{"id":40488,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/settlement-agreement-and-mutual-release-accrue-software-inc2.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"settlement-agreement-and-mutual-release-accrue-software-inc2","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/settlement-agreement-and-mutual-release-accrue-software-inc2.html","title":{"rendered":"Settlement Agreement and Mutual Release &#8211; Accrue Software Inc. and William R. Stein"},"content":{"rendered":"<pre>                    SETTLEMENT AGREEMENT AND MUTUAL RELEASE\n\n\n        This Settlement Agreement and Mutual Release ('Agreement') is made as of\nMay 13, 1998 by and between Accrue Software, Inc. (the 'Company') and William R.\nStein ('Employee').\n\n        Employee was employed by the Company and entered into an Employee\nAgreement with the Company regarding, among other things, protection of\nproprietary and confidential information (the 'Employee Agreement').\n\n        The Company and Employee have mutually agreed to terminate the\nemployment relationship and to release each other from any claims arising from\nor related to the employment relationship.\n\n        In consideration of the mutual promises made herein, the Company and\nEmployee (collectively referred to as the 'Parties') hereby agree as follows:\n\n        1. Resignation and Termination. The Company and Employee acknowledge and\nagree that Employee resigned as Vice President of Product Development with the\nCompany effective May 8, 1998, and that Employee's employment with the Company\nwill terminate effective September 8, 1998 (the 'Termination Date'). Until the\nTermination Date, Employee shall continue to work as a part-time employee of the\nCompany and shall make himself available to the Company as reasonably requested\nby the Company. Until the Termination Date, Employee shall be entitled to\nreceive his current base salary (less applicable withholding), plus accrual of\nvacation, in accordance with the Company's regular payroll practices.\n\n        2. Consideration. In consideration of the release of claims set forth\nbelow and other obligations under this Agreement, the Company agrees to maintain\nEmployee's email and voicemail account at the Company until the Termination\nDate. In addition, the Company agrees to transfer all of its right, title and\ninterest in and to the Toshiba Satellite Pro laptop, Ricochet wireless modem,\nand Palm Pilot PDA currently used by Employee and all software contained therein\nto Employee as a severance payment on the Termination Date after which time the\nCompany will have no further payment obligations to Employee; provided, however,\nEmployee will be responsible and shall pay for through payroll deductions all\ndial-up, access and telephone charges, including Metricom charges, associated\nwith such equipment and incurred and pro rated for use after May 8, 1998.\n\n        3. Stock Options. The Company and Employee acknowledge and agree that\noptions to purchase the Company's Common Stock held by Employee under the Stock\nOption Agreement between the parties dated as of April 24, 1997, as amended (the\n'Option Agreement') which have vested as of the Termination Date, in accordance\nwith the vesting schedule set forth in the Option Agreement, will be exercisable\nfor a period of thirty (30) days after the Termination Date, after which time\nsuch options will expire. Employee will not be entitled to any acceleration of\nvesting in the event of a Corporate Transaction (as defined in and pursuant to\nthe terms under the Option Agreement). Furthermore, there will be no additional\nvesting of such options after the Termination Date.\n\n        4. Benefits. Following the Termination Date, Employee shall have the\nright to continue, at his own expense, coverage under the Company's health\ninsurance as provided by the Consolidated Omnibus Budget Reconciliation Act of\n1985, as amended ('COBRA'). Employee shall not be entitled to participate in the\nCompany's medical, dental, vision or other benefits plans, or any Company 401(k)\n\n\n\n\nplan, and no additional vacation or other paid time off shall accrue following\nthe Termination Date.\n\n        5. Payment of Salary. Employee acknowledges and agrees that he has\nreceived or will have received on the Termination Date all salary, accrued\nvacation, commissions, bonuses, compensation, shares of stock or options\ntherefore or other such sums due to Employee. In light of the payment by the\nCompany of all wages due, or to become due to Employee, the Parties further\nacknowledge and agree that California Labor Code Section 206.5 is not applicable\nto the Parties hereto. That section provides in pertinent part as follows:\n\n        NO EMPLOYER SHALL REQUIRE THE EXECUTION OF ANY RELEASE OF ANY CLAIM OR\n        RIGHT ON ACCOUNT OF WAGES DUE, OR TO BECOME DUE, OR MADE AS AN ADVANCE\n        ON WAGES TO BE EARNED, UNLESS PAYMENT OF SUCH WAGES HAS BEEN MADE.