EX-10.32



 








EXHIBIT 10.32




AFFIDAVIT, RELEASE & WAIVER OF CLAIMS




ARTICLE I




CONSIDERATION




          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, Mark
Allen, with the following, as provided, by my Employment Agreement, dated July 9, 2004 (the
“Employment 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 :





	 	1.	 	Payment of my base salary, which is $425,000, through the Termination Date,” as
hereafter defined. The “Termination Date” for purposes of this Release shall be the later
of (i) April 5, 2006 or (ii) the fifth business day after written notice is delivered (a)
to me by the Company or (b) by me to the Company, in each case, in the discretion of the
Company or me;
	 
	 	2.	 	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;
	 
	 	3.	 	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;
	 
	 	4.	 	Continuation of my base salary, payable in accordance with normal Company payroll
practices in effect on the Termination Date, until the first anniversary of the Termination
Date (such anniversary date being referred to as the “Anniversary Date”); provided,
however, that, notwithstanding the foregoing, on March 15, 2007, the Company will
pay to me, in a lump sum payment, all remaining payments of base salary that would
otherwise be payable to me after March 15, 2007 through the Anniversary Date, so that, as
of March 15, 2007, (i) I will have received all remaining payments of base salary that
would otherwise have been due to me through the Anniversary Date, (ii) I will no longer be
entitled to any additional payments of base salary from and after March 15, 2007, and (iii)
the Company will have no further obligation to make any of the continuation payments
referred to in this Section 4 of Article I. My base salary continuation shall not be
extended beyond the Anniversary Date for any reason, including in the event of any Change
in Control of the Company prior to that date;





					
	 
	 	 	 	 






 









 






	 	5.	 	Consideration for my annual discretionary bonus for 2005 as though I were still
employed by the Company on the date of payment (in a manner consistent with any review or
evaluation that would have been applicable to me had I remained an employee of the
Company), whatever that date may be, notwithstanding the termination of my employment prior
to that payment date. I understand that I will not be entitled to any discretionary bonus
for 2006;
	 
	 	6.	 	Continued vesting of options granted to me under the Plan (as defined in the Employment
Agreement) in the manner set forth in Exhibit A hereto;
	 
	 	7.	 	The right to exercise vested stock options granted to me under the Plan in the manner
set forth in Exhibit A hereto; and
	 
	 	8.	 	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 8 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 Termination Date, I shall be responsible for the payment
of any premiums associated with continuation of my health insurance under the provisions of COBRA.
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 Employment Agreement in connection with my termination.




					
	 
	 	 	 	 






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ARTICLE II




RELEASES




          In consideration of the Company’s 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. I expressly agree and consent to the termination of my
employment effective as of the Termination Date. 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 Employment Agreement and
Stock Option Agreements, and which are not otherwise superseded by the terms of this Release.




          I understand and agree that this Release extinguishes all claims, whether known or unknown,
foreseen or unforeseen, except for those claims expressly described above. I expressly waive any
rights or benefits under Section 1542 of the California Civil Code, or any similar state or local
law. California Civil Code Section 1542 provides 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.”



          I fully understand that, if any fact with respect to any matter covered by this Release is
found hereafter to be other than or different from the facts now believed by me to be true, I
expressly accept and assume that this Release shall be and remain effective, notwithstanding such
difference in the facts.




          I represent that I have no complaint, charge, grievance, lawsuit, or any other action of any
kind pending against any Company Releasee. I promise that neither I nor anyone acting on my behalf
will assert or file any complaint, charge, grievance, lawsuit, or action of any kind against




					
	 
	 	 	 	 	 	 	 	 






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any Company Releasee, which is based in any way, in whole or in part, on facts or
circumstances arising, or alleged to have arisen, on or before the last date of execution of this
document. I further promise that if any agency, person, or court, on my behalf, assumes
jurisdiction over any such complaint, charge or grievance naming me as a plaintiff, complainant,
charging party or grievant against any Company Releasee, I will explain to the agency, person, or
court the effect of this Release and request that the complaint, charge, or grievance be dismissed.




          I acknowledge that I will continue to be bound by any obligations under any confidential or
proprietary information, inventions assignment or non-disclosure agreement or other similar
agreement that I have signed during my employment, including those provisions set forth in my
Employment Agreement, which remain effective notwithstanding this Release.




          In consideration of my release as set forth above, the Company hereby completely releases and
forever discharges me from any and all claims, of any and every kind, nature and character, based
on any act or omission occurring prior to the date of my signing this Release, that are, in each
such case, known to the Company as of the date of this Release. The Company represents that it is
not aware of any known claims that it may have against me as of the date of this Release.




