EXHIBIT 10.10
AGREEMENT AND GENERAL RELEASE
This Agreement and General Release (this Agreement) entered into on this
31st day of July, 1998 by and between Tut Systems, Inc., a California
corporation, 2446 Estand Way, Pleasant Hill, California 94523 (hereinafter Tut),
and Yet, Inc., a California corporation, 3060 Buena Vista Way, Berkeley,
California 94708 (hereinafter And Yet) and Martin H. Graham, 3060 Buena Vista
Way, Berkeley, California 94708 (hereinafter Graham) is made with respect to the
following facts:
A. Tut, And Yet and Graham entered into a Royalty Agreement dated June 1, 1992
concerning certain patent rights. An extension of Royalty Agreement was entered
into between Tut, And Yet and Graham having an effective date of June 1, 1995.
These Royalty Agreements are collectively referred to as the Prior Agreements;
B. Graham has assigned to And Yet his rights to the patents and patent
applications which are the subject of the Prior Agreements;
C. Tut intends to make an initial public offering (hereinafter IPO) of its
stock in the very near future;
D. In the event of an IPO, Tut wishes to make a lump sum payment for all its
royalty obligations under the Prior Agreements and And Yet is willing to accept
such payment as set forth in this Agreement; and
E. The parties to this Agreement wish to release each other from any and all
obligations owed to one another under the Prior Agreements.
NOW, THEREFORE, the parties agree as follows:
1. Subject to Paragraph 5, Tut shall pay to And Yet Two Million Five Hundred
Thousand ($2,500,000.00) Dollars within ten (10) business days from the date on
which Tut receives funds from its IPO (the "Closing Date") and shall notify
Graham by fax at (510) 848-1611 immediately upon the receipt of such funds.
2. In the event that Tut's IPO does not occur by November 30, 1998, any party
may terminate this Agreement at its option by giving written notice to the other
parties and in such event the Prior Agreements in their entirety shall continue
to remain in full force and effect.
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3. On the Closing Date the Prior Agreements shall be terminated and the parties
shall be relieved of any and all rights and obligations under the Prior
Agreements, including any obligations to make any additional royalty payments or
any other payments or to audit the books of Tut or any of its licensees.
4. Until the Closing Date the parties' obligations under the Prior Agreements,
including any obligations to make any additional royalty payments or any other
payments, shall continue in full force and effect.
5. On the Closing Date Tut shall pay to And Yet, in addition to the
$2,500,000.00 set forth in paragraph 1 above, all accrued but unpaid royalty
payments or other payments owing to And Yet under the Prior Agreements.
6. Except as hereinafter set forth, on the Closing Date And Yet and Graham
shall assign to Tut all of their right, title, and interest in all patents and
patent applications listed on the Schedule attached to this Agreement (including
all additional intellectual property relating solely to such patents and patent
applications) naming Graham or And Yet as an inventor or co-inventor and which
are covered by the Prior Agreements, as set forth in Exhibit A attached hereto.
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Effective the Closing Date, And Yet and Graham hereby confirm all prior
assignments of such patents and patent applications made to Tut under the Prior
Agreements.
a. Notwithstanding the foregoing, in regard to patent application Serial No.
09/024883, filed 2/17/98, And Yet and Graham shall assign only their interest,
and not any interest belonging to Howard Johnson.
b. In regard to patent application Serial No. 08/925205, filed 9/8/97, where
Hal Webber is the co-inventor with Graham, Tut shall cause Graham's name to
appear first on the patent when and if it is issued.
7. This Agreement is executed and delivered within the State of California and
its construction, interpretation, and performance shall be governed by the laws
of the State of California.
8. Effective on the Closing Date, this Agreement sets forth the entire
agreement and understanding between Tut, And Yet and Graham as to the subject
matter hereto and merges all prior discussions between them and neither party
shall be bound by any condition, definitions, warranties, understandings, or
representations with respect to such subject matter other than as expressly
provided in this Agreement or as duly set forth on a subsequent date in writing
and signed by the parties.
9. In consideration of the mutual covenants, agreements and promises set forth
herein, effective the Closing Date Tut, And Yet and Graham hereby fully and
forever
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release, acquit and discharge each other, their agents, employees,
attorneys, assigns, officers, directors, and stockholders from all causes of
action, liabilities, claims or demands of any nature whatsoever, whether known
or unknown, in law or in equity, which the parties now own, hereafter discover,
allege or may have had at any time heretofore owned, held or alleged against
each other and their respective officers, directors, stockholders, agents,
employees, attorneys and assigns with respect to any matter arising out of the
Prior Agreements or are connected to any events which form the basis for this
Agreement.
The parties hereto hereby waive the benefits of Section 1542 of the Civil
Code of California, which reads 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."
10. Any dispute under this Agreement shall be resolved by binding arbitration
in the San Francisco office of J.A.M.S./Endlspute with the prevailing party
entitled to recover his or its reasonable costs and reasonable attorneys' fees.
11. This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original, but all of which together shall constitute but one
instrument.
12. A facsimile copy of this Agreement and any signatures hereon shall be
considered for all purposes as originals.
Agreed to by:
/s/ Martin H. Graham
Date: _____________________________ ___________________________________
Martin H. Graham
AND YET, INC.
/s/ Martin H. Graham
Date: _____________________________ By: _____________________________
Martin H. Graham
/s/ Salvatore D'Auria
Date: _____________________________ ___________________________________
Salvatore D'Auria
TUT SYSTEMS, INC.
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__________________________________________________________________________
Consent of Spouse:
/s/ Selma Graham
Date: ____________________________ ______________________________
Selma Graham
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