Exhibit 10.23
GENERAL RELEASE
THIS GENERAL RELEASE ("General Release") is being executed and
delivered as of May 30, 1997, on behalf of the parties identified on Annex I
hereto (all of whom are referred to collectively as the "Releasors," and each of
whom is referred to individually as a "Releasor") to and in favor of, and for
the benefit of AWARD SOFTWARE INTERNATIONAL, INC., a California corporation
("Purchaser"), and the other Releasees (as defined in Section 2).
RECITALS
A. Contemporaneously with the execution and delivery of this General
Release, Purchaser intends to effectuate a merger (the "Merger") of Award
Acquisition Sub Corp., a Delaware corporation and a wholly owned subsidiary of
Purchaser, with Unicore Software, Inc., a Massachusetts corporation (the
"Company") in accordance with a certain Agreement and Plan of Merger and
Reorganization ("Merger Agreement"), dated May 29, 1997. Upon consummation of
the Merger, the Company will cease to exist, and Merger Sub will be renamed
"Unicore Software, Inc." and operate as a wholly owned subsidiary of Purchaser.
B. Purchaser has required, as a condition to consummating the
transactions contemplated by the Merger Agreement, that the Releasors execute
and deliver this General Release.
C. The parties hereto acknowledge that this General Release shall not
apply to the Merger Agreement and the transactions contemplated thereby.
AGREEMENT
In order to induce Purchaser to consummate the transactions
contemplated by the Merger Agreement, and for other valuable consideration (the
receipt and sufficiency of which are hereby acknowledged by the Releasors), the
Releasors hereby covenant and agree as follows:
1. RELEASE. Each Releasor, for himself and for each of such
Releasor's Associated Parties (as defined in Section 2), hereby generally,
irrevocably, unconditionally and completely releases and forever discharges each
of the Releasees (as defined in Section 2) from, and hereby irrevocably,
unconditionally and completely waives and relinquishes, each of the Released
Claims (as defined in Section 2).
2. DEFINITIONS.
(A) The term "Associated Parties," when used herein with respect
to a Releasor, shall mean and include: (i) such Releasor's predecessors,
successors, executors, administrators, heirs and estate; (ii) such Releasor's
past, present and future assigns, agents and representatives; (iii) each entity
that such Releasor has the power to bind (by such Releasor's acts or signature)
or over which such Releasor directly or indirectly exercises control; and (iv)
each
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entity of which such Releasor owns, directly or indirectly, at least 50% of the
outstanding equity, beneficial, proprietary, ownership or voting interests.
(B) The term "Releasees" shall mean and include: (i) Purchaser;
(ii) the Company; (iii) each of the direct and indirect subsidiaries of the
Company; (iv) each other affiliate of the Company; and (v) the successors and
past, present and future assigns, directors, officers, employees, agents,
attorneys and representatives of the respective entities identified or otherwise
referred to in clauses "(i)" through "(iv)" of this sentence, other than the
Releasors.
(C) The term "Claims" shall mean and include all past, present
and future disputes, claims, controversies, demands, rights, obligations,
liabilities, actions and causes of action of every kind and nature, including:
(i) any unknown, unsuspected or undisclosed claim; (ii) any claim or right that
may be asserted or exercised by a Releasor in such Releasor's capacity as a
stockholder, director, officer or employee of the Company or in any other
capacity; and (iii) any claim, right or cause of action based upon any breach of
any express, implied, oral or written contract or agreement.
(D) The term "Released Claims" shall mean and include each and
every Claim that (i) any Releasor or any Associated Party of any Releasor may
have had in the past, may now have or may have in the future against any of the
Releasees, and (ii) has arisen or arises directly or indirectly out of, or
relates directly or indirectly to, any circumstance, agreement, activity,
action, omission, event or matter occurring or existing on or prior to the date
of this General Release.
3. CIVIL CODE (S)1542. Each Releasor (a) represents, warrants and
acknowledges that such Releasor has been fully advised by his attorney of the
contents of Section 1542 of the Civil Code of the State of California, and (b)
hereby expressly waives the benefits thereof and any rights such Releasor may
have thereunder. Section 1542 of the Civil Code of the State of California
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."
