exv10w40



 





Exhibit 10.40




CONFIDENTIAL SETTLEMENT AGREEMENT AND GENERAL RELEASE




     This Confidential Settlement Agreement and General Release (“Agreement”) is entered into by
and between STEVEN M. ALLISON (“Employee”) and MIDWAY GAMES INC. (with its subsidiaries, the
“Company”).



     WHEREAS, Employee’s employment is terminating;



     WHEREAS, Employee wishes to receive a severance payment as full satisfaction and release of
any and all claims Employee has relating to or associated with his employment with the Company;



     WHEREAS, the Company and Employee, each denying any wrongdoing or liability whatsoever, desire
to sever their employment relationship in an amicable fashion and to settle all actual and
potential disputes.



     NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable
consideration, the sufficiency of which is hereby acknowledged:



     1. Termination. Employee’s employment with the Company shall terminate effective March
31, 2008 (the “Termination Date”).



     2. Payment to Employee. For settlement purposes only and provided this
Agreement is final and irrevocable under paragraph 9 hereof, the Company agrees to continue to pay
Employee his base annual salary in effect as of the Termination Date through September 30, 2008,
less usual payroll deductions, payable in normal payroll intervals. Employee acknowledges that the
amount hereunder is above and beyond anything which is owed to Employee under company policy or by
law. Payments will be sent to Employee by U.S. Mail to his home address, or deposited in his bank
account directly if practicable, commencing with the first pay period after the later of the
Terminate Date or the date this Agreement is final and irrevocable under paragraph 9 hereof.
Employee will not accrue any vacation, credited service under any benefit plan or other benefits
during the period of payments hereunder. Employee and the Company acknowledge that (i) Employee has
submitted and/or intends to submit expense reports to the Company for expenses incurred in
connection with his employment with the Company and that Employee shall be entitled to
reimbursement of such expenses to the extent provided by Company policy (“Reimbursements”) and
(ii) Employee shall be entitled to payment for accrued vacation through the Termination Date (the
“Vacation Pay”) as required by law.



     3. Continuation of Health Benefits. Employee is advised that provided he properly
elects continuation of health insurance coverage under and pursuant to COBRA, 29 U.S.C. § 1161
et seq., he shall be solely responsible for any premiums, except that the Company will pay
the premium on Employee’s behalf for standard employee medical (including dental) coverage until
September 30, 2008 or until Employee is re-employed elsewhere, whichever is earlier. Coverage
provided during this period will count toward the maximum of 18 months of coverage provided under
COBRA and toward any coverage provided under similar state laws. Employee will receive information
on his opportunity to elect “COBRA” coverage under separate cover.



     4. General Release and Covenant Not To Sue. In consideration of the promises contained
herein, the adequacy of which is hereby acknowledged, and other good and valuable consideration,
Employee (on behalf of himself and his heirs, executors, administrators, successors and
assigns) irrevocably and unconditionally releases and forever discharges and acquits the Company
(and all its agents, officers, employees, directors, shareholders, attorneys and any affiliated or
related companies, including parent companies, subsidiaries, divisions, successors and assigns)
(collectively “Releasees”), from any and all claims, charges, liabilities, debts, demands,
grievances and causes of action of



 









 







whatsoever kind, at law or in equity, whether accrued,
contingent, inchoate, known or unknown, suspected or unsuspected, or otherwise, including but not
limited to claims relating to or arising out of Employee’s employment and termination of
employment, claims for breach of employment contract, claims for attorneys’ fees, claims under the
Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964 and 1991, as
amended, The Fair Labor Standards Act, The Family and Medical Leave Act, the Americans with
Disabilities Act, the Equal Pay Act, the Employee Retirement Income Security Act (“ERISA”), the
Worker Adjustment and Retraining Notification Act (“WARN”), the Illinois Wage Payment and
Collection Act, the Illinois Human Rights Act, the California Fair Employment and Housing Act, the
Unruh Civil Rights Act, the Ralph Civil Rights Act, Cal. Labor Code §200 et seq., claims of
retaliation, claims for pain and suffering and mental and emotional distress, wrongful discharge
claims, severance pay claims other than those contemplated by this Agreement, accrued vacation,
bonuses, salary and benefits, or other claims under any federal, state or local constitution,
statute, or common law, which Employee has, had or may have against the Releasees arising from or
relating to acts or omissions through the date hereof, or involving the continuing effects of any
acts or omissions which occurred through the date hereof. Notwithstanding anything to the contrary
herein, Employee reserves the right to apply for unemployment compensation relating to his
termination of employment by the Company and the right to receive the Reimbursements and Vacation
Pay. For purposes of clarification, the Company acknowledges that its obligations to defend and
hold harmless Employee arising from his election and service as an officer of the Company continue
hereafter unaffected by this Agreement.



