Settlement Agreement - Carreker-Antinori Inc. and Lawrence D. Duckworth
SETTLEMENT AGREEMENT
This Settlement Agreement (this "Agreement"), dated as of January 29,
1998, is between Lawrence D. Duckworth, an individual ("Mr. Duckworth"), and
Carreker-Antinori, Inc., a Texas corporation (the "Company").
RECITALS
Mr. Duckworth was formerly employed by the Company as the president of its
Software Group, and as a member of its board of directors.
Mr. Duckworth subsequently resigned from the Company's employment and from
all other positions with the Company.
Mr. Duckworth and the Company desire to fully and finally settle certain
claims, to avoid continued or future disputes and controversies regarding those
claims, to provide peace of mind for both parties, and to eliminate and forego
the nuisance of possible litigation and the financial costs of such litigation.
In consideration of the foregoing recitals and other good and valuable
consideration, the receipt and sufficiency of which the parties acknowledge,
the parties agree as follows:
1. CANCELLATION OF STOCK OPTIONS. Outstanding stock options in favor of
Mr. Duckworth with respect to 33,300 shares of Class B Non-Voting Common Stock
of the Company, which options were granted on January 31, 1997, are hereby
cancelled, and the related stock option agreements, also dated January 31,
1997, are hereby terminated.
2. RECIPROCAL RELEASES. In consideration of Mr. Duckworth's agreements
made in this Agreement, the Company knowingly, voluntarily, and intentionally
agrees to, and does, settle, release, waive, and discharge Mr. Duckworth and
his past, present and future affiliates, assigns, accountants, attorneys,
consultants and other representatives (collectively, the "Duckworth Released
Parties"), from any and all claims and causes of action, whether legal,
equitable, or administrative, whether presently known or not known to the
Company, and whether fixed or contingent, that the Company and/or its
successors, assigns and/or any person on its behalf now holds, may ever hold or
has held, known or unknown and may have or claim to have now or in the future
against any one or more of the Duckworth Released Parties, concerning any and
all matters arising up through the date of this Agreement; PROVIDED, HOWEVER,
that the foregoing shall not constitute a settlement, release, waiver, or
discharge of the Company's rights or obligations under (1) this Agreement, (2)
that certain separation letter agreement dated August 4, 1997 between Mr.
Duckworth and the Company (as the same is modified by this Agreement), (3) that
certain Non-Competition Agreement dated January 31, 1997 between Mr. Duckworth
and the Company, (4) that certain Employee Confidentiality Agreement dated
January 31, 1997 between Mr. Duckworth and the Company, and (5) that certain
Shareholders Agreement dated as of January 31, 1997 among the Company, Mr.
Duckworth and others (the "Shareholders
<PAGE>
Agreement"), each of which shall survive this Agreement in accordance with
its terms.
In consideration of the Company's agreements made in this Agreement, Mr.
Duckworth knowingly, voluntarily, and intentionally agrees to, and does,
settle, release, waive, and discharge the Company, its predecessors, successors
and past, present and future affiliates, employees, officers, directors,
shareholders, partners, assigns, accountants, attorneys, consultants, other
representatives, employee retirement, health and welfare benefit plans and the
fiduciaries thereof and agents (collectively, the "Company Released Parties"),
from any and all claims and causes of action, whether legal, equitable, or
administrative, whether presently known or not known to Mr. Duckworth, and
whether fixed or contingent, that Mr. Duckworth and/or his spouse, dependents,
heirs, successors, and assigns and/or any person on his behalf now holds, may
ever hold or has held, known or unknown and may have or claim to have now or in
the future against any one or more of the Company Released Parties, concerning
any and all matters arising up through the date of this Agreement including,
without limitation:
A. claims arising from Mr. Duckworth's employment by the Company, including
under his employment agreement with the Company;
B. claims arising from Mr. Duckworth's resignation and separation from the
Company;
C. claims for Mr. Duckworth's salary, back pay, future pay, vacation pay,
sick pay, severance pay, bonuses, all other compensation, past and future
employee retirement, health and welfare benefits, and all other employee
benefits;
D. claims for Mr. Duckworth's actual damages, compensatory damages, punitive
damages, liquidated and unliquidated damages, attorneys' fees, costs, and
expenses;
E. claims for all other injuries, losses, liabilities, or damages of any kind
whatsoever allegedly caused to or suffered by Mr. Duckworth as a result of
any alleged actions or inactions of the Company and/or the Company Released
Parties;
F. claims which Mr. Duckworth raised or could have raised in a charge filed
with the Equal Employment Opportunity Commission;
G. claims which Mr. Duckworth asserted or could have asserted arising under
federal, state or local law, including, without limitation:
1. Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
Section 2000 ET SEQ., and other civil rights laws;
