FORM N.2

Settlement Agreement and Mutual Release

THIS SETTLEMENT AGREEMENT AND MUTUAL RELEASE is dated as of ______, 20___, by and between ______a ______corporation with its principal offices at ______(“Customer”), and ______, a ______corporation with its principal offices at ______(“Licensor”).

W I T N E S S E T H : WHEREAS, Customer and Licensor entered into that certain ______agreement (the “Agreement”) pursuant to which Licensor agreed to [license, develop and install for Customer Licensor’s proprietary ______® Version ______software]; and WHEREAS, certain disputes have arisen between Customer and Licensor relating to Licensor’s performance under the Agreement and subsequent understandings between Customer and Licensor; and WHEREAS, Customer and Licensor wish to compromise and resolve the outstanding disputes relating to the Agreement and terminate the Agreement. NOW, THEREFORE, in consideration of the premises and the mutual covenants, conditions, representations and agreements contained herein, the parties hereto hereby agree as follows: 1. Termination of Agreement. Subject to the terms and conditions of this Settlement Agreement and Mutual Release, the parties hereto hereby agree that the Agreement is hereby terminated and shall have no further force and effect, [provided, however, that the terms of Section ______relating to the grant of the license to use the Software shall survive such termination.] [IS THERE ANY OTHER SECTION SUCH AS PAYMENTS, AUDIT RIGHTS THAT NEEDS TO SURVIVE?] 2. Licensor Payment to Customer. Licensor hereby agrees to pay Customer U.S. $ ______by [DATE]. 3. Return of Licensor Equipment. Customer hereby agrees that, within ____ days of the execution of this Settlement Agreement, it shall return and deliver to Licensor’s ______office, at its sole cost and expense, the following Licensor equipment, hardware and software consigned by Licensor to Customer:

[LIST EQUIPMENT AND SOFTWARE] 4. Mutual Releases. (a) Customer for itself, and its affiliates, predecessors, successors, assigns, trustees, officers, directors, partners, employees, representatives and agents, and their heirs, executors and administrators, does hereby remise, release and forever discharge

255 256 A Practical Guide to Software Licensing for Licensees and Licensors, 6th edition