\n\n        6. Release of Claims. Employee agrees that the foregoing consideration\nrepresents settlement in full of all outstanding obligations owed to Employee by\nthe Company. Employee and the Company, on behalf of themselves, and their\nrespective heirs, executors, officers, directors, employees, investors,\nshareholders, administrators, predecessor, successor and affiliate corporations,\nand assigns, hereby fully and forever release each other and their respective\nheirs, executors, officers, directors, employees, investors (and officers and\ndirectors thereof), shareholders (and officers and directors thereof),\nadministrators, predecessor, successor and affiliate corporations, and assigns,\nof and from any claim, duty, obligation or cause of action relating to any\nmatters of any kind, whether presently known or unknown, suspected or\nunsuspected, that any of them may possess arising from any omissions, acts or\nfacts that have occurred up until and including the effective date of this\nAgreement including, without limitation,\n\n               (a) any and all claims relating to or arising from Employee's\nemployment relationship with the Company and the termination of that\nrelationship and the appointment of any officers or directors of the Company in\nconnection with such termination;\n\n               (b) any and all claims relating to, or arising from, Employee's\nright to purchase, or actual purchase or sale of shares of stock of the Company,\nincluding, without limitation, any claim for fraud, misrepresentation, breach of\nfiduciary duty, breach of duty under applicable state corporate law, and\nsecurities fraud under any state or federal law;\n\n               (c) any and all claims for wrongful discharge of employment;\nbreach of contract, both express and implied; breach of a covenant of good faith\nand fair dealing, both express and implied; negligent or intentional infliction\nof emotional distress; negligent or intentional misrepresentation; negligent or\nintentional interference with contract or prospective economic advantage;\ndefamation; negligence; personal injury, assault; battery; invasion of privacy;\nfalse imprisonment; and conversion;\n\n               (d) any and all claims for violation of any federal, state or\nmunicipal statute, including, but not limited to, Title VII of the Civil Rights\nAct of 1964, the Civil Rights Act of 1991, the Age Discrimination in Employment\nAct of 1967, the Americans with Disabilities Act of 1990, the Fair Labor\nStandards Act, the California Fair Employment and Housing Act; and Labor Code\nSection 201, et. seq.;\n\n\n\n                                      -2-\n\n               (e) any and all claims arising out of any other laws and\nregulations relating to employment or employment discrimination; and\n\n               (f) any and all claims for attorneys' fees and costs.\n\nThe Company and the Employee agree that the release set forth in this Section 6\nshall be and remain in effect in all respects as a complete general release as\nto the matters released. This release does not extend to any obligations\nincurred under this Agreement.\n\n        7. Civil Code Section 1542. The Parties represent that they are not\naware of any claim by either of them other than the claims that are released by\nthis Agreement. Employee and the Company acknowledge that they have been advised\nby legal counsel and are familiar with the provisions of California Civil Code\nSection 1542, which provides as follows:\n\n               A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR\n               DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF\n               EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY\n               AFFECTED HIS SETTLEMENT WITH THE DEBTOR.\n\n        Employee and the Company, being aware of such code section, agree to\nexpressly waive any rights they may have thereunder, as well as under any other\nstatute or common law principles of similar effect.\n\n        8. Nonsolicitation. Employee agrees that until one year after the\neffective date of this Agreement, he will not solicit or influence or attempt to\ninfluence any person employed by the Company to terminate or otherwise cease his\nor her employment with the Company or interfere in any manner with the\ncontractual or employment relationship between the Company and any customer,\nvendor or employee of the Company.\n\n        9. No Cooperation. Employee agrees that he will not act in any manner\nthat might damage the business of the Company. Employee agrees that he will not\ncounsel or assist any attorneys or their clients in the presentation or\nprosecution of any disputes, differences, grievances, claims, charges, or\ncomplaints by any third party against the Company and\/or any officer, director,\nemployee, agent, representative, stockholder or attorney of the Company, unless\nunder a subpoena or other court order to do so.\n\n        10. Nondisclosure of Confidential and Proprietary Information. Employee\nshall continue to maintain the confidentiality of all confidential and\nproprietary information of the Company and shall continue to comply with the\nterms and conditions of the Employee Agreement, a copy of which is attached\nhereto as Exhibit A. Employee agrees that at all times hereafter, Employee shall\nnot intentionally divulge, furnish or make available to any party any of the\ntrade secrets, patents, patent applications, price decisions or determinations,\ninventions, customers, proprietary information or other intellectual property\nrights of the Company, until after such time as such information has become\npublicly known otherwise than by act or collusion of Employee. Employee further\nagrees that he will \n\n\n\n                                      -3-\n\n\nreturn all the Company's property and confidential and proprietary information\nin his possession to the Company within five (5) business days from the\nTermination Date.