AGREEMENT
This Agreement (the "Agreement") dated as of June 30, 1997 between Xxxxxx X.
Xxxx and Astea International Inc., a Delaware corporation (the "Company").
WHEREAS, Xx. Xxxx and the Company entered into that certain Employment and
Noncompetition Agreement dated March 1, 1996 (the "Employment Agreement") to
which Bendata, Inc. ("Bendata"), a Colorado corporation and wholly-owned
subsidiary of the Company, is also a party.
WHEREAS, Bendata and the Company entered into the Employment Agreement with Xx.
Xxxx in connection with the Company's purchase of all of the outstanding capital
stock and equity interests of Bendata and certain other entities affiliated
with Bendata from Xx. Xxxx and all of the other holders thereof (the
"Shareholders") pursuant to an Agreement and Plan of Merger dated February 27,
1996 (the "Merger Agreement") among the Company, BDI Acquisition Corp., Bendata,
Bendata (UK) Limited LLC, Xx. Xxxx, Xxxxxxx Xxxxx and Xxxxx Xxxxxxx;
WHEREAS, as consideration for the Company's purchase of Bendata, the Company
issued an aggregate of 1,500,000 shares (the "Shares") of common stock, $.01 par
value per share, of the Company (the "Common Stock") to the Shareholders, of
which Xx. Xxxx received 1,366,270 Shares;
WHEREAS, pursuant to a Registration Rights Agreement dated as of February 26,
1996 among the Company, Xx. Xxxx and others (the "Registration Agreement"), the
Company has agreed to register the Shares received by Xx. Xxxx for resale under
the Securities Act of 1933, as amended, and a registration statement filed
pursuant to the Registration Agreement is currently effective;
WHEREAS, Xx. Xxxx has asserted and continues to assert various claims against
the Company including those for breach of the representations and warranties in
the Merger Agreement (the "Claims");
WHEREAS, the Company has denied and continues to deny Xx. Xxxx' Claims;
WHEREAS, to avoid the expense and distraction of litigation over Xx. Xxxx'
Claims, each of the Company, Bendata and Xx. Xxxx have agreed to compromise and
settle such Claims, and to modify certain of the terms of the Employment
Agreement;
NOW, THEREFORE, in consideration of the premises and in exchange for the
promises made herein and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Bendata, the Company and Xx.
Xxxx agree as follows:
1. Consulting Agreement. The Company, Bendata, and Xx. Xxxx shall
immediately execute and enter into a consulting and development agreement with
Xx. Xxxx in the form attached hereto as Exhibit A (the "Consulting Agreement").
2. Additional Consideration on Sales. The Company will pay Xx. Xxxx $1.00
per share in cash for each Share sold by Xx. Xxxx between July 1, 1997 and
September 30, 1997 (the "Termination Date"), up to a maximum of $300,000. The
amount owed by the Company will be due and payable upon written notification by
Xx. Xxxx of the number of Shares sold made on the earlier of two business days
after the date on which Xx. Xxxx has sold at least 300,000 Shares or the
Termination Date.
3. Cash Payment. The Company has executed and delivered to Xx. Xxxx its
promissory note, in the form of Exhibit B, evidencing the Company's obligation
to pay Xx. Xxxx an aggregate of One Million Dollars ($1,000,000), payable
without interest in twenty (20) equal quarterly installments over a period of
five (5) years commencing on the date of this Agreement, or at such earlier time
or times as determined by the Company in its sole discretion, the first
installment of which shall be paid concurrent with the execution of this
Agreement.
4. Option Grant. The Company hereby grants to Xx. Xxxx a non-qualified
option to purchase 90,000 shares of Common Stock with a duration of ten years,
substantially in the form attached hereto as Exhibit C (the "Option") at an
exercise price equal to the closing price of the Common Stock on the Nasdaq
National Market on the last trading day prior to the date of this Agreement.
The Option will be immediately and fully exercisable.
5. Registration Statement. The Company agrees promptly to file and maintain
the effectiveness of a registration statement on Form S-8 to allow Xx. Xxxx to
sell the shares of Common Stock obtainable upon exercise of the Option.
6. Legal Fees and Expenses. The Company herewith reimburses to Xx. Xxxx a
total of $20,000.00 to defray a portion of the legal fees and expenses that he
has incurred in connection with the investigation and settlement of his claims
by delivering to him a check in that amount.
7. Nature of Consideration. The Company acknowledges that the payment of
sums of money pursuant to paragraphs 2, 3 and 6 of this Agreement, and the grant
of the Option pursuant to paragraph 4 of this Agreement are in settlement of
claims and not compensation to Xx. Xxxx. The Company agrees not to issue an IRS
Form W-2 to Xx. Xxxx indicating that any portion of such consideration is
compensation to Xx. Xxxx. The Company agrees to issue an IRS Form 1099-MISC
indicating that the consideration is "other income" (box 3).