Each Releasor also hereby waives the benefits of, and any rights such Releasor
may have under, any statute or common law principle of similar effect in any
jurisdiction.
4. REPRESENTATIONS AND WARRANTIES. Each Releasor represents and
warrants that:
(A) such Releasor has not assigned, transferred, conveyed or
otherwise disposed of any Claim against any of the Releasees, or any direct or
indirect interest in any such Claim, in whole or in part;
(B) to the best of such Releasor's knowledge, no other person or
entity has any interest in any of the Released Claims;
2.
(C) no Associated Party of such Releasor has or had any Claim
against any of the Releasees;
(D) no Associated Party of such Releasor will in the future have
any Claim against any Releasee that arises directly or indirectly from or
relates directly or indirectly to any circumstance, agreement, activity, action,
omission, event or matter occurring or existing on or before the date of this
General Release;
(E) this General Release has been duly and validly executed and
delivered by such Releasor;
(F) this General Release is a valid and binding obligation of
such Releasor and such Releasor's Associated Parties, and is enforceable against
such Releasor and each of such Releasor's Associated Parties in accordance with
its terms;
(G) there is no action, suit, proceeding, dispute, litigation,
claim, complaint or investigation by or before any court, tribunal, governmental
body, governmental agency or arbitrator pending or, to the best of the knowledge
of such Releasor, threatened against such Releasor or any of such Releasor's
Associated Parties that challenges or would challenge the execution and delivery
of this General Release or the taking of any of the actions required to be taken
by such Releasor under this General Release;
(H) neither the execution and delivery of this General Release
nor the performance hereof will (i) result in any violation or breach of any
agreement or other instrument to which such Releasor or any of such Releasor's
Associated Parties is a party or by which such Releasor or any of such
Releasor's Associated Parties is bound, or (ii) result in a violation or any
law, rule, regulation, treaty, ruling, directive, order, arbitration award,
judgment or decree to which such Releasor or any of such Releasor's Associated
Parties is subject; and
(I) no authorization, instruction, consent or approval of any
person or entity is required to be obtained by such Releasor or any of such
Releasor's Associated Parties in connection with the execution and delivery of
this General Release or the performance hereof.
(J) such Releasor is not relying on any representation or
promise of any other person in executing this General Release, or in making the
release provided for herein, and assumed the risk of any misrepresentation,
concealment or mistake. If a Releasor should subsequently discover that a fact
relied upon by it in entering into this General Release was untrue, or that a
fact was concealed from it, or that is understanding of the facts or of the law
was incorrect, such party shall not be entitled to any relief in connection
therewith, including, without limitation, any alleged right or claim to set
aside or rescind this General Release. This General Release is intended to be
and is final and binding, regardless of any claims of misrepresentation, promise
made without the intention to perform, concealment of fact, mistake of fact or
law, or of any other circumstance.
5. INDEMNIFICATION. Without in any way limiting any of the rights or
remedies otherwise available to any Releasee, each Releasor shall indemnify and
hold harmless each
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Releasee against and from any loss, damage, injury, harm, detriment, lost
opportunity, liability, exposure, claim, demand, settlement, judgment, award,
fine, penalty, tax, fee, charge or expense (including attorneys' fees) that is
directly or indirectly suffered or incurred at any time by such Releasee, or to
which such Releasee otherwise becomes subject at any time, and that arises
directly or indirectly out of or by virtue of, or relates directly or indirectly
to, (a) any failure on the part of such Releasor to observe, perform or abide
by, or any other breach of, any restriction, covenant, obligation,
representation, warranty or other provision contained herein, or (b) the
assertion or purported assertion of any of the Released Claims by such Releasor
or any of such Releasor's Associated Parties.
6. MISCELLANEOUS.
(A) This General Release sets forth the entire understanding of
the parties relating to the subject matter hereof and supersedes all prior
agreements and understandings among or between any of the Releasors and
Releasees relating to the subject matter hereof.
