EXHIBIT 10.23
SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE
This Settlement Agreement and Mutual General Release (hereafter
"Agreement") is entered into this 8th day of January 2003, between Geoworks
Corporation, a Delaware corporation, and Geoworks, Ltd., a United Kingdom
company (collectively hereafter "Company") and Xxxxxx X. Xxxxxx, an individual,
and DGE Capital Group, a California company (collectively hereafter "Xxxxxx").
RECITALS:
Company and Xxxxxx desire to fully and finally resolve any and all
complaints, claims, counterclaims, demands, rights or actions, pending
arbitration, pending litigation, and all differences between them arising out of
or in connection with prior agreements and Xxxxxx'x ownership of securities in
the Company, whether legal, equitable, contractual, statutory (foreign, federal,
state, or local) or otherwise.
AGREEMENT:
NOW THEREFORE, IN CONSIDERATION OF THE PREMISES AND MUTUAL PROMISES HEREIN
CONTAINED, THE PARTIES AGREE AS FOLLOWS:
1. Common Stock, Promissory Note & Pending Arbitration. Xxxxxx holds 50,000
shares of Company common stock pursuant to a Restricted Stock Purchase
Agreement, Security Agreement, and Promissory Note dated August 10, 1999, and an
Agreement and Mutual General Release dated December 20, 2000, all of which are
collectively the subject of pending arbitration under American Arbitration
Association Case No. 74 117 000156, filed January 29, 2002 and will be
collectively referred to as the "Agreements" below. In consideration of this
Agreement, the parties agree to fully and finally settle, resolve and dismiss
all claims against each other in the pending arbitration and within five (5)
days of the parties' executing this Agreement do all of the following: (a)
Xxxxxx will dismiss all pending claims in the pending arbitration, consider
canceled, resolved and fulfilled any obligations of Company pending under the
Agreements , and deliver to Company the original certificate for the 50,000
shares and any other shares that Ezzellowns or controls and the sum of
$12,577.59; (b) Company will cancel and consider paid in full the Promissory
Note dated August 10, 1999, cancel and consider resolved and fulfilled any
obligations pending under the Agreements, and dismiss all pending claims in the
pending arbitration; and (c) Company and Xxxxxx will jointly prepare,
countersign and deliver to the American Arbitration Association an advisory
letter dismissing the pending arbitration.
2. Common Stock & Pending Federal Court Litigation. There is presently pending
in the United States District Court, Central District of Xxxxxxxxxx, Xxxx Xx. XX
00-0000 filed December 10, 2002, concerning Xxxxxx'x purchase and sale of 45,000
shares of Company common stock. In consideration of this Agreement, the parties
agree to fully and finally settle, resolve and dismiss all claims against each
other in the pending federal court litigation and within five (5) days of the
parties' executing this Agreement do all of
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the following: (a) Company shall file a Notice of Withdrawal of its pending
motions in Case No. CV 02-9367, (b) Xxxxxx shall file a Request for Dismissal
With Prejudice of Case No. CV 02-9367, and (c) each party shall deliver to the
other a file-endorsed copy of said documents via facsimile and United States
first class mail.
3. Fees, Costs & Expenses. The consideration in this Agreement is the entire
consideration between the parties for full and final resolution of the matters
herein. Each party shall be responsible for its own attorney's fees, costs, or
expenses incurred on all matters addressed herein, and neither party shall be
considered the prevailing party in the arbitration or litigation resolved by
this Agreement and Mutual General Release.
4. Further Documentation. Company and Xxxxxx agree to cooperate in the timely
performance of any additional mechanical or necessary tasks, or the timely
preparation, execution and delivery of any agreements, letters, or supplemental
documents reasonably requested by either in order to facilitate performance,
execution and completion of the terms, promises, covenants, and provisions of
this Agreement and Mutual General Release. Without limiting the foregoing,
Xxxxxx agrees never to acquire any securities or rights thereto in the Company
or its Released Parties, or chose in action against same, or to knowingly
acquire an interest in any person who does so.
5. Confidentiality. Company and Xxxxxx agree that the terms of this Agreement
will be held in strict confidence except to the extent that disclosures may be
required by judicial process or law, and except that Company and Xxxxxx may
disclose any information concerning this Agreement and Mutual General Release to
its/their attorneys and tax or financial advisors. Moreover, either party may
state that "all matters, disputes, and pending arbitration and litigation was
resolved to the satisfaction of both parties" without violating this Section 5.
Furthermore, in light of Xxxxxx'x prior legal representation of the Company,
Xxxxxx confirms that Xxxxxx will not represent any third party in any claim or
defense against the Company and its Released Parties, nor cooperate or assist in
such claim, regardless of the nature or timing of such claim.
