Exhibit 10.9
SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS
This Settlement Agreement and Release of All Claims (hereinafter "Agreement")
is made and entered into by and between: Xxx Xxx and his heirs,
administrators, agents, representatives, executors, successors and assigns
(hereinafter collectively referred to as "Yen"); and Network Computer, Inc.
("NCI") and Oracle Corporation, and each of their officers, administrators,
agents, representatives, shareholders, directors, employees, executors,
successors, assigns, subsidiaries, parent companies, predecessor or successor
companies, or any other individuals or entities related thereto or
potentially liable with respect to Yen's claims (hereinafter collectively
referred to as the "Company").
1. Yen was employed by the Company in the position of President of NCI.
Yen's position as President of NCI and his employment with the Company
ended with his resignation on February 24, 1998.
2. Potential disputes may arise between the Company and Yen relating to
Yen's employment relationship with the Company, the changes in his
employment status, Yen's compensation, the termination of the
employment relationship between him and the Company and the
circumstances attendant thereto.
3. Yen and the Company desire now to settle completely and for all time
their potential disputes and any and all other disputes or differences
between them regarding any matter related to Yen's employment
relationship with the Company, the changes in his employment status,
Yen's compensation and the termination of the employment relationship
between him and the Company.
4. Therefore, in consideration of the covenants and promises herein
contained and for other valuable consideration, receipt of which is
hereby acknowledged, the following Agreement is entered into by the
undersigned parties.
5. This Agreement, and compliance with this Agreement, shall not be
construed as an admission of liability on the part of either party.
Such liability being expressly denied, the parties' intent in this
Agreement is to avoid litigation. Yen hereby represents that he has
neither filed nor caused to be filed any pending charges, suits,
claims, grievances or other action (hereinafter referred to as
"claims") related to Yen's employment relationship with the Company,
the changes in his employment status, Yen's compensation, the
termination of the employment relationship between the Company
and Yen or any other conduct of the Company occurring prior to
the execution of this Agreement. Notwithstanding the above, Yen
agrees that he shall dismiss any claims which have been filed.
6. Yen agrees not to file, pursue or cooperate in the filing or pursuit
by anyone else of any claims which are against or involve the Company
and which are in any way related to Yen's employment relationship with
the Company, the changes in his employment status, Yen's compensation,
the termination of the employment relationship between the Company and
Yen or any other conduct of the Company relating to any of the
foregoing occurring prior to the execution of this Agreement. Yen
agrees that should he learn of any such claims being pursued on his
behalf, he
will use his best efforts to cause such claims to be withdrawn,
dismissed or otherwise terminated with prejudice.
7. In exchange for Yen's execution of this Agreement, the Company agrees
to amend Yen's October 17, 1997 Employment Agreement to provide that
Yen is eligible for certain benefits thereunder notwithstanding his
February 24, 1998 resignation date. Yen agrees that the consideration
set forth herein constitutes full complete and final settlement of any
and all Yen's claims, including but not limited to any claims arising
under the Age Discrimination in Employment Act of 1967 as amended,
actual or potential, known or unknown, which in any way arise from or
are related to Yen's employment relationship with the Company, the
changes in his employment status, Yen's compensation, the termination
of the employment relationship between the Company and Yen or any other
conduct of the Company occurring prior to the execution of this
Agreement.
8. Beginning on February 25, 1998, Yen has the opportunity, under the
terms and conditions of COBRA, to continue medical insurance at his
own expense.
9. Yen acknowledges his continuing obligations to the Company with
respect to the Proprietary Information Agreement. Yen agrees to
continue abiding by the terms and conditions of the Proprietary
Information Agreement.
Yen further acknowledges his obligations to the Company during the
"Restricted Period" as that term is defined and discussed in the
Employment Agreement dated October 17, 1997.
10. Yen voluntarily waives the provision of Section 1542 of the California
Civil Code, and any other provision or statute of like effect, which
provides:
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.
Yen warrants that he has read and understands the aforesaid Section 1542
and he has had the opportunity to consult with and be advised by
counsel regarding its meaning and effect and he voluntarily waives its
provisions and any other provision or statute of like effect.
11. Having so waived the provisions of Section 1542, and any other
provision or statute of like effect, Yen releases the Company from any
and all claims of any kind, whether known or unknown, actual or
potential, which he now has or may have at any time which in any way
relate to Yen's employment relationship with the Company, the changes
in his employment status, Yen's compensation, the termination of the
employment relationship between the Company and Yen and any other
conduct of the parties relating to Yen's employment and occurring prior
to the execution of this Agreement.