     Employee acknowledges and agrees that the nature, materiality, extent and results of the
claims compromised and released by this Agreement may not now all be known or anticipated by him.
However, it is the intention of the parties hereto that this Agreement shall be effective as a bar
to each and every claim, charge, liability, offset, demand, grievance, debt and cause of action
that Employee may have against the Company. Employee further acknowledges and agrees that he may
hereafter discover facts different from or in addition to those now known, suspected or believed to
be true with respect to such claims, demands or causes of action and agrees that this release will
be and remain effective in all respects notwithstanding any such differences or additional facts.



     Employee covenants and agrees not to sue, to file a charge, to make a claim or demand, to
commence or maintain, or assist or otherwise participate (except, as required by law, to give
testimony), in any action or proceeding of any kind in any court, before any government agency or
in any other forum, or to accept any money, benefit, or other relief from any proceeding which
would be precluded by this release, whether brought directly by Employee or brought by any other
person, agency or entity, and agrees to indemnify the Company against all liability, costs and
expenses and attorney’s fees in the event he breaches this release and covenant not to sue.



     5. Waiver of Section 1542. In granting the general release as set forth in paragraph 4
above, Employee expressly waives all rights under Section 1542 of the California Civil Code, which
he has read and fully understands. It reads 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.”


Employee understands that by waiving rights under California Civil Code §1542 he is forever
relinquishing the right to seek redress from the Company for any injury or damages which are
unknown to him at the present time.




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     6. Non–Interference With Other Employees. Employee agrees that he will not induce or
attempt to induce any employees, consultants, or other personnel of the Company to terminate their
relationship with the Company.



     7. Full Compensation Received. Employee acknowledges that he has previously received
all accrued but unused vacation pay, all of the salary and any other compensation and benefits to
which he was entitled to and including the date of his termination, and any other sums to which he
is entitled by virtue of his employment with the Company, other than the Reimbursements, Vacation
Pay and his salary and employment benefits through the Termination Date, and that the payments set
forth in paragraphs 2 and 3 hereof are above and beyond anything to which Employee is entitled by
Company policy or applicable law.



     8. Return of Company Property. Employee will on or prior to the Termination Date
return all keys, key cards, identification badges, records, papers, files, blueprints, documents,
computers, computer disks, software, data stored on any computer or other storage device, and other
materials or property belonging to the Company or its employees to the Company. Employee
represents that as of the date of execution of this Agreement he has returned to the Company all
such materials or property other than the keys, identification badge and Blackberry issued to him
by the Company. Notwithstanding anything set forth herein to the contrary, no severance or other
payments will be paid to Employee by the Company until such keys, badge and Blackberry have been
returned.



     9. Notice of Employee Rights; Effective Date. Employee has been advised (a) that he
has up to twenty-one (21) days to consider this Agreement; (b) that the Agreement does not take
effect until seven (7) days after signing and may be revoked by him during that time period; (c) to
consult an attorney before signing this Agreement; and (d) that the Employee does not waive rights
or claims that may arise after the date the waiver is executed. This Agreement will be effective
eight (8) days after Employee signs it, provided he has not revoked his Agreement during the
seven-day revocation period. If Employee does not sign or if he timely revokes his Agreement, this
Agreement will be null and void.



     10. Confidentiality. Employee agrees that the fact and terms of this Agreement are
strictly confidential, and therefore, agrees that from the date of presentment to him of this
Agreement until the date the Company elects to publicly disclose such information, Employee shall
not disclose, permit or cause the disclosure of any information concerning this Agreement, except
to his attorney, tax preparer and immediate family members, provided they also agree to keep this
Agreement and its terms confidential.



     11. Entire Agreement. With respect to the matters set forth herein, this Agreement
represents the entire agreement between Employee and the Company and supersedes all prior
agreements or understandings, if any, between the parties, except for any Inventions, Intellectual
Material and Confidentiality Agreement signed by Employee (the “Confidentiality Agreement”) or any
agreement relating to rights in intellectual property or proprietary rights and/or the confidential
information and/or trade secrets of the Company or any agreement relating to competition with the
Company or to the solicitation or hiring of the employees of the Company, the provisions of which
Employee acknowledges are designed to survive the termination of his employment. Employee
acknowledges that except for the explicit provisions of this Agreement, no promises or
representations of any kind have been made to Employee by the Company, its attorneys or any of the
Releasees, to
induce him to enter into this Agreement. No modification of this Agreement can be made except
in writing and signed by Employee and an authorized representative of the Company.



     12. Choice of Law; Savings Provision. This Agreement shall be governed, interpreted
and construed under the laws of the State of Illinois without regard to its conflict of law
principles. The



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parties agree that any dispute or litigation arising in whole or in part hereunder
shall, at the option of the Company, be litigated in any state or federal court of competent
subject matter jurisdiction sitting in Illinois, to the jurisdiction of which and venue in which
Employee irrevocably consents. If any provision of this Agreement shall be invalidated or refused
enforcement by any court of competent jurisdiction, the provisions not invalidated or refused
enforcement shall remain in full force and effect.



