Preview of our top selling Mutual Release Agreement
CBT Group - Agreement & Mutual Release Dated 6/3/98
EXHIBIT 10.1
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AGREEMENT AND MUTUAL RELEASE
This Agreement and Mutual Release ("Agreement") is made by and between CBT GROUP PUBLIC LIMITED COMPANY (together with its subsidiaries, the "Company"), and Jeffrey N. Newton ("Newton").
WHEREAS, Newton has provided services to the Company since April of 1992, and has served as Vice President of Business Development to the Company since March of 1997;
WHEREAS, Newton desires to terminate employment with the Company for personal reasons, and Newton and the Company desire to release each other from any claims arising from or related to Newton's employment with the Company;
WHEREAS, the Company and Newton have entered into a Confidential Information and Invention Assignment Agreement ( the "Confidentiality Agreement");
NOW THEREFORE, in consideration of the mutual promises made herein, the Company and Newton (collectively referred to as "the Parties") hereby agree as follows:
1. RESIGNATION AND TERMINATION OF EMPLOYMENT. Newton will resign from his
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position as Vice President, Business Development and terminate employment
with the Company on June 30, 1998 (the "Resignation Date"). All
compensation due Newton, including salary, commissions and quarterly
bonus, will be payable within thirty (30) days of June 30, 1998. Newton
will submit all claims for reimbursement of employee expenses within the
same time frame.
2. CONSIDERATION. Newton agrees to remain available as a consultant
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through October 31, 1999 (the "Consulting Period"). Newton agrees to
execute a consulting agreement in the form of Exhibit A (the "Consulting
Agreement") on the commencement of the Consulting Period. During the
Consulting Period and upon reasonable notice, Newton shall make himself
available for consultation and/or participation in conferences, up to a
maximum of thirty (30) hours per month. The Company will pay Newton a lump
sum of $15,000 by July 31, 1998 in consideration of his availability
through the Consulting Period and, in addition, the Company will pay Newton
an hourly rate of $100 for a minimum of ten (10) hours per month, for a
minimum monthly payment of $1,000. Newton will also continue to vest in
Company options during the Consulting Period as provided in paragraph 4
below.
3. RELATIONSHIP OF THE PARTIES DURING THE CONSULTING PERIOD. It is the
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express intention of the parties that Newton shall be an independent
contractor during the Consulting Period, and Newton acknowledges and agrees
that he will receive no Company-sponsored benefits either as a Consultant
or an employee after June 30, 1998, except those benefits mandated by
state or federal law upon termination of employment.
4. STOCK OPTIONS. Newton shall be allowed to continue to vest in options
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("Options") to purchase American Depository Shares (ADSs") representing
the ordinary shares of the Company subject to share option agreements
dated July 8, 1994, April 13, 1995, January 16, 1996, April 12, 1996,
March 18, 1997 and January 13, 1998 (the "Option Agreements") through the
Consulting Period, which shall terminate on October 31, 1999. As of June
30, 1998, Newton will have fully vested in 23,339
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ADSs of the Company subject to the Options. To the extent Newton's
Options have not vested as of October 31, 1999, such Options shall
terminate, and all vested Options which have not been exercised at that
date shall also terminate as of the end of the Consulting Period, which
shall terminate on October 31, 1999. During the Consulting Period, Newton
shall have no right to additional option grants by the Company.
5. CONFIDENTIAL INFORMATION. Newton shall continue to maintain the
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confidentiality of all confidential and proprietary information of the
Company and shall continue to comply with the terms and conditions of the
Confidentiality Agreement between Newton and the Company. Newton shall
return all Company property and confidential and proprietary information in
his possession to the Company within five business days from the
termination of the Consulting Period, or upon the Company's earlier
request. The Parties hereto each agree to use their best efforts to
maintain in confidence the existence of this Agreement, the contents and
terms of this Agreement, and the consideration for this Agreement, except
to the extent disclosure is required by law or administrative regulation.