ARTICLE III




COMPANY PROPERTY




          As of the date of this Release, I confirm that I have returned to the Company any and all
confidential information (in whatever medium recorded), including all copies, reproductions,
compilations, summaries, analyses, or other documents containing or reflecting my or other Company
representatives’ use of any confidential information, as well as all Company property, including
without limitation, all computers, cell phones, pda’s, Blackberrys or other equipment or devices,
all files and records, regardless of the media and all copies thereof, except only files of a
personal nature, such as employment agreements, benefits information, option agreements, etc., keys
or entry cards, and any other property of any kind whatsoever which is owned by the Company, except
(i) for such files and property that I have been specifically authorized by the Chief Executive
Officer to retain (provided that I will promptly return any of these files and property upon
request) and (ii) that I have purchased my computer and miscellaneous other items as agreed by the
Chief Executive Officer. Notwithstanding the return or of the confidential information, I shall
continue to be bound by the obligations of confidentiality contained in my Employment Agreement. I
further represent that I have not recreated or delivered to anyone else any confidential
information and that I will not recreate or deliver to anyone else any confidential information,
and that I have not used, nor will I use, any confidential information for the benefit of myself,
any future employer, or any other third party. If, and to the extent, that I perform consulting
services for the Company, I understand that I may receive confidential information regarding the
Company, and I will continue to hold that confidential information in a manner consistent with the
manner in which I held confidential information while an employee of the Company.




					
	 
	 	 	 	 	 	 	 	 






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ARTICLE IV




NONDISPARAGEMENT AND DESTRUCTIVE ACTS




          I agree not to impugn the business of the Company and its affiliates, including use of
disparaging or defamatory statements toward the Company and its affiliates, or their respective
past or present officers, directors, employees, consultants and advisors. I will not interfere
with the Company’s relationship with its prospective or current customers, suppliers or partners in
any way that would be detrimental to the Company, nor cause any services to be delayed.




          I acknowledge that I have not committed nor will I commit, directly or indirectly, any
destructive action against the Company and its affiliates or the property of the Company and its
affiliates, including, but not limited to, gaining or allowing unauthorized access to or
introducing viruses or bugs into their products, computer systems or networks.




ARTICLE V




CONSULTING ARRANGEMENTS




          I understand that the Company may request that I consult on various matters after the
Termination Date, but that neither the Company nor I have any obligation to undertake such a
relationship or to continue any such relationship after it has commenced. If the Company and I
mutually agree to retain my services as a consultant, I agree that my initial rate for these
services will be $250 per hour and that I will be reimbursed for all reasonable business expenses
that I may incur in connection with providing those services. If I propose to change the hourly
rate for my consulting services, I will provide the Company with 30 days prior written notice
thereof. I will provide reasonable documentation to the Company to support any fees or expenses
that are owed to me.




ARTICLE VI




MISCELLANEOUS




          This Release constitutes the entire agreement between the Company and me with respect to any
matters referred to in this Release.




          This Release supersedes any and all of the other agreements between the Company and me, except
for continuing obligations under my Employee Proprietary Information and Inventions Agreement,
dated as of March 25, 2004 (the “Employee Inventions Agreement”). The Company confirms
that my termination is being effected without cause, and that the non-competition provisions set
forth in my Employment Agreement and Stock Option Agreements are, therefore, not applicable or
effective. In the event of any conflict between the terms of this Release and my Employment
Agreement or Stock Option Agreements, the terms of this Release shall control and supersede the
similar provisions set forth in my Employment Agreement and Stock Option Agreements.




					
	 
	 	 	 	 	 	 	 	 






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          No other consideration, agreements, representations, oral statements, understandings or course
of conduct which are not expressly set forth in this Release should be implied or are binding. I
am not relying upon any other agreement, representation, statement, omission, understanding or
course of conduct which is not expressly set forth in this Release. I understand and agree that
this Release shall not be deemed or construed at any time or for any purposes as an admission of
any liability or wrongdoing by either myself or any Company Releasee. I also agree that to the
extent that any term, condition or provision of this Release is held to be invalid, illegal or
otherwise unenforceable under applicable law, then such term, condition or provision shall be
deemed amended only to the extent necessary to render such term, condition or provision enforceable
under applicable law, preserving to the fullest extent possible the intent and agreements of the
parties set forth herein; in the event that such term, condition or provision cannot be so amended
as to be enforceable under applicable law, then such term, condition or provision shall be deemed
excluded from this Release and the other terms, conditions and provisions hereof shall remain in
full force and effect as if such unenforceable term, condition or provision had not been included
herein.