6. Mutual Release. In consideration of this Agreement and Mutual General
Release, Company and Xxxxxx and its/their representatives, heirs, successors and
assigns do hereby irrevocably and unconditionally release and forever discharge
each other and each and all of their affiliates, and their present and former
shareholders, officers, directors, agents executives, attorneys, successors and
assigns (including Teleca Ltd. and its affiliates, shareholders, officers and
directors) (collectively, "Released Parties") from all claims, rights, demands,
actions, obligations and causes of action of every kind and character, known and
unknown, mature or unmatured, which Company and Xxxxxx may now have or has ever
had related to or concerning any prior agreement between the parties as well as
Xxxxxx'x ownership of Company securities whether based on tort, contract
(express or implied), or any foreign, federal, state, or local law, statute or
regulation (collectively, "Released Claims"). The Released Claims do not include
claims for a breach of this Agreement.
7. Section 1542 Waiver. The parties understand and agree that Released Claims
include not only claims presently known to them, but also include all unknown or
unanticipated claims, rights, demands, actions, obligations, liabilities and
causes of action of every kind and character that would otherwise come within
the scope of Released
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Claims as described in paragraph 6. The parties further understand that they may
hereafter discover facts different from what they now believe to be true, which
if known, could have materially affected this Agreement, but they nevertheless
waive any claims or rights based on different or additional facts. The parties
knowingly and voluntarily waive any and all rights or benefits that they may now
have, or in the future may have, under the terms of Section 1542 of the
California Civil Code, which provides as follows:
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.
8. No Admission. The parties understand and agree that this Agreement and Mutual
General Release is a compromise settlement of disputed claims and that the
furnishing of the consideration for this Agreement and Mutual General Release
shall not be deemed or construed at any time or for any purpose as an admission
or concession by Company or Xxxxxx of any liability or wrongful act by either.
The liability for any and all claims or wrongful acts is expressly disclaimed
and denied by both parties. Rather, the parties have entered this Agreement to
resolve all differences between them, to secure peace, and to avoid involvement
in protracted litigation based upon disputed claims that are raised or could be
raised by either party in arbitration, litigation, or otherwise. This Agreement
and Mutual General Release does not constitute an admission or concession by
either party of any liability on account of such claims.
9. Disputes Over This Agreement. In any action or proceeding between or among
the parties hereto at law or in equity with respect to, pertaining to, or
arising from this Settlement Agreement and Mutual General Release, whether for
enforcement, or for damages by reason of any alleged breach, or for a
declaration of rights or obligation, or otherwise, whether or not such action or
proceeding is compromised or is prosecuted to final judicial determination
(collectively "Dispute Proceedings"), the unsuccessful party to the Dispute
Proceedings shall pay to the prevailing party, in additional to any other relief
that may be granted, all costs and expenses of the Dispute Proceeding, including
without limitation, the prevailing party's reasonable actual attorneys' fees and
expenses. Late payments bear interest at the rate of one percent per month.
10. Notices. Any notice under this Agreement must be in writing and shall be
effective upon delivery by hand, upon confirmed facsimile transmission, two (2)
days after deposit with a nationally recognized overnight courier service, or
three (3) business days after deposit in the United States mail, postage
prepaid, certified, or registered and addressed to Company or Xxxxxx at
its/their then current address.
11. Integration. This Agreement constitutes the entire, final and binding
understanding between the parties hereto; no other statement or representation,
written or oral, express or implied, has been received or relied upon, and all
prior or contemporaneous discussions, statements, and negotiations relating to
the subject matter hereof are superseded, merged into, and expressed in this
Agreement.
12. Amendments; Waivers. This Agreement may not be amended except by an
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instrument in writing signed by each of the parties, and any waiver of any
provision of this Agreement must be in writing signed by the waiving party.
13. Assignments: Successors and Assigns. Both parties agree that each will not
assign, sell, transfer, delegate or otherwise dispose of, whether voluntarily or
involuntarily, or by operation of law, any rights or obligations under this
Agreement, except in connection with a merger, consolidation or sale of
substantially all of a party's assets. Any such purported assignment, transfer
or delegation shall be null and void. Each party represents that neither has
previously assigned or transferred any claims or rights released by or pursuant
to this Agreement.
14. Severability. If any provision of this Agreement, or its application to any
person, place or circumstance, is held by an arbitrator or a court of competent
jurisdiction to be invalid, unenforceable or void, such provision shall be
enforced to the greatest extent permitted by law, and the remainder of this
Agreement and such provision as applied to other persons, places and
circumstances shall remain in full force and effect.
15. Governing Law. This Agreement shall be governed, construed, and interpreted
in accordance with the laws of the State of California.
16. Representation by Counsel. The parties acknowledge that (i) they have had
the opportunity to consult counsel in regard to this Agreement; (ii) they have
read and understand the Agreement and they are fully aware of its legal effect;
and (iii) they are entering into this Agreement freely and voluntarily, and
based on each party's own judgment and not on any representations or promises
made by the other party, other than those contained in this Agreement. This
Agreement was drafted by both parties, and shall not be interpreted or construed
for or against either party.
The effective date of this Agreement is January 8, 2003.
GEOWORKS CORPORATION: XXXXXX X. XXXXXX:
By: ______________________ By: ____________________
GEOWORKS LTD.: DGE CAPITAL GROUP:
By: ______________________ By: ____________________
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