6. RELEASE OF CLAIMS. Newton agrees that the foregoing consideration
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represents settlement in full of all outstanding obligations owed to
Newton by the Company. Newton and the Company, on behalf of themselves,
and their respective heirs, family members, executors, officers,
directors, employees, investors, shareholders, administrators,
affiliates, divisions, subsidiaries, predecessor and successor
corporations, and assigns, hereby fully and forever release each other
and their respective heirs, family members, executors, officers,
directors, employees, investors, shareholders, administrators,
affiliates, divisions, subsidiaries, predecessor and successor
corporations, and assigns, from, and agree not to sue concerning, any
claim, duty, obligation or cause of action relating to any matters of any
kind, whether presently known or unknown, suspected or unsuspected, that
any of them may possess arising from any omissions, acts or facts that
have occurred up until and including the Effective Date (as hereafter
defined) of this agreement including, without limitation,
(a) any and all claims relating to or arising from Newton's employment and
the termination of that employment with the Company;
(b) any and all claims relating to, or arising from, Newton's right to
purchase, or actual purchase of shares of stock of the Company,
including, without limitation, any claims for fraud,
misrepresentation, breach of fiduciary duty, breach of duty under
applicable state corporate law, and securities fraud under any state
or federal law;
(c) any and all claims for wrongful discharge of employment; breach of
contract, both express and implied; breach of a covenant of good
faith and fair dealing, both express and implied; negligent or
intentional infliction of emotional distress; negligent or
intentional misrepresentation; negligent or intentional interference
with contract or prospective economic advantage; defamation;
negligence; personal injury; assault; battery; invasion of privacy;
false imprisonment; conversion;
(d) any and all claims for violation of any federal, state or municipal
statute, including, but not limited to, Title VII of the Civil
Rights Act of 1964, the Civil Rights Act of 1991,the Age
Discrimination in Employment Act of 1967, the Americans with
Disabilities Act of 1990, the Fair Labor Standards Act, the
California Fair Employment and Housing Act, Labor Code Section 201,
et seq.;
(e) any and all claims arising out of any other laws and regulations and
regulations
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relating to employment or employment discrimination; and
(f) any and all claims for attorneys' fees and/or costs.
The Company and Newton agree that the release set forth in this section
shall be and remain in effect in all respects as a complete general release
as to the matters released. This release does not extend to any
obligations incurred under this Agreement.
7. ACKNOWLEDGMENT OF WAIVER OF CLAIMS UNDER ADEA. Newton acknowledges that he
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is waiving and releasing any rights he may have under the Age
Discrimination in Employment Act of 1967 ("ADEA") and that this waiver
and release is knowing and voluntary. Newton and the Company agree that
this waiver and release does not apply to any rights or claims that may
arise under ADEA after the Effective Date of this Agreement. Newton
acknowledges that the consideration given for this waiver and release
Agreement is in addition to anything of value to which Newton was already
entitled. Newton further acknowledges that he has been advised by this
writing that (a) he should consult with an attorney prior to executing
this Agreement; (b) he has at least twenty-one (21) days within which to
consider this Agreement; (c) he has at least seven (7) days following the
execution of this Agreement by the parties to revoke the Agreement; and
(d) this Agreement shall not be effective until the revocation period has
expired.
8. CIVIL CODE SECTION 1542. The Parties represent that they are not aware of
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any claim by either of them other than the claims that are released by this
Agreement. Newton and the Company acknowledge that they have been advised
by legal counsel and are familiar with the provisions of California Civil
Code Section 1542, 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.
Newton and the Company, being aware of said code section, agree to
expressly waive any rights they may have thereunder, as well as under any
other statute or common law principles of similar effect.
9. NON-COMPETITION. Newton agrees that, during the Consulting Period and for
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a period of two years after the termination of the Consulting Period, he
will not, directly or indirectly, own, manage, operate, join, control,
participate in or finance the ownership, management, operation or control
of, or be connected in any manner with a company whose primary business is
to provide interactive educational software for information technology
professionals, including but not limited to the following: NETG, Gartner
Group, WBT, Learning Tree, Harcourt, Mastering Computers, Global Knowledge
Network, Ziff Davis University, Data Tech, Knowledge Universe, Digital
Think, Knowledge Soft and any subsidiary or division of a development
partner of the Company (including but not limited to IBM Education, Oracle
Education, Lotus Education, Cisco Education and Novell Education). Newton
may accept other non-competitive employment while retaining consultancy
with the Company as long as he is able to meet the maximum 30 hour
commitment, if required, as specified above in Paragraph 2.
10. NON-SOLICITATION. Newton agrees that for a period of two (2) years,
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during the Consulting Period and after the termination of the Consulting
Period, he will not either directly or indirectly solicit, induce,
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recruit or encourage any of the Company's employees to leave their
employment, or take away such employees, or attempt to solicit, induce,
recruit, encourage or take away employees of the Company, either for
himself or for any other person or entity; provided, however, that the
employment of employees of the Company by any employer, person, firm or
company with which I am connected or associated shall not in itself
breach or be deemed to be a breach of this clause.