12. Yen warrants that he has not assigned, transferred nor purported to
assign or transfer any claim against the Company that arose prior to
the execution of this Agreement and that he will not assign or transfer
or purport to assign or transfer hereafter any such claim.
13. Yen acknowledges that he is hereby advised to consult with and
warrants that he has had the opportunity to be represented by legal
counsel regarding his claims, other potential claims, and this
Agreement. Yen freely and voluntarily enter into this Agreement.
14. Each party shall pay their own attorneys' fees, if any, incurred in
connection with the negotiation and drafting of this Agreement. Each
party shall release and forever hold the other harmless from any
liability to their attorneys for payment of such fees pursuant to any
agreement or understanding between each party and their attorneys.
15. The parties warrants that in agreeing to the terms of this Agreement,
they have not relied in any way upon any representations or statements
of the other party regarding the subject matter hereof or the basis or
effect of this Agreement other than those representations or statements
contained herein.
16. This Agreement shall be governed by the laws of California.
17. Any legal action or legal proceeding relating to this Agreement shall
be instituted in any state or federal court in San Francisco or San
Mateo County, California. The parties agree to submit to the
jurisdiction of and agree that venue is proper in the aforesaid courts
in any such action or proceeding.
18. If any part of this Agreement shall be determined to be illegal,
invalid or unenforceable, the remaining part shall not be affected
thereby, and the illegal, unenforceable or invalid parts shall be
deemed not to be a part of this Agreement.
19. This Agreement sets forth the entire Agreement between the parties
thereto and supersedes any and all prior agreements or understandings,
written or oral, between the parties pertaining to the subject matter
hereof. No other promises or agreements shall be binding upon the
parties with respect to this subject matter unless contained herein or
separately agreed to in writing by the parties.
20. In the event that legal proceedings are initiated for the purpose of
enforcing the terms of this Agreement, the prevailing party in any
such proceeding shall be entitled to an award of reasonable
attorneys' fees and costs incurred in bringing or defending such
action. It is further agreed that the prevailing party shall be
entitled to an award or reasonable attorneys' fees and costs incurred
in collecting any judgment which results from any proceeding brought
to enforce the terms of this Agreement.
21. The Company, after reasonable inquiry, is not currently aware of any
claims and does not anticipate any claims against Yen.
22. Notwithstanding any other provision of this Agreement, nothing in this
Agreement shall be deemed to preclude Yen or his designee from
enforcing or establishing, or limiting Yen's or his designee's ability
to enforce or establish, including as against the Company, any of
Yen's or his designee's rights relating to ownership, exploitation or
precluding infringement of Yen's or his designee's right, title and
interest in and to the intellectual property rights relating to
technology that Yen has developed or will develop while engaged in
"Permitted Activities" (as defined in Section 9.a. of Yen's October
17, 1997 Employment Agreement, as amended ("Employment Agreement")).
23. The offer to Yen set forth in the Agreement remains open for
twenty-one days, during which time he may review and consider this
Agreement. Further Yen has until seven days following the execution of
this Agreement to revoke it, in which case its terms shall be
ineffective and unenforceable. Revocation can be made by delivering a
written notice of revocation to:
Office of the General Counsel
Network Computer, Inc.
0000 Xxxxxx Xxxxxxx, XX 000000
Xxxxxxx Xxxxxx, XX 00000
/s/ Xxx Xxx /s/ Xxxxx Xxxx
------------------------------- --------------------------------
Xxx Xxx Network Computer, Inc.
By: Xxxxx Xxxx
-----------------------------
Title: CEO
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Dated: 10/8/98 Dated: 10/2/98
------------------------- ------------------------
[LETTERHEAD]
FEBRUARY 24, 1998
Board of Directors
Network Computer, Inc.
0000 Xxxxxx Xxxxxxx
Xxxxxxx Xxxxxx, XX 00000
To the Board of Directors:
I hereby resign as President of Network Computer, Inc., effective
February 24, 1998.
Sincerely,
/s/ Xxx Xxx
-------------------------
Xxx Xxx
[LETTERHEAD]
APRIL 1, 1998
Board of Directors
Network Computer, Inc.
0000 Xxxxxx Xxxxxxx
Xxxxxxx Xxxxxx, XX 00000
To the Board of Directors:
I hereby resign as Director of Network Computer, Inc., effective
April 1, 1998.
Sincerely,
/s/ Xxx Xxx
-------------------------
Xxx Xxx
