SETTLEMENT AND GENERAL RELEASE AGREEMENT
THIS SETTLEMENT AND GENERAL RELEASE AGREEMENT (the "Agreement") is made and
entered into as of the 26th day of September, 1997 by and between Xxxxxx X.
Xxxxxxxxxxx ("Xxxxxxxxxxx" or the "Employee"), Software Publishing Corporation
Holdings, Inc.(formerly known as Allegro New Media, Inc.), a Delaware
corporation ("SPCH"), 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, Xxxxxxxxxxx has been employed by SPCH and SPC as Vice President
Sales & Marketing; and
WHEREAS, SPCH and SPC accept Xxxxxxxxxxx'x resignation as an employee and
officer; and
WHEREAS, the Parties now desire to settle fully and finally all claims
Xxxxxxxxxxx may have against SPCH or SPC and that SPCH or SPC may have against
Xxxxxxxxxxx and others released herein, including, but not limited to, any
matters arising out of Xxxxxxxxxxx'x employment with SPCH and SPC and his
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 the
Parties that any of them have acted wrongfully with respect to each other or any
other person or that any one of them has any rights whatsoever against the
other.
2. Resignation.
Xxxxxxxxxxx hereby resigns as an officer and employee of SPCH and SPC.
Xxxxxxxxxxx agrees to return to SPCH or SPC all assets, equipment or other items
which are owned by SPCH or SPC not later than one (1) month after the date of
this Agreement.
3. Consideration to Xxxxxxxxxxx.
(a) On the eighth day after the execution and delivery of this Agreement:
(i) SPCH shall pay to Xxxxxxxxxxx a net amount equal to FIFTY
THOUSAND DOLLARS $50,000.
(ii) SPCH shall pay to Xxxxxxxxxxx an amount equal to $7,377.32
in respect of accrued vacation.
(iii) SPCH shall continue to make all payments in respect of
health insurance for Xxxxxxxxxxx'x benefit consistent
with past practice for a period of 3 months after the
date of this Agreement.
(iv) SPCH shall pay to Xxxxxxxxxxx an amount equal to FORTY
THOUSAND DOLLARS $40,000 upon the completion of a contract
between SPCH or SPC with Microsoft Corporation pursuant to
which Microsoft Corporation purchases either Harvard
Graphics or any portion of the Intelligent Formatting
technology, if that agreement is made within 12 months of
this agreement.
(v) Xxxxxxxxxxx shall return to the Company all Company property
that is in his possession.
(b) SPCH will extend the stock option rights granted to him on his
currently vested options (67,012 options) to be exercisable at the strike price
of $1.25 for a period of six (6) months from the date of this agreement.
Thereafter, such options shall terminate.
4. Complete Release.
(a) As a material inducement to SPCH and SPC to enter into this Agreement,
Xxxxxxxxxxx hereby waives, releases and discharges SPCH 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 Xxxxxxxxxxx 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
Xxxxxxxxxxx that among the various rights and claims being waived by him in this
release are those arising under the Age Discrimination in Employment Act of 1967
(29 U.S.C. 621, et seq.) and any and all rights Xxxxxxxxxxx may have pursuant to
the Employment Agreement dated May 20, 1996 between Xxxxxxxxxxx and SPCH, as
amended, and pursuant to the Management Continuity Agreement dated October 1,
1996 between Xxxxxxxxxxx and SPC, as amended. Notwithstanding anything else
contained in this agreement, this agreement is not intended to release any
rights Xxxxxxxxxxx has with respect to his participation in company sponsored
stock option plans, the SPC sponsored 401K plan or any rights Xxxxxxxxxxx has to
seek and obtain indemnification and/or defense in the event that any claim is
asserted against Xxxxxxxxxxx by a third party. Xxxxxxxxxxx represents and
warrants that he is not aware of any pending or threatened claims by a third
party which might give rise to such a claim for indemnification of defense.
(b) As a material inducement to Xxxxxxxxxxx to enter into this Agreement,
each of SPCH and SPC hereby irrevocably and unconditionally waive, release and
discharge Xxxxxxxxxxx, his 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, presently
known to SPCH or SPC, 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 arising out of his
employment and resignation therefrom or the termination thereof, including, but
not limited to, any claim that SPCH 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 Xxxxxxxxxxx, any violation by Xxxxxxxxxxx of Section 16 of the Securities
Exchange Act of 1934, as amended or the agreements of Xxxxxxxxxxx contained
herein.
(c) It is understood and agreed by the Parties 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. The Parties
expressly accept and assume the risk of the facts and assumptions to be so
different, and 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.
Xxxxxxxxxxx acknowledges that:
(a) He has had a full twenty-one (21) days within which to consider this
Agreement before executing it;
(b) He has carefully read and fully understands all of the provisions of
this Agreement;
(c) He is, through this Agreement, releasing SPCH, SPC and their affiliates
from any and all claims he may have against any of them;
(d) He knowingly and voluntarily agrees to all of the terms set forth in
this Agreement;
(e) He knowingly and voluntarily intends to be legally bound by the same;
(f) He was advised and hereby is advised in writing to consider the terms
of this Agreement and consult with an attorney of his choice prior to executing
this Agreement;
(g) He 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) He understands that rights or claims under the Age Discrimination in
Employment Act of 1967 (29 U.S.C. 621 et seq.) that may arise after the date of
this Agreement is executed are not waived.
6. Non-Disclosure.
Xxxxxxxxxxx shall not disclose or deliver to any other party any trade
secrets or confidential or proprietary information gained through employment
with SPCH 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
SPCH or SPC or any subsidiary or division thereof Xxxxxxxxxxx agrees that any
breach of this Section 6 will cause SPCH 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, SPCH and SPC shall
have the right to seek specific performance and other injunctive and equitable
relief.
7. Non-Disparagement.
The Parties 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 the
Parties 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 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 any party to this Agreement hereafter institute any legal action
or administrative proceedings against another party 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 to be a part of this Agreement.
14. Entire Agreement.
This Agreement sets forth the entire agreement between the Parties, and
fully supersedes any and all prior agreements or understandings between the
Parties pertaining to the subject matter hereof. All other contracts, agreements
or understandings between the Parties, other than the Consulting Agreement, 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.
PLEASE READ CAREFULLY. THIS SETTLEMENT AND GENERAL RELEASE AGREEMENT
INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
In witness whereof, this agreement has been duly executed and delivered by
the parties hereto on the date first above written.
SOFTWARE PUBLISHING CORPORATION HOLDINGS, INC.
By: /s/Xxxxx Xxxxxxxx
Xxxxx Xxxxxxxx, Chairman
SOFTWARE PUBLISHING CORPORATION, INC.
By: /s/Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx, Chairman
/s/Xxxxxx X. Xxxxxxxxxxx
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Xxxxxx X. Xxxxxxxxxxx