\n\n        11. Non-Disparagement. Each Party agrees to refrain from any\ndisparagement or slander of the other, or tortuous interference with the then\nexisting contracts and relationships of the other.\n\n        12. Breach of this Agreement; Alternate Employment. Employee\nacknowledges that upon any breach of the non-solicitation, no cooperation,\nconfidential and proprietary information, and non-disparagement provisions\ncontained in Sections 8 through 11 of this Agreement, the Company would sustain\nirreparable harm from such breach, and, therefore, Employee agrees that in\naddition to any other remedies which the Company may have under this Agreement\nor otherwise, the Company shall be entitled to obtain equitable relief,\nincluding specific performance and injunctions, restraining Employee from\ncommitting or continuing any such violation of this Agreement. Provided that\nEmployee complies with the provisions of Sections 8 through 11 of this\nAgreement, nothing in this Agreement shall preclude Employee from considering or\naccepting alternate employment or consulting positions with other parties.\n\n        13. No Admission of Liability. The Parties understand and acknowledge\nthat this Agreement constitutes a compromise and settlement of claims. No action\ntaken by the Parties hereto, or either of them, either previously or in\nconnection with this Agreement shall be deemed or construed to be (a) an\nadmission of the truth or falsity of any claims heretofore made or (b) an\nacknowledgment or admission by either party of any fault or liability whatsoever\nto the other party or to any third party.\n\n        14. No Representations. Each Party represents that it has had the\nopportunity to consult with an attorney, and has carefully read and understands\nthe scope and effect of the provisions of this Agreement. Neither Party has\nrelied upon any representations or statements made by the other Party hereto\nwhich are not specifically set forth in this Agreement.\n\n        15. Severability. In the event that any provision hereof becomes or is\ndeclared by a court of competent jurisdiction to be illegal, unenforceable or\nvoid, this Agreement shall continue in full force and effect without said\nprovision.\n\n        16. Entire Agreement. Except as provided herein, this Agreement\nrepresents the entire agreement and understanding between the Company and\nEmployee concerning Employee's separation from the Company, and supersedes and\nreplaces any and all prior agreements and understandings concerning Employee's\nrelationship with the Company and his compensation by the Company, including\nwithout limitation the letter agreement entered into between the Employee and\nthe Company on April 1, 1997.\n\n        17. No Oral Modification. This Agreement may only be amended in writing\nsigned by Employee and the Company.\n\n        18. Governing Law. This Agreement shall be governed by the laws of the\nState of California.\n\n        19. Effective Date. This Agreement is effective seven days after it has\nbeen signed by both Parties.\n\n\n\n                                      -4-\n\n        20. Counterparts. This Agreement may be executed in counterparts, and\neach counterpart shall have the same force and effect as an original and shall\nconstitute an effective, binding agreement on the part of each of the\nundersigned.\n\n        21. Assignment. This Agreement may not be assigned by the Employee or\nthe Company without the prior written consent of the other Party.\nNotwithstanding the foregoing, this Agreement may be assigned by the Company to\na corporation controlling, controlled by or under common control with the\nCompany without the consent of the Employee.\n\n        The Parties have executed this Settlement Agreement and Mutual Release\nas of the date set forth above.\n\nDated:  May 27, 1998                   By: \/s\/ James L. Patterson\n                                           -------------------------------------\n                                           James L. Patterson, President and CEO\n\n\n                                       An Individual:  William R. Stein\n\nDated:  June 4, 1998                   \/s\/ William R. Stein\n                                       -----------------------------------------\n                                       (Employee Signature)\n\n\n\n                                      -5-\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6556],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9539,9551],"class_list":["post-40488","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-accrue-software-inc","corporate_contracts_industries-technology__software","corporate_contracts_types-compensation","corporate_contracts_types-compensation__severance"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40488","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40488"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40488"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40488"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40488"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}