2. The Texas Commission on Human Rights Act, Tex. Labor Code Ann.
Section 21.001 ET SEQ.;
3. The Americans with Disabilities Act, 42 U.S.C. Section 12101 ET
SEQ.;
4. The Age Discrimination in Employment Act, as amended;
SETTLEMENT AGREEMENT - Page 2
<PAGE>
5. The Equal Pay Act, 29 U.S.C. Section 206(d);
6. Chapter 451 of the Texas Workers' Compensation Act, Tex. Labor
Code Ann. Section Section 451.001-451.003, Article 8307c of the
Texas Revised Civil Statutes, Tex. Rev. Civ. Stat. Ann. art.
8307c, and any other states' laws (including, without limitation,
the laws of the state of Georgia);
7. The Family and Medical Leave Act;
8. The Employee Retirement Income Security Act, 29 U.S.C.
Section 1001 ET SEQ.; and
9. All wrongful discharge claims, all tort, intentional tort, and
contract claims.
PROVIDED, HOWEVER, that the foregoing shall not constitute a settlement,
release, waiver, or discharge of Mr. Duckworth's rights or obligations under
(1) this Agreement, (2) that certain separation letter agreement dated August
4, 1997 between Mr. Duckworth and the Company (as the same is modified by this
Agreement), (3) that certain Non-Competition Agreement dated January 31, 1997
between Mr. Duckworth and the Company, (4) that certain Employee
Confidentiality Agreement dated January 31, 1997 between Mr. Duckworth and the
Company and (5) the Shareholders Agreement, each of which shall survive this
Agreement in accordance with its terms.
3. EMPLOYMENT REFERENCES. The Company will provide the following
information concerning Mr. Duckworth in response to employment references: (a)
dates of employment; (b) positions held; (c) that during his employment by the
Company he exhibited a high level of energy, integrity and dedication to his
work; (d) that, at Antinori Software, Inc., he played a crucial role in the
negotiation and successful completion of the merger, (e) that during and after
the merger, he had been very valuable in fostering cooperation among the merged
companies and integrating the two organizations, (f) that he resigned; (g) that
he handled the post-resignation leadership transition in a positive manner; and
(h) such other information as he and the Company mutually agree, in writing, to
disclose.
4. NO ADMISSION OF WRONG-DOING. The Company acknowledges that Mr.
Duckworth's entry into this Agreement does not, in any way, constitute an
admission of improprieties or other wrong-doing.
5. FULL DISCLOSURE OF AGREEMENTS WITH RONALD R. ANTINORI. Mr. Duckworth
represents to the Company that there are no agreements, arrangements or
understandings between Ronald R. Antinori and Larry Duckworth, or between
Ronald R. Antinori and/or his affiliates, considered as one party in interest,
and Mr. Duckworth and/or his affiliates, considered as another party in
interest, in both cases whether formal or informal, oral or in writing, except
as disclosed to the Company previously, in writing, by Mr. Duckworth and
attached to this Agreement as ATTACHMENT A.
6. SURVIVAL. This Agreement, together with the agreements referenced in
the provisos of Section 2 above as not being settled, waived, released or
discharged, contains all of the terms, provisions, and understandings between
Mr. Duckworth and the Company. No modification of
SETTLEMENT AGREEMENT - Page 3
<PAGE>
this Agreement can be made except in writing and signed by both parties.
7. CONFIDENTIALITY. Mr. Duckworth and the Company agree to keep the
terms of this Agreement, as well that a settlement was achieved, wholly and
completely confidential, excluding only any disclosure (a) required by law
(including disclosure obligations under applicable securities laws) and/or (b)
by a party to its bankers (including investment bankers), accountants and
counsel. Further, except as provided in Section 3, the parties agree to not
disclose the facts, circumstances, and allegations that led to this Agreement,
to any person or persons, excluding only any disclosure (a) required by law
(including disclosure obligations under applicable securities laws) and/or (b)
by a party to its bankers (including investment bankers), accountants and
counsel.