8. Release by Xx. Xxxx. Effective upon the execution and delivery of this
Agreement by the Company, Xx. Xxxx does hereby, for himself and his heirs,
executors, agents, representatives, affiliated entities, successors and assigns,
remise, release, acquit and forever discharge the Company, Bendata, and their
respective stockholders, subsidiaries, affiliates, directors, officers,
employees, agents, predecessors, successors and assigns, of and from any and all
manner of action and actions, cause and causes of action, suits, debts,
controversies, damages, judgments, executions, claims and demands whatsoever, in
law or in equity, against the Company, Bendata, or any of their respective
affiliates as hereinabove enumerated, which Xx. Xxxx ever had, now has or which
he, or persons related to him as hereinabove enumerated, can, shall or may have,
whether or not now known, for, upon or by reason of or in any way relating to
the Merger Agreement, the Company's purchase of Bendata from Xx. Xxxx and the
other Shareholders, or the issuance of the Company's securities to Xx. Xxxx at
any time prior to the date of this Agreement; provided however, that the
foregoing release shall not be construed to release claims arising under this
Agreement or the Registration Agreement, or future obligations of the Company
under the Employment Agreement or the Consulting Agreement.
9. Release by the Company. Effective upon the execution and delivery of this
Agreement by Xx. Xxxx, the Company and Bendata, or themselves and their
respective stockholders, subsidiaries, affiliates, directors, officers,
employees, agents, predecessors, successors and assigns, do hereby release,
remise and acquit and forever discharge Xx. Xxxx, his heirs, executors,
successors and assigns, of and from any and all manner of action and actions,
cause and causes of action, suits, debts, controversies, damages, judgments,
executions, claims and demands whatsoever, in law or in equity, against Xx. Xxxx
or any person related to him as hereinabove enumerated, which the Company,
Bendata, or any of their respective affiliates as hereinabove enumerated, ever
had, now has or which it or any of its respective affiliates as hereinabove
enumerated, can, shall or may have, whether or not known, for, upon or by reason
of or in any way related to the Merger Agreement, the Company's purchase of
Bendata from Xx. Xxxx and the other Shareholders, or the issuance of the
Company's securities to Xx. Xxxx at any time prior to the date of this
Agreement; provided however, that the foregoing release shall not be construed
to release claims arising under this Agreement or the Registration Agreement, or
future obligations of Xx. Xxxx under the Employment Agreement or the Consulting
Agreement.
10. Representations and Warranties.
(a) Xx. Xxxx has such knowledge and experience in financial and business
matters and in making investment decisions of this type that he is capable of
evaluating the merits and risks of an investment in the Company and of making an
informed investment decision.
(b) The Company represents and warrants to Xx. Xxxx that the Company has taken
all action that may be required by its corporate charter, by-laws and all other
applicable law to authorize execution, delivery and performance of this
Agreement.
(c) The Company and Xx. Xxxx represent and warrant to each other that this
Agreement has been duly executed and delivered by such party and constitutes the
legal, valid and binding obligation of such party, enforceable against such
party in accordance with its terms, and that neither has assigned, transferred,
or hypothecated or pledged any portion of the claims subject to this Agreement
to any third party.
11. Amendment to Employment Agreement. Section 5(b) of the Employment
Agreement is hereby clarified and, to the extent necessary, modified to permit
Xx. Xxxx to (a) be employed by or consult with, and be an officer, director and
stockholder of, CoreTech Consulting Group, Inc. (or any of its affiliates); (b)
provide consulting, training and event services, and certification programs,
notwithstanding the fact that such activities may involve businesses to which
Bendata's products are sold; provided, however, Xx. Xxxx will not sell or
intentionally assist others in selling products that are competitive with any of
the products Bendata is selling or announced that it will be selling as of the
date of this Agreement; and (c) permit Xx. Xxxx to serve actively in the affairs
of any professional association or non-profit organization established to
further the professional certification of help desk professionals.
12. Miscellaneous.
(a) Except to the extent expressly amended hereby, the Employment, Merger and
Registration Agreements shall not be altered by this Agreement. Except as
otherwise set forth in the Employment, Merger and Registration Agreements and
the attachments thereto, this Agreement constitutes the entire understanding of
the parties with respect to the subject matter of this Agreement and supersedes
all prior agreements and understandings, written or oral, with respect to the
subject matter of this Agreement. To the extent consistent with this Agreement,
the Employment, Merger and Registration Agreements and the attachments thereto
are reaffirmed hereby.
(b) Except as otherwise contemplated herein or required by applicable law or
regulation, or by the order of a tribunal having appropriate jurisdiction, and
only to the extent so contemplated or required, the Company and Xx. Xxxx shall
not disclose the contents or existence of this Agreement to any other person.
The Company consents to the filing by Xx. Xxxx of an amendment to his existing
statement on Schedule 13D which will include a summary of this Agreement and to
which a copy of this Agreement will be attached as an exhibit.
(c) From and after the date of this Agreement, upon the reasonable request of
any party hereto, the other party shall execute and deliver such instruments,
documents and other writings as may be reasonably necessary or desirable to
confirm and carry out and effectuate fully the intent and purposes of this
Agreement.
(d) This Agreement will be governed by and interpreted in accordance with the
internal laws of the State of Delaware without regard to conflict-of-law
principles.
(e) This Agreement may be executed by facsimile and in any number of
counterparts, each of which shall be deemed an original for all purposes.
**************
IN WITNESS WHEREOF, the parties have executed this Agreement of this 30th day of
June, 1997.
ASTEA INTERNATIONAL INC.
By:
Xxxx X. Xxxxxxxx
Chief Executive Officer
BENDATA, INC.
By:
Xxxxx Xxxxx
President
Xxxxxx X. Xxxx