11. ARBITRATION. The parties agree that any and all disputes arising out of
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the terms of this Agreement, their interpretation, and any of the matters
herein released, shall be subject to binding arbitration in Santa Clara
County before the American Arbitration Association under its California
Employment Dispute Resolution Rules, or by a judge to be mutually agreed
upon. The Parties agree that the prevailing party in any arbitration
shall be entitled to injunctive relief in any court of competent
jurisdiction to enforce the arbitration award. The Parties agree that the
prevailing party in any arbitration shall be awarded its reasonable
attorney's fees and costs. NEWTON HAS READ AND UNDERSTANDS THIS
ARBITRATION PROVISION. NEWTON UNDERSTANDS THAT BY SIGNING THIS AGREEMENT,
HE AGREES TO SUBMIT ANY CLAIMS ARISING OUT OF, RELATING TO, OR IN
CONNECTION WITH THIS AGREEMENT, OR THE INTERPRETATION, VALIDITY,
CONSTRUCTION PERFORMANCE, BREACH OR TERMINATION THEREOF, TO BINDING
ARBITRATION, EXCEPT AS PROVIDED IN THE LAST SENTENCE OF THIS SECTION, AND
THAT THIS ARBITRATION PROVISION CONSTITUTES A WAIVER OF NEWTON'S RIGHT TO
A JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES RELATING TO
ALL ASPECTS OF THE RELATIONSHIP BETWEEN THE PARTIES. The parties may
apply to any court of competent jurisdiction for a temporary restraining
order, preliminary injunction, or other interim or conservatory relief,
as necessary without breach of this arbitration agreement and without
abridgement of the powers of the arbitrator.
12. NON-DISPARAGEMENT. Each party agrees to refrain from any disparagement,
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defamation, slander of the other, or tortious interference with the
contracts and relationships of the other. In addition, Newton
specifically also agrees not to disparage or to publicly express
disapproval of Company's employees, products or services. The parties
each acknowledge and agree that it would be impossible and inadequate to
measure actual damages if either party breaches its obligations under
this paragraph, and therefore the parties agree that $150,000 shall be
payable, as liquidated damages and not as a penalty, by the breaching
party to the non-breaching party. For purposes of this paragraph, the
"Company" shall be deemed to refer solely to directors and officers of
the Company. The parties agree that the damages specified are a good
faith estimate of the actual amount of damages which would be sustained
and that such damages are reasonable under the circumstances.
13. COSTS. The parties shall each bear his or its own costs, expert fees,
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attorneys' fees and other fees incurred in connection with this Agreement.
14. NO REPRESENTATIONS. Each party represents that it has had the opportunity
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to consult with an attorney, and has carefully read and understands the
scope and effect of the provisions of this Agreement. Neither party has
relied upon any representations or statements made by the other party
hereto which are not specifically set forth in this Agreement.
15. SEVERABILITY. In the event that any provision hereof becomes or is
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declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and
effect without said provision.
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16. ENTIRE AGREEMENT. This Agreement, the Option Agreements, the Consulting
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Agreement and the Confidentiality Agreement, represent the entire
agreement and understanding between the Company and Newton concerning
Newton's separation from the Company, and supersede and replace any and all
prior agreements and understandings concerning Newton's relationship with
the Company and his compensation by the Company.
17. NO ORAL MODIFICATION. This Agreement may only be amended in writing signed
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by Newton and the Chief Executive Officer of the Company.
18. GOVERNING LAW. . This Agreement shall be governed by the internal laws of
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the State of California, without regard to conflict of laws principles.
19. EFFECTIVE DATE. This Agreement is effective seven days after it has been
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signed by both Parties ("the Effective Date").
20. COUNTERPARTS. This Agreement may be executed in counterparts, and each
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counterpart shall have the same force and effect as an original and shall
constitute an effective, binding agreement on the part of each of the
undersigned.
21. VOLUNTARY EXECUTION OF AGREEMENT. This Agreement is executed voluntarily
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and without any duress or undue influence on the part or behalf of the
Parties hereto, with the full intent of releasing all claims. The Parties
acknowledge that:
(a) They have read this Agreement;
(b) They have been represented in the preparation, negotiation, and
execution of this Agreement by legal counsel of their own choice or
that they have voluntarily declined to seek such counsel;
(c) They understand the terms and consequences of this Agreement and of
the releases it contains;
(d) They are fully aware of the legal and binding effect of this
Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the respective dates set forth below.
CBT GROUP, PLC
Dated: June 3, 1998 By: /s/ James J. Buckley
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(Signature)
Title: Chief Executive and President
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JEFFREY N. NEWTON, an individual
Dated: June 3, 1998 /s/ Jeffrey N. Newton
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(Signature)
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ADDENDUM A
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CONSULTING AGREEMENT
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This Consulting Agreement ("Agreement") is made and entered into as of the 30th day of June, 1998 by and between CBT Systems USA Ltd. (the "Company"), and Jeffrey N. Newton ("Consultant"). The Company desires to retain Consultant as an independent contractor to perform consulting services for the Company and Consultant is willing to perform such services, on terms set forth more fully below. In consideration of the mutual promises contained herein, the parties agree as follows:
1. SERVICES AND COMPENSATION
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(a) Services. Consultant agrees to perform for the Company the
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(b) Compensation.
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(i) Company shall pay Consultant $100 per hour, for a minimum of ten (10) hours per month. A monthly payment of $1,000 will be payable by the end of every calendar month, begin...
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