     13. No Attorney’s Fees. Employee waives his right, if any, to attorney’s fees. The
Company will pay all expenses incurred by it, and Employee will bear all expenses incurred by him,
in the negotiation and preparation of this Agreement.



     14. Non–Disparagement Pledge. The parties agree that it would be counterproductive and
undesirable for either to communicate in a derogatory manner to third parties about one another,
and each party pledges not do so, unless required by law. Employee acknowledges and agrees that
this pledge includes an obligation on his part not to make derogatory statements about the Company
or its affiliated companies, or their employees, officers, directors, or shareholders or about
their businesses, including without, limitation, their products, processes, plans and strategies.
Employee acknowledges and agrees that if he makes any such derogatory statements or he discloses
any information in violation of the Confidentiality Agreement or Section 10 above or he discloses
any other information about the Company’s or its affiliates’ businesses that is not already known
(through no action of Employee) to the public generally (whether such statements or disclosures are
made orally, in writing, electronically or otherwise), the Company shall be relieved of any further
payment obligations under this Agreement, as well as its obligations under this Section 14 (such as
its pledge not to make derogatory statements about Employee), and the Company shall be entitled to
pursue all other remedies available to it for Employee’s breach of his obligations, at law and in
equity. The Company will refer all inquiries from prospective employers concerning Employee to the
Company’s Human Resources Department or Chief Executive Officer. Employee will not allege or claim
that he was discriminated against or otherwise mistreated by the Company in any manner.



     15. For Settlement Only. This Agreement is entered into for settlement purposes only
and represents the compromise of disputed claims, actual or potential, which Employee has or may
believe he has. Neither this Agreement, the decision to enter into this Agreement, nor anything
done pursuant to this Agreement shall be construed to be an admission or evidence of any wrongdoing
or liability by the Company, such wrongdoing and liability being expressly denied. Nor will this
Agreement, its existence or its terms be admissible in any proceeding other than a proceeding to
enforce the terms of this Agreement or as an affirmative defense to any attempt to breach it. It
is understood that the separation pay provided pursuant to this Agreement is for purposes of
amicably severing the employment relationship and forever resolving any disputed claims, actual or
potential, which Employee has or may believe he has.



     16. Representations & Warranties By All Parties. Each of the parties represents and
warrants, as to himself, herself or itself that (a) he, she or it has the capacity, full power and
authority to enter into this Agreement, (b) the individual signing on behalf of the corporate party
is authorized to do so, (c) he, she or it has not assigned, encumbered or in any manner transferred
all or any portion of the claims covered by this Agreement, (d) there are no other charges,
complaints, suits, arbitrations or other claims or proceedings pending between the parties in any
court, before any agency, or in any forum, and (e) no other person, party or corporation has any
right, title or interest in any of the claims covered by this Agreement.



     17. Successors & Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective personal representatives, agents, attorneys, executors,
administrators, heirs, successors and assigns.



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     18. Knowing and Voluntary Signing of Binding Contract. Employee represents and
warrants that he has read this Agreement and understands all of its terms and executes this
Agreement voluntarily and without duress or undue influence, and with full knowledge of its
significance, intending to be legally bound. Employee acknowledges that by signing this Agreement,
subject to the limited right to revoke in paragraph 9, he is GIVING UP ALL CLAIMS AGAINST the
Company and Releasees.



     19. Opportunity To Consult Advisors. Both Employee and the Company have had reasonable
opportunity to consult with attorneys or other advisors of their own choosing before executing this
Agreement.



     20. Counterparts. This Agreement may be executed in counterparts, each of which may
be signed separately and may be enforceable as an original, but all of which together shall
constitute but one agreement.



     21. Variation of Pronouns. All pronouns and variations thereof shall be deemed to
refer to masculine, feminine or neuter, singular or plural, as the identity of persons may require.



     22. Stock Options. The Company confirms that the circumstances of the termination of
Employee’s employment with the Company are such that Employee will have three months after the
Termination Date to exercise his options to purchase the Company’s common stock, to the extent
vested as of the Terminate Date, pursuant to Article XII, Section 2 of the Company’s 1996 Stock
Option Plan and the agreement under which such options were issued to Employee by the Company.



     IN WITNESS WHEREOF, the parties hereto have executed this Agreement by affixing their
signatures and the date of execution where indicated below.



	 	 	 	 	 	 	 	 	 	 	 
	MIDWAY GAMES INC.	 	 	 	EMPLOYEE	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Deborah K. Fulton
	 	 	 	By:
	 	/s/ Steven M. Allison	 	 
	 

	 	 

	 	 
	 	 	 	 

STEVEN M. ALLISON
	 	 
	Its:

	 	SVP, Secretary and General Counsel	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Dated: January 24, 2008	 	 	 	Dated: January 24, 2008	 	 







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