8. MISCELLANEOUS. This Agreement is binding on the parties and their
representatives, heirs, and successors and assigns. This Agreement shall be
governed by and interpreted under the laws of the State of Texas, without
regard to conflict of laws. Mr. Duckworth acknowledges that the Company makes
no representation whatsoever concerning the tax consequences, if any, of this
Agreement to him. Mr. Duckworth agrees that he is solely responsible for
payment of all of his federal, state, and local taxes, interest and penalties,
if any, which are or may become due on account of this Agreement and agrees to
indemnify, defend and hold harmless the Company from any liability for taxes
that Mr. Duckworth owes or will owe on account of this Agreement. Each party
represents and warrants to the other party that no claims settled, released,
waived or discharged herein have been previously conveyed, assigned, or
transferred in any manner, whether in whole or in part, to any person, entity,
or other third party. Each party represents to the other that such party is
relying on its or his, as applicable, own judgment in entering into this
Agreement, and is not relying (and has not relied) on any statement or
representation, not expressly set forth herein, of such other party (or any
agent or affiliate of such other party). Mr. Duckworth expressly represents
that he is competent and authorized to release and/or waive any claim he may
have against the Company. If any portion of this Agreement is deemed
unenforceable, void, voidable, or of no force and effect, then no other portion
will be thereby affected, and the remainder of this Agreement will continue in
full force and effect. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument; but in pleading or
proving this Agreement, or any provision hereof, it shall not be necessary to
produce or introduce any more than one of such counterparts. MR. DUCKWORTH
ACKNOWLEDGES AND AGREES THAT HE HAS THE RIGHT TO DISCUSS ALL ASPECTS OF THIS
AGREEMENT WITH A PRIVATE ATTORNEY, HAS BEEN ENCOURAGED TO DO SO BY THE COMPANY,
AND HAS DONE SO TO THE EXTENT HE DESIRES. MR. DUCKWORTH REPRESENTS AND AGREES
THAT HE HAS THOROUGHLY AND CAREFULLY READ THIS AGREEMENT IN ITS ENTIRETY, THAT
HE HAS HAD A REASONABLE TIME TO CONSIDER ITS TERMS, THAT HE FULLY UNDERSTANDS
ALL OF ITS TERMS, AND THAT HE HAS NOT RELIED UPON ANY REPRESENTATIONS OR
STATEMENTS, WHETHER WRITTEN OR ORAL, NOT SET FORTH IN THIS AGREEMENT.
SETTLEMENT AGREEMENT - Page 4
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first written above.
CARREKER-ANTINORI, INC.
By: /s/ J.D. Carreker
J.D. Carreker
Chief Executive Officer
/s/ Lawrence D. Duckworth
LAWRENCE D. DUCKWORTH
Acknowledged as of the date
first written above.
/s/ Ronald R. Antinori
RONALD R. ANTINORI
SETTLEMENT AGREEMENT - Page 5
<PAGE>
ATTACHMENT A
- Letter of Agreement dated October 24, 1995, as amended by that certain
Amendment to Letter Agreement dated January 31, 1997 among Antinori Software,
Inc., Mr. Duckworth and Ronald R. Antinori.
- Mr. Duckworth and Ronald R. Antinori have agreed that Mr. Duckworth's option
to purchase shares of Company stock held by Mr. Antinori, further described in
the Letter of Agreement and the Amendment to Letter Agreement referenced
immediately above, is cancelled to the extent of 24,444 of such shares (being
approximately one-half of the 48,889 total shares subject to such option, which
total has been reduced pursuant to the adjustment procedure described in
Section 3 of such Amendment to Letter Agreement) and that Mr. Duckworth will
exercise his option as to such 24,445 shares at a price of $4.3816 per share
for a total of $107,108.02 on or before March 31, 1998.
- Release Agreement dated on or about the date hereof between Mr. Duckworth and
Mr. Antinori.
- The Shareholders Agreement.
- None other.
Acknowledged as of the date
first written above.
/s/ Ronald R. Antinori
RONALD R. ANTINORI
SETTLEMENT AGREEMENT - Page 6