EXHIBIT 10.24
SETTLEMENT AGREEMENT
AMONG
CONSILIUM, INC., CONSILIUM TAIWAN, INC., SYSTEMATIC
DESIGNS INTERNATIONAL, INC. AND JEN-SHIH XXXXX XXXX
This Settlement Agreement ("Agreement") is entered into effective as of January
30, 1998 by and among Consilium, Inc., a Delaware corporation ("Consilium"),
Consilium Taiwan, Inc., a Delaware corporation and a wholly owned subsidiary of
Consilium ("Buyer"), Systematic Designs International, Inc., a Washington
corporation ("Seller"), and Jen-Shih Xxxxx Xxxx, a principal shareholder of
Seller ("Shareholder") (collectively, the "Parties").
RECITALS
WHEREAS, the Parties entered into as Asset Purchase Agreement dated July 2, 1996
whereby Seller and Shareholder sold, as a going concern, the customer and
personnel relationships, customer contracts, and operations of Seller in Taiwan
and certain related assets of Seller to Buyer on the terms and subject to the
conditions set forth therein (the "Asset Purchase Agreement").
WHEREAS, the Asset Purchase Agreement expressly provides for its amendment or
termination by an instrument in writing executed and delivered on behalf of each
of the Parties.
WHEREAS, the Parties desire, except as otherwise provided in this Agreement, to
terminate and cancel any and all continuing or executory obligations arising
from the Asset Purchase Agreement, and to settle and release any claims that any
Party or Parties may have against any other Party or Parties arising from a
breach of the Assets Purchase Agreement.
WHEREAS, concurrent with this Agreement, Seller and Consilium are entering into
an Amended and Restated Software Licensing Agreement to supersede the Software
Licensing Agreement attached as an Exhibit to the Asset Purchase Agreement.
AGREEMENT
NOW, THEREFORE, the Parties agree as follows:
1. CANCELLATION OF CONTINUING OBLIGATIONS ARISING FROM THE ASSET
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PURCHASE AGREEMENT.
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Any and all continuing or executory obligations arising from the Asset
Purchase Agreement, including any obligation arising from or connected with the
Asset Purchase Agreement or the relationship created thereby of Buyer and/or
Consilium to make payments or provide any consideration whatsoever to Seller
and/or Shareholder, are forever and in their entirety hereby canceled,
terminated and rendered null and void (the "Cancellation"). By way of
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clarification, all conveyances, payments, and other acts previously performed by
any Party are unaffected by this Agreement
2. BUYER'S NEW PAYMENT OBLIGATIONS.
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In consideration for the Cancellation contained in Section 1 above,
Consilium agrees to issue, within thirty (30) days of the date hereof, One
Hundred Thousand (100,000) shares of its Common Stock to Seller (the "Stock
Consideration"). In connection with the issuance of the Stock Consideration to
Seller, Seller hereby repeats and reaffirms the acknowledgements and
representations contained in Section 3.23 of the Asset Purchase Agreement and
Buyer hereby repeats and reaffirms the acknowledgments and representations
contained in Section 4.6 of the Asset Purchase Agreement, as though the said
Sections 3.23 and 4.6 were set out in full herein.
3. RELEASE OF CLAIMS.
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By signing below, each Party, on behalf of itself (or himself) and its
(or his) successors and assigns and heirs fully releases and discharges every
other Party and all past or present agents, officers, directors, employees,
shareholders, attorneys, successors, assigns and insurers of any Party
(collectively "Related Persons"), and each of them, from all actions, causes of
action, claims, judgments, obligations, damages, and liabilities arising from
the Asset Purchase Agreement. Each Party represents and warrants that it (or he)
has not assigned any such claim or authorized any other person or entity to
assert any such claim on its (or his) behalf.
The Parties each understand and expressly agree that, except as
otherwise provided in this Agreement, this release extends to all claims of
every nature and kind whatsoever, known or unknown, suspected or unsuspected,
past or present, which exist now or existed before the execution of this
release, arising from the Asset Purchase Agreement. Further, each Party
covenants that it or he will not xxx or otherwise prosecute, or participate in
the prosecution of any suit against, any other Party or any Related Persons with
respect to any claim included within this release of claims. Each Party
acknowledges that it (or he) is familiar with the provisions of California Civil
Code Section 1542, which reads as set forth immediately below, and it (or he)
hereby waives all of its (or his) rights thereunder:
"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."
4. OPPORTUNITY TO CONSULT WITH COUNSEL.
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Each Party expressly acknowledge that it (or he) has had a sufficient
opportunity to consult with and receive the advice of an attorney concerning all
portions of this Agreement. Therefore, each Party acknowledges that it (or he)
has freely and voluntarily executed this Agreement.
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5. INDEMNITY.
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Each Party (the "Indemnifying Party") agrees to jointly and severally
indemnify and hold each other Party harmless from and against any losses,
damages, costs or expenses, including court costs and attorneys' fees, incurred
by such other Party as a result of any breach by that Indemnifying Party of any
representation, covenant or warranty contained in this Agreement.
6. NON-SOLICITATION OF EMPLOYEES.
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Each Party agrees that for a period of one year following the
effective date of this agreement, none of the Parties will, directly or
indirectly, solicit any employee of the other Parties to terminate his or her
employment with the other Parties. Each Party agrees not to disparage any of the
other Parties, their products, their employees, or their services.