          The terms and conditions of this Release shall be interpreted and construed in accordance with
the internal laws of the State of California, without regard to the principles of the conflict of
laws thereof. The terms and conditions of this Release shall inure to the benefit of and be
binding upon the respective successors and assigns of the Company.




          I have read this Release and understand all of its terms. I further acknowledge and agree
that this Release is executed voluntarily and with full knowledge of its legal significance. I
also understand and agree that if any suit is brought to enforce the provisions of this Release,
the prevailing party shall be entitled to its costs, expenses, and attorneys’ fees as well as any
and all other remedies specifically authorized under the law.




[Remainder of Page Intentionally Left Blank]




					
	 
	 	 	 	 
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EMPLOYEE’S ACCEPTANCE OF RELEASE




          I HAVE CAREFULLY READ THE FOREGOING AND UNDERSTAND, APPROVE AND VOLUNTARILY AGREE TO THE TERMS
OF THE RELEASE IN EXCHANGE FOR THE ADDITIONAL BENEFITS PROVIDED FOR HEREIN TO WHICH I WOULD
OTHERWISE NOT BE ENTITLED.




	 	 	 	 	 
	 	 	 
	Dated: April 5, 2006 	/s/ Mark Allen
 	 
	 	MARK ALLEN 	 
	 	 	 
	 
	 	OPENTV, INC.

 	 
	Dated: April 5, 2006 	By:  	/s/ James A. Chiddix
 	 
	 	 	Name:  	James A. Chiddix 	 
	 	 	Title:  	Chief Executive Officer 	 
	 



					
	 
	 	 	 	 
	 
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ATTACHMENT 1




CALIFORNIA LABOR CODE SECTION 2870




EMPLOYMENT AGREEMENTS, ASSIGNMENT OF RIGHTS



California Labor Code § 2870. Invention on Own Time — Exemption from Agreement.





	 	(a)	 	Any provision in an employment agreement which provides that an employee shall
assign, or offer to assign, any of his or her rights in an invention to his or her
employer shall not apply to an invention that the employee developed entirely on his or
her own time without using the employer’s equipment, supplies, facilities, or trade
secret information except for those inventions that either:






	 	(1)	 	Relate at the time of conception or reduction to practice of
the invention to the employer’s business, or actual or demonstrably anticipated
research or development of the employer.
	 
	 	(2)	 	Result from any work performed by the employee for the
employer.






	 	(b)	 	To the extent a provision in an employment agreement purports to require an employee to assign
an invention otherwise excluded from being required to be assigned under subdivision (a), the
provision is against the public policy of this state and is unenforceable.





					
	 
	 	 	 	 






 









 





Exhibit A




Stock Option Vesting and Exercise



Notwithstanding anything to the contrary contained in each of the Stock Option Agreements
governing the stock options referred to below, the vesting term (and the period through which
vesting shall continue) and exercise period for the option grants to Mr. Allen identified in the
table below shall be modified (and the relevant Stock Option Agreements shall be deemed so modified
and amended, without further action, to reflect such modifications) as follows:



AD = Anniversary Date, as defined in the Release

AD2 = the second Anniversary Date of the Termination Date




	 	 	 	 	 	 	 	 	 	 	 	 	 
	Option Grant Date

	 	Number of Options
	 	End of Vesting Term
(end date through
which options will
continue to vest,
unless earlier
vested in
accordance with
existing schedule)
	 	Exercise Price
	 	Exercise Period
(date through which
vested options may
be exercised after
end of vesting
term)
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	June 3, 2003

	 	 	12,500	 	 	AD- currently vested
	 	$	1.78	 	 	December 31, 2007
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	12,500	 	 	AD
	 	 	 	 	 	December 31, 2007
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	12,500	 	 	AD2
	 	 	 	 	 	90 days after End
	 

	 	 	 	 	 	 	 	 	 	 	 	of Vesting Term
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	12,500	 	 	AD2	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 	 	90 days after End of
	 

	 	 	 	 	 	 	 	 	 	 	 	Vesting Term
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	December 12, 2003
(vesting commenced as
of May 18, 2002)

	 	 	100,000	 	 	AD2
	 	$	5.00	 	 	90 days after End
of Vesting Term
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	March 23, 2004

	 	 	36,750	 	 	AD2
	 	$	2.99	 	 	90 days after End
of Vesting Term
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	March 23, 2004

	 	 	3,250	 	 	AD2
	 	$	2.99	 	 	90 days after End
of Vesting Term
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	March 31, 2005

	 	 	40,000	 	 	AD2
	 	$	2.84	 	 	90 days after End
of Vesting Term






					
	 
	 	 	 	 
	
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