or SPC shall be exercisable for a period of six (6) months
from and after the date hereof to the extent otherwise exercisable, and
thereafter shall terminate.
4. Complete Release.
(a) As a material inducement to Allegro to enter into this
Agreement, Xxxxxx hereby waives, releases and discharges Allegro and SPC, their
respective officers, directors, stockholders, employees, agents, attorneys,
subsidiaries, servants, successors, insurers, affiliates and their successors
and assigns, from any and all manner of action, claims, liens, demands,
liabilities, causes of action, charges, complaints, suits (judicial,
administrative, or otherwise), damages, debts, demands, obligations of any other
nature, past or present, known or unknown, whether in law or in equity, whether
founded upon contract (expressed or implied), tort (including, but not limited
to, defamation), statute or regulation (State, Federal or local), common law
and/or any other theory or basis, from the beginning of the world to the date
hereof, including, but not limited to, any claim that Xxxxxx has asserted, now
asserts or could have asserted. This includes, but is not limited to, claims
arising under Federal, State or local laws prohibiting employment or other
discrimination or claims growing out of any legal restrictions on the Company's
rights to terminate its employees, including without limitation any claim
arising under Title VII of the United States Code. It is expressly understood by
Xxxxxx that among the various rights and claims being waived by her in this
release are those arising under the Age Discrimination in Employment Act of 1967
(29 U.S.C. Section 621, et seq.) and any and all rights Xxxxxx may have pursuant
to the Employment Agreement dated October 1, 1996 between Xxxxxx and Allegro and
pursuant to the Management Continuity Agreement dated February 18, 1994 between
Xxxxxx and SPC.
(b) As a material inducement to Xxxxxx to enter into this
Agreement, each of Allegro and SPC hereby irrevocably and unconditionally waive,
release and discharge Xxxxxx, her agents and attorneys, successors and assigns
from any and all manner of action, claims, liens, demands, liabilities, causes
of action, charges, complaints, suits (judicial, administrative or otherwise),
damages, debts, demands, obligations of any other nature, past or present, known
or unknown, whether in law or in
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equity, whether founded upon contract (expressed or implied, tort (including,
but not limited to, defamation), statute or regulation (State, Federal or
local), common law and/or any other theory or basis, from the beginning of the
world to the date hereof arising out of her employment and resignation therefrom
or the termination thereof, including, but not limited to, any claim that
Allegro or SPC has asserted, now asserts or could have asserted, so long as such
action, claims, liens, demands, liabilities, causes of action, charges,
complaints, suits (judicial, administrative or otherwise), damages, debts,
demands or obligations of any other nature do not arise out of or relate to any
willful misconduct, negligence or fraud committed by Xxxxxx.
(c) It is understood and agreed by all parties hereto that the
facts and respective assumptions of law in contemplation of which this Agreement
is made may hereafter prove to be other than or different from those facts and
assumptions now known, made or believed by them to be true. Each of the parties
hereto expressly accepts and assumes the risk of the facts and assumptions to be
so different, and the parties hereto agree that all terms of this agreement
shall be in all respects effective and not subject to termination or reclusion
by any such difference in facts or assumptions of law.
5. Acknowledgments.
Xxxxxx acknowledges that:
(a) She has had a full twenty-one (21) days within which to
consider this Agreement before executing it;
(b) She has carefully read and fully understands all of the
provisions of this Agreement;
(c) She is, through this Agreement, releasing the Company, SPC
and their affiliates from any and all claims she may have against any of them;
(d) She knowingly and voluntarily agrees to all of the terms
set forth in this Agreement;
(e) She knowingly and voluntarily intends to be legally bound
by the same;
(f) She was advised and hereby is advised in writing to
consider the terms of this Agreement and consult with an attorney of her choice
prior to executing this Agreement;
(g) She has a full seven (7) days following the execution of
this Agreement to revoke this Agreement and has been and hereby is advised in
writing that this Agreement shall not become effective or enforceable until the
revocation period has expired;
(h) She understands that rights or claims under the Age
Discrimination in Employment Act of 1967 (29 U.S.C. Section 621 et seq.) that
may arise after the date of this Agreement is executed are not waived.
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6. Non-Disclosure.