(B) If any provision of this General Release or any part of any
such provision is held under any circumstances to be invalid or unenforceable in
any jurisdiction, then (i) such provision or part thereof shall, with respect to
such circumstances and in such jurisdiction, be deemed amended to conform to
applicable laws so as to be valid and enforceable to the fullest possible
extent, (ii) the invalidity or unenforceability of such provision or part
thereof under such circumstances and in such jurisdiction shall not affect the
validity or enforceability of such provision or part thereof under any other
circumstances or in any other jurisdiction, and (iii) such invalidity or
enforceability of such provision or part thereof shall not affect the validity
or enforceability of the remainder of such provision or the validity or
enforceability of any other provision of this General Release. If any provision
of this General Release or any part of such provision is held to be
unenforceable against any Releasor, then the unenforceability of such provision
or part thereof against such Releasor shall not affect the enforceability
thereof against any other Releasor. Each provision of this General Release is
separable from every other provision of this General Release, and each part of
each provision of this General Release is separable from every other part of
such provision.
(C) This General Release shall be construed in accordance with,
and governed in all respects by, the laws of the State of California (without
giving effect to principles of conflicts of laws).
(D) Any legal action or other legal proceeding relating to this
General Release or the enforcement of any provision of this General Release may
be brought or otherwise commenced by any Releasee in any state or federal court
located in the State of California. Each Releasor:
(I) expressly and irrevocably consents and submits to the
jurisdiction of each state and federal court located in the State of California
in connection with any such legal proceeding;
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(II) agrees that each state and federal court located in
the State of California shall be deemed to be a convenient forum; and
(III) agrees not to assert (by way of motion, as a defense
or otherwise), in any such legal proceeding commenced in any state or federal
court located in the State of California, any claim that such Releasor is not
subject personally to the jurisdiction of such court, that such legal proceeding
has been brought in an inconvenient forum, that the venue of such proceeding is
improper or that this General Release or the subject matter of this General
Release may not be enforced in or by such court.
Nothing contained in this General Release shall be deemed to limit or otherwise
affect the right of any Releasee (1) to commence any legal proceeding or to
otherwise proceed against any of the Releasors or any other person or entity in
any other forum or jurisdiction, or (2) to raise this Release as a defense in
any legal proceeding in any other forum or jurisdiction.
(E) This General Release may be executed in several
counterparts, each of which shall constitute an original and all of which, when
taken together, shall constitute one agreement.
(F) Each Releasor shall execute and/or cause to be delivered to
each Releasee such instruments and other documents, and shall take such other
actions, as such Releasee may reasonably request for the purpose of carrying out
or evidencing any of the actions contemplated by this General Release.
(G) If any legal action or other legal proceeding relating to
this General Release or the enforcement of any provision hereof is brought by
any Releasor or Releasee, the prevailing party shall be entitled to recover
reasonable attorneys' fees, costs and disbursements to the extent actually
incurred (in addition to any other relief to which the prevailing party may be
entitled).
(H) This General Release shall be effective with respect to, and
shall be binding upon and enforceable against, each Releasor who executes this
General Release, regardless of whether any of the other Releasors executes this
General Release.
(I) Whenever required by the context, the singular number shall
include the plural, and vice versa; the masculine gender shall include the
feminine and neuter genders; and the neuter gender shall include the masculine
and feminine genders.
(J) Any rule of construction to the effect that ambiguities are
to be resolved against the drafting party shall not be applied in the
construction or interpretation of this General Release.
(K) As used in this General Release, the words "include" and
"including," and variations thereof, shall not be deemed to be terms of
limitation, and shall be deemed to be followed by the words "without
limitation."
5.
IN WITNESS WHEREOF, the Releasors have caused this General Release to
be executed as of the date first above written.
RELEASORS:
____________________________
PIERRE A. NARATH
GENERAL RELEASE
ANNEX I
LIST OF RELEASORS
Pierre A. Narath