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Affidavit, Release Waiver Of Claims

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Governing Law: California     Date: 3/15/2007
Industry: Software and Programming    

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Exhibit 10.37




     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:




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;








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;








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;








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;








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






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;




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;








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;








The right to exercise vested stock options granted to me under the Plan in the manner set forth in Exhibit A hereto; and








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.

     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,



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.



     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 required to effect those resignations, I shall execute such documentation as may be reasonably requested by the Company. The matters released include, but are not limited to, any claims under federal, state or local laws, including claims arising under the federal Age Discrimination in Employment Act or the Older Workers Benefit Protection Act, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1866, the Civil Rights Act of 1991, the Employee Retirement and Income Security Act of 1974 (“ERISA”), the Americans with Disabilities Act, the Worker Adjustment and Retraining Act and applicable regulations and the California Fair Employment and Housing Act or any similar state or local law, and any claims for attorneys’ fees and costs. The only exceptions are any claims I may have: (i) for unemployment or workers compensation; (ii) to enforce the terms of this Release against the Company; and (iii) with respect to obligations of the Company, if any, that are contemplated by their terms to survive my

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