Xxxxxx shall not disclose or deliver to any other party
certain trade secrets or confidential or proprietary information gained through
employment with Allegro or SPC. This includes, but is not limited to,
proprietary technologies, software programs and tools, financial information,
business plans, systems files, algorithms, file structures, customer lists,
supplier lists, internal program structures, options, documentation and data
developed by Allegro or SPC or any subsidiary or division thereof. Xxxxxx agrees
that any breach of this Section 6 will cause Allegro and SPC substantial and
irreparable damages that would not be quantifiable and therefore, in the event
of any such breach, in addition to other remedies that may be available, Allegro
and SPC and Xxxxxx shall have the right to seek specific performance and other
injunctive and equitable relief.
7. Non-Disparagement.
Allegro and Xxxxxx mutually agree not to publish, communicate
or disseminate any negative information as regards each other, or to make public
any information regarding this Agreement to the media, suppliers, vendors and
other industry participants, or in any way to any other person, except that they
may disclose its contents to their respective financial advisors, accountants
and attorneys and as required by law.
8. No Representations.
The Parties represent that in signing this Agreement, they do
not rely on nor have they relied on any representation or statement not
specifically set forth in this Agreement by any of the releasees or by any of
the releasees' agents, representatives or attorneys with regard to the subject
matter, basis or effect of this Agreement or otherwise.
9. Successors.
This Agreement shall be binding upon and inure to the benefit
of Allegro, SPC and Xxxxxx and their respective administrators, representatives,
executors, successors and assigns.
10. Governing Law.
This agreement is made and entered into in this State of
California, and shall in all respects be interpreted, enforced and governed
under the laws of the State of California.
11. Arbitration.
(a) Any dispute arising between the Parties, including but not
limited to those pertaining to the formation, validity, interpretation, effect
or alleged breach of this Agreement ("Arbitrable Dispute") will be submitted to
arbitration in San Jose, California, before an experienced employment arbitrator
and selected in accordance with the rules of the American Arbitration
Association labor tribunal. Each party shall pay the fees of their respective
attorneys, the expenses of their witnesses
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and any other expenses connected with presenting their claim. Other costs of the
arbitration, including the fees of the arbitrator, cost of any record or
transcript of the arbitration, administrative fees, and other fees and costs
shall be borne equally by the parties.
(b) Should either party to this Agreement hereafter institute
any legal action or administrative proceedings against the other with respect to
any claim waived by this Agreement or pursue any other Arbitrable Dispute by any
method other than said arbitration, the responding party shall be entitled to
recover from the initiating party all damages, costs, expenses and attorneys'
fees incurred as a result of such action.
12. Proper Construction.
(a) The language of all parts of this Agreement shall in all
cases be construed as a whole according to its fair meaning, and not strictly
for or against any of the parties;
(b) As used in this Agreement, the term "or" shall be deemed
to include the term "and/or" and the singular or plural number shall be deemed
to include the other whenever the context so indicates or requires;
(c) The paragraph headings used in this Agreement are intended
solely for convenience of reference and shall not in any manner amplify, limit,
modify or otherwise be used in the interpretation of any of the provisions
hereof.
13. Severability.
Should any of the provisions of this Agreement be declared or
be determined to be illegal or invalid, the validity of the remaining parts,
terms or provisions shall not be affected thereby and said illegal or invalid
part, term or provision shall be deemed not be a part of this Agreement.
14. Entire Agreement.
This Agreement sets forth the entire agreement between the
parties hereto, and fully supersedes any and all prior agreements or
understandings between the parties hereto pertaining to the subject matter
hereof. All other contracts, agreements or understandings between Xxxxxx and
Allegro and SPC are null and void.
15. Counterparts.
This Agreement may be executed in counterparts. Each
counterpart shall be deemed an original, and when taken together with the other
signed counterpart, shall constitute one fully executed Agreement.
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PLEASE READ CAREFULLY. THIS SETTLEMENT AND GENERAL RELEASE
INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
Dated: San Jose, California Dated: San Jose, California
January 30, 1997 January 30, 1997
ALLEGRO NEW MEDIA, INC.
By: /s/ Xxxxx X. Cinnamon /s/ Xxxxxx Xxxxxx
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Name: Xxxxx X. Cinnamon Xxxxxx Xxxxxx
Title: Chief Executive Officer
SOFTWARE PUBLISHING CORPORATION
By: /s/ Xxxxx X. Cinnamon
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Name: Xxxxx X. Cinnamon
Title: Chief Executive Officer
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