AFFIDAVIT, RELEASE & WAIVER
OF CLAIMS
This Affidavit,
Release & Waiver of Claims (“Release”) is given to
OpenTV, Inc. (the “Company”) and its affiliates
in consideration of the Company’s agreement to provide me,
Scott Wornow, with the following as provided by my Retention
Agreement, dated March 30, 2005 (the “Retention
Agreement”), as modified by this Release, my Stock Option
Agreements as modified by the provisions of this Release, and as
otherwise agreed by me and the Company under the terms set forth
herein:
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1.
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Payment of my base salary, which is
$310,500.00, through the “Termination Date,” which
shall be April 1, 2007 for purposes of this Agreement, subject
to continuance thereof in accordance with paragraph 4
below;
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2.
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A
lump sum payment, on or before the fifth business day after the
Termination Date (or, if I have not returned this Release to the
Company by that date, within five days after I return a signed
Release to the Company), of my vacation time not used as of the
Termination Date to the extent that such vacation time has been
accrued through the Termination Date, calculated based upon my base
salary at the Termination Date, which, based on the information
available to the Company, will consist of 22.21 vacation days
resulting in an aggregate payment of $26,523.85;
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3.
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A
lump sum payment, on or before the fifth business day after the
Termination Date (or, if I have not returned this Release to the
Company by that date, within five days after I return a signed
Release to the Company), of all business expenses reimbursable to
the extent not theretofore paid, understanding that any business
expenses for which reimbursement has not been requested on or
before the day immediately preceding the Termination Date, will be
reimbursed to me in accordance with normal Company business
practices as in effect as of the Termination Date;
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4.
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Continuation of my base salary,
payable in accordance with normal Company payroll practices in
effect on the Termination Date, until, and including the payment
period ending on, September 30, 2007 (such date being referred
to as the “End Date”), understanding that the Company
will not deduct from my base salary for my healthcare coverage
during that period since I will be entitled to COBRA coverage that
I will pay directly, and for which I will be reimbursed in
accordance with paragraph 5 below. My base salary continuation
shall not be extended beyond the End Date for any reason, including
in the event of any Change in Control of the Company prior to that
date;
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5.
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For
the period beginning on the Termination Date and ending on the End
Date (or such earlier date as I receive alternative health coverage
with comparable coverage levels), reimbursement through a gross-up
of my base salary payments referred to in paragraph 4 above of the
full difference between (A) monthly COBRA payments actually
made by me for continued health benefits (which includes medical,
dental and vision coverage) during such period (consistent with the
level of health benefits to which I was entitled as of the
Termination Date) and (B) the amount I would have paid for
health coverage for myself and my dependents under the
Company’s health plan had I remained an employee of the
Company during such period (the difference between (A) and (B)
expected to be approximately $829.39 per month). I agree to provide
the Company with prompt notice
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of
the effective date of any alternative health coverage that has
comparable coverage levels as the Company’s plan. Prepayment
by the Company on or before the Termination Date, for the period
from the Termination Date through the period ending on the End
Date, of the full costs of my Life Insurance and Accidental Death
& Dismemberment Policies, so that such coverages, as in effect
as of the Termination Date, remain effective through the End Date,
understanding that such Policies are, thereafter,
“portable” in accordance with their respective
terms;
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6.
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Payment of your 2006 bonus, in cash,
in the amount of $108,675.00 on the earlier of (x) the date on
which 2006 bonus payments are made to rank and file employees of
the Company or (y) the Termination Date. I understand that I
will not be entitled to any discretionary bonus for
2007;
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7.
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Continued vesting of options granted
to me under the Plan (as defined in the Retention Agreement) in the
manner set forth in Exhibit A hereto;
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8.
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The
right to exercise vested stock options granted to me under the Plan
in the manner set forth in Exhibit A hereto; and
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9.
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The
opportunity to provide consulting services to the Company, to the
extent that I am available and the Company requests my services, as
contemplated in Article V below.
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All payments
referred to in the preceding Sections 1 through 9 of this
Article I, inclusive, will be made by the Company subject to
any and all applicable payroll deductions, including payment of
applicable withholding taxes. I understand that I am fully
responsible for any and all taxes that may be imposed on me
pursuant to Section 409A of the Internal Revenue Code of 1986,
as amended, in respect of any deferred compensation that I may be
deemed to receive hereunder.
I acknowledge that
effective from the day immediately succeeding the End Date, I shall
be responsible for the payment of any premiums associated with
continuation of my health insurance under the provisions of COBRA,
subject to the Company’s agreement to reimburse me for those
costs for the period, and in the manner, set forth in paragraph 5
above. The entitlement under COBRA shall not be extended in any way
by virtue of any terms of this Release.
I acknowledge that
I have been both encouraged and given the opportunity to discuss
this document with counsel of my own choosing.
I understand that
the consideration described in this Release includes various
benefits for which I am not eligible unless I elect to sign and
return to the Company, and I do not revoke, this Release. I
understand that I have forty-five days (45) days from receipt
of this Release to consider whether I wish to accept these
additional benefits in exchange for executing this Release. I
understand that I may sign this document sooner, and if I do so, I
acknowledge with my signature that the decision to sign was mine
and mine alone and that, as a result, I voluntarily have waived the
45-day consideration period referred to in the preceding sentence.
I also understand that even if I do sign and return this Release to
the Company, I may change my mind and revoke this Release and
forego the Release consideration as described in this
Release,
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provided I notify Human Resources in
writing via confidential fax at (415) 962-5362 within seven
(7) days of my signing and returning this Release to the
Company that I wish to revoke this Release and that I no longer
want any of the benefits to referred to in this Release which would
not otherwise be expressly provided under the terms of my Retention
Agreement in connection with my termination.
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In consideration
of the Company entering into this Release and the consideration
provided to me hereunder, I, on behalf of my heirs, spouse and
assigns, hereby completely release and forever discharge the
Company, together with its past and present affiliates, agents,
officers, directors, shareholders, employees, attorneys, insurers,
successors and assigns (collectively referred to as the
“Company Releasees”, which term shall include, without
limitation and for the avoidance of doubt, OpenTV Corp. and OpenTV,
Inc.), from any and all claims, of any and every kind, nature and
character, known or unknown, foreseen or unforeseen, based on any
act or omission occurring prior to the date of my signing this
Release, including but not limited to any claims arising out of my
offer of employment, my employment or termination of my employment
with any Company Releasee, and, without limitation, any claims for
fraud, misrepresentation, breach of fiduciary duty and breach of
duty under applicable state corporate law. Subject to the terms of
this Agreement, I expressly agree and consent to the termination of
my employment effective as of the Termination Date . This
Release shall also constitute my resignation, effective
immediately, from all officer and director positions that I hold
with the Company or any of its subsidiaries or affiliates; I
understand that if any additional documentation is
requir
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