SETTLEMENT AGREEMENT AND GENERAL RELEASE OF ALL CLAIMS
This Settlement Agreement and General Release of All Claims (hereinafter
'Agreement') is made and entered into by and between: Jerry Baker and his
heirs, administrators, agents, representatives, executors, successors and
assigns (hereinafter collectively referred to as 'Baker'); and Oracle
Corporation and Network Computer, Inc., and each of their current and former
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 Baker's claims
(hereinafter collectively referred to as 'the Companies').
1. Baker's position as President and CEO of Network Computer, Inc. and his
employment ended February 13, 1998.
2. Potential disputes may arise between the Companies and Baker relating to
Baker's employment relationship with the Companies, the changes in his
employment status, Baker's compensation, the termination of the
employment relationship between him and the Companies and the
circumstances attendant thereto.
3. Baker and the Companies desire now to settle completely and for all
time any and all disputes or differences between them regarding any
matter which arose from or were related to Baker's employment
relationship with the Companies, the changes in his employment status,
Baker's compensation, the termination of the employment relationship
between him and the Companies and the circumstances attendant thereto.
4. Therefore, in consideration of the following covenants and promises and
for other valuable consideration, this 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. Baker 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') which
in any way arise from or relate to his employment relationship with the
Companies, the changes in his employment status, Baker's compensation,
the termination of the employment relationship or any other conduct of
the Companies occurring prior to the execution of this Agreement.
Notwithstanding the above, Baker agrees that he shall dismiss any claims
which have been filed.
6. Baker agrees not to file, pursue or cooperate in the filing or pursuit
by anyone else of any claims which are against or involve the Companies
and which in any way arise from or relate to Baker's employment
relationship with the Companies, the changes in his employment status,
Baker's compensation, the termination of the employment relationship
between him and the Companies or any other conduct of the Companies
occurring prior to the execution of
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this Agreement. Baker 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. Seven days following Baker's execution of this Agreement, the Companies
shall transmit to Baker a gross lump sum severance payment of
$180,000.00 (six months' base salary) less ordinary payroll deductions
including state, federal and local tax and less compensation received by
Baker for the period February 16, 1998 through February 27, 1998. In
addition, Baker shall receive payment for all vacation accrued during
his employment at Network Computer, Inc. Baker agrees that the foregoing
severance payment constitutes full, complete and final settlement of any
and all Baker'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 Baker's employment relationship with the Companies, the
changes in his employment status, Baker's compensation, the termination
of the employment relationship between him and the Companies or any
other conduct of the Companies occurring prior to the execution of this
Agreement.
8. Baker agrees and acknowledges that as of February 13, 1998, all
unvested stock options granted to him under all Oracle Corporation
incentive stock options and nonqualified stock option grants, including
but not limited to Oracle Stock Option Grant Nos. 002645, 002646,
002913, 004417 and all unvested stock options granted to Baker under the
Network Computer, Inc. 1996 Stock Option Plan will cease to continue to
vest in accordance with the terms of the applicable stock option plans
and the underlying agreements. All Oracle Corporation and Network
Computer, Inc. stock options not vested as of February 13, 1998 are
canceled. Baker shall have the right to exercise vested Oracle
Corporation and Network Computer, Inc. options at any time up to and
including three months after his February 13, 1998 termination of
employment, but not later than the stock option expiration date.
9. Baker's insurance coverage for medical and dental care benefits provided
under Network Computer, Inc.'s employee insurance plans ended February
13, 1998 unless Baker elects COBRA coverage within sixty days of
February 13, 1998. If Baker elects COBRA, Baker will receive Network
Computer, Inc.-sponsored COBRA coverage for six months, through August 13,
1998. Beginning on August 14, 1998, Baker will have the opportunity,
under the terms and conditions of COBRA, to continue medical insurance
at his own expense.
10. Baker acknowledges his continuing obligations to the Companies with
respect to the Proprietary Information Agreements he signed with the
Companies. Baker agrees to continue abiding by the terms and conditions
of the Companies' Proprietary Information Agreements. Baker agrees to
cooperate with the Companies to effectuate the management transition and
agrees to respond to reasonable requests for related information.
11. Baker voluntarily waives the provision of Section 1542 of the California
Civil Code, and any other statute or common law doctrine of like effect,
which provides:
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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.
Baker 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 those of any other statute or common law doctrine of like
effect.
12. Having so waived the provisions of Section 1542 and those of any other
statute or common law doctrine of like effect, Baker releases the
Companies 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 arose from or relate to Baker's employment relationship with the
Companies, the changes in his employment status, Baker's compensation,
the termination of the employment relationship between the Companies and
Baker and any other conduct of the Companies occurring prior to the
execution of this Agreement.
13. Baker warrants that he has not assigned, transferred nor purported to
assign or transfer any claim against the Companies 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.
14. Baker warrants that he is hereby advised to and has had the opportunity to
be represented by legal counsel regarding his claims, other potential
claims, and this Agreement. Baker freely and voluntarily entered into
this Agreement.
15. Each party shall pay its 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.
16. The parties warrant 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.
17. This Agreement shall be governed by the laws of California.
18. 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.
19. 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.
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20. This Agreement may be changed only by an agreement in writing signed by
Baker and the Companies.
21. 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 of
reasonable attorneys' fees and costs incurred in collecting any
judgement which results from any proceeding brought to enforce the terms
of this Agreement.
22. The offer to Baker set forth in the Agreement remains open for
twenty-one days, during which time he may review and consider this
Agreement. Should Baker sign and return the Agreement in less than
twenty-one days, Baker agrees that he does so voluntarily. Further Baker
has until seven days following Baker's 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:
Juana M. Schurman, Associate General Counsel
Oracle Corporation
500 Oracle Parkway, M/S 5op7
Redwood Shores, CA 94065
/s/ Jerry Baker /s/ Juana M. Schurman
---------------------------------- -----------------------------------
Jerry Baker Oracle Corporation
By: Juana M. Schurman
------------------------------
Title: Associate General Counsel
---------------------------
Dated: 3/6/98 Dated: 3/11/98
---------------------------- ---------------------------
-----------------------------------
Network Computer, Inc.
By: /s/ David Boux
------------------------------
David Boux
Title: CEO
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Dated: 3/16/98
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Settlement Agreement and General Release of All Claims - Jerry Baker, Oracle Corp. and Network Computer Inc.
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