7. AUTHORIZATION.
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Seller hereby represents and warrants that: it has the requisite
corporate power and authority to enter into this Agreement and to perform its
obligations hereunder, the execution and delivery of this Agreement by Seller,
the performance by Seller of its obligations hereunder and the consummation by
Seller of the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action on the part of Seller; no other
corporate proceeding on the part of Seller is necessary to authorize this
Agreement or the performance of Seller's obligations hereunder or the
consummation of the transactions contemplated hereby. Seller hereby and
Shareholder, and each of them, hereby represent and warrant that this Agreement
has been duly executed and delivered by Seller and the Shareholder and
constitutes the valid and binding obligation of each of Seller and the
Shareholder, enforceable in accordance with its terms, subject to laws of
general application relating to bankruptcy, insolvency and the relief of debtors
and rules of law governing specific performance, injunctive relief or other
equitable remedies. The Shareholder represents and warrants that he has full
power, authority and capacity to enter into this Agreement and to perform his
obligations hereunder.
8. WAIVER.
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Any Party may waive or modify any of the conditions precedent to its
(or his) obligations hereunder. No such waiver, and no modification, amendment,
discharge or change of this Agreement shall be valid unless same is in writing
and signed by the Party against which enforcement of such amendment or
modification is sought.
9. ENTIRE AGREEMENT.
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This Agreement contains the entire Agreement between the Parties
relating to the transactions contemplated hereby. No representations,
warranties, or promises pertaining to this Agreement have been made by, or shall
be binding on, any of the Parties, except as expressly stated in this Agreement
or the Amended and Restated Software Licensing Agreement executed concurrently
with this Agreement.
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10. NO ASSIGNMENT.
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No Party to this Agreement may assign any of its rights granted
herein, and any assignment, transfer of sale, directly or indirectly by a party
hereto shall automatically terminate all rights granted herein to such party.
11. ADDITIONAL ACTS.
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Each party hereto shall from time to time execute, acknowledge and
deliver such further instruments and perform such additional acts as the other
party may reasonably request to effectuate the intent of this Agreement.
12. HEADINGS.
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The section headings of this Agreement are for convenience of
reference only and shall not constitute a part of the text hereto nor alter or
otherwise affect the meaning hereof.
13. GOVERNING LAW.
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This Agreement shall be construed and enforced in accordance with and
governed by the laws of the State of California, without regard to conflict of
laws principles.
14. ALTERNATIVE DISPUTE RESOLUTION.
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The parties will attempt to settle any claim or controversy arising
out of this Agreement through consultation and negotiation in good faith and in
a spirit of mutual cooperation. If those attempts fail, then such dispute will
be mediated by either the Judicial Arbitration and Mediation Service in San
Francisco, California or a mediator mutually acceptable to the parties. By
mutual agreement, however, the parties may postpone mediation until they have
each completed some specified but limited discovery regarding the dispute. The
parties may also mutually agree to replace mediation with some other form of
alternative dispute resolution ("ADR"), such as neutral fact-finding or a mini-
trial. Any dispute which the parties cannot resolve through negotiation,
mediation, or another form of ADR within sixty (60) days of the date of the
initial demand for negotiation, mediation, or ADR by one of the parties shall be
submitted to binding arbitration, in accordance with Section 13 below.
15. ARBITRATION.
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Any claim, dispute, or controversy arising out of or in
connection with or relating to this Agreement or the breach or alleged breach
thereof will be submitted by the parties to arbitration by the American
Arbitration Association (the "Association") in the City of Xxx Xxxx, Xxxxx xx
Xxxxxxxxxx, Xxxxxx Xxxxx xx Xxxxxxx under the commercial rules then in effect
for that Association, except as provided herein. Each party will choose one
arbitrator within thirty (30) days of receipt of the notice of intent to
arbitrate. Within sixty (60) days of receipt of the notice of intent to
arbitrate, the two abitrators will choose a neutral third arbitrator who will
act as chairman. If no arbitrator is appointed within the times herein provided,
or any extension of time which is mutually agreed upon, the Association will
make such appointment within thirty (30) days of such failure. The parties will
be entitled to discovery as provided in Sections 1283.05 and 12831.1 of the Code
of Civil Procedure of the State of California or any successor provision,
whether or not the California Arbitration Act is deemed to apply to the
arbitration. The award rendered by the arbitrators will include costs of
arbitration, reasonable attorneys' fees, and
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reasonable costs for expert and other witnesses, and judgment on such award may
be entered in any court having jurisdiction thereof.
16. COUNTERPARTS.
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This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument.
IN WITNESS HEREOF, the parties hereto have duly executed this Agreement, as
of the day and year first above written.
"SELLER" "CONSILIUM"
SYSTEMATIC DESIGNS CONSILIUM, INC.
INTERNATIONAL, INC.
By: /s/ Jen-Shih Xxxxx Xxxx By: /s/ Xxxxxxx Xxxx
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Name: Jen-Shih Niou Name: Xxxxxxx Xxxx
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Title: President Title: VP, Finance & CFO
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"SHAREHOLDER" "BUYER"
JEN-SHIH XXXXX XXXX CONSILIUM TAIWAN, INC.
/s/ Jen-Shih Xxxxx Xxxx By: /s/ Xxxxxxx Xxxx
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Name: Xxxxxxx Xxxx
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Title: VP, Finance & CFO
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