Licensor, its predecessors, successors, assigns, trustees, officers, directors, shareholders, affiliates, parent, partners, employees, representatives and agents, and its heirs, executors and administrators both individually and in their representative corporate capacity, from all claims, demands, actions, damages, costs, expenses, dividends, covenants, contracts, agreements, and compensation whatsoever, whether now known or unknown, foreseen or unforeseen, patent or latent, which it can claim or assert against Licensor, or its predecessors, successors, assigns, trustees, officers, directors, shareholders, affiliates, parent, partners, employees, representatives or agents that may be made in or in connection with the Agreement from the beginning of the world to date of this Release and for all time thereafter. (b) Licensor for itself, and its predecessors, successors, assigns, trustees, partners, employees, representatives and agents, and their heirs, executors and administrators, does hereby remise, release and forever discharge Customer, its predecessors, successors, assigns, trustees, officers, directors, shareholders, affiliates, parent, partners, employees, representatives and agents, and its heirs, executors and administrators both individually and in their representative corporate capacity, from all claims, demands, actions, damages, costs, expenses, dividends, covenants, contracts, agreements, and compensation whatsoever [BUT EXCLUDING INVOICES ______], whether now known or unknown, foreseen or unforeseen, patent or latent, which it can claim or assert against Customer, or its predecessors, successors, assigns, trustees, officers, directors, shareholders, affiliates, parent, partners, employees, representatives or agents that may be made in or in connection with the Agreement from the beginning of the world to date of this Release and for all time thereafter. [ARE THERE OTHER AGREEMENTS THAT NEED TO BE EXCLUDED?] 5. Representations and Warranties; Further Assurances; Confidentiality; Certain Covenants. (a) Each of Customer and Licensor hereby represents and warrants that the execution, delivery and performance of this Settlement Agreement and Mutual Release has been duly authorized and approved by all necessary action on its part. Each of the parties hereto hereby represents and warrants that, upon its execution and delivery of this Settlement Agreement and Mutual Release (assuming the execution and delivery of this Settlement Agreement and Mutual Release by the other party hereto), this Settlement Agreement and Mutual Release will constitute the valid and binding obligation of such party, enforceable against it in accordance with its terms. Each of Customer and Licensor hereby further represents and warrants that it has not assigned or transferred, in whole or in part any claim such party now has or may have against the other, or any portion thereof or interest therein to any person or entity and that all right, title and interest to such claims is held by the releasing party. (b) Each of the parties hereto agrees to take any and all further actions necessary on its part to carry out the terms of this Settlement Agreement and Mutual Release. (c) Each of the parties hereto agrees to treat the terms of this Settlement Agreement and Mutual Release, and agrees to cause its directors, officers, employees, representatives and agents to treat the terms of this Settlement Agreement and Mutual Release, as non-public, sensitive and confidential information. (d) Notwithstanding anything to the contrary contained in this agreement, each of the parties hereto hereby agrees that any confidentiality and non- disclosure covenants set forth in any agreement entered into between the parties, including without limitation that certain Proprietary Information Agreement dated ______, shall remain in full force and effect in accordance with the terms thereof. In addition, each of the parties hereto hereby agrees to return promptly Form N.2: Settlement Agreement and Mutual Release 257 to the other party any proprietary or confidential information of such other party in its possession. 6. Miscellaneous Provisions. (a) This Settlement Agreement and Mutual Release constitutes the entire and only agreement and understanding between Customer and Licensor with respect to the subject matter hereof and may not be altered, enlarged or abridged except by an agreement in writing executed by both of the parties hereto. [ARE THERE ANY COLLATERAL AGREEMENTS THAT SHOULD BE INCLUDED OR EX-CLUDED?] No waiver of any one or several of the terms, conditions or obligations of this Settlement Agreement and Mutual Release, and no partial waiver thereof, shall be construed as a waiver of any of the other terms, conditions or obligations of this Settlement Agreement and Mutual Release. No failure or delay by any party at any time to enforce one or more of the terms, conditions or obligations of this Settlement Agreement and Mutual Release shall constitute a waiver of such terms, conditions or obligations or shall preclude such party from requiring performance by the other party at any time. (b) All the provisions of this Settlement Agreement and Mutual Release shall be considered as separate terms and conditions. In the event any of the provisions hereof is determined to be invalid, prohibited or unenforceable by a court or other body of competent jurisdiction, this agreement shall be construed as if such invalid, prohibited or unenforceable provision has been more narrowly drawn so as not to be invalid, prohibited or unenforceable. Notwithstanding the foregoing two sentences, in the event that any of the provisions of this Settlement Agreement and Mutual Release should be determined to be invalid, prohibited or unenforceable, the validity, legality and enforceability of the remaining provisions contained in this Settlement Agreement and Mutual Release shall not in any way be affected or impaired thereby; provided, however, that in the event Section 4 of this Settlement Agreement and Mutual Release should be determined to be invalid, prohibited or unenforceable, this Settlement Agreement and Mutual Release shall be null and void. (c) The provisions of this Settlement Agreement and Mutual Release shall inure to the benefit of, and be binding upon, the parties hereto and their respective successors and assigns. (d) This Settlement Agreement and Mutual Release shall be governed by and construed in accordance with the laws of the [Commonwealth/State] of ______[THE GOVERNING LAW SHOULD MIRROR THE GOVERNING LAW OF THE AGREEMENT AND NDA] applicable to contracts executed and performed entirely therein. (e) This Settlement Agreement and Mutual Release may be executed in more than one counterpart, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. (f) Notwithstanding anything to the contrary, nothing in this Agreement is intended to or constitutes a waiver of any rights any party has under this Agreement, including, but not limited to, the parties’ right to enforce the obligations set forth on Paragraphs 2, 3 and 5(a).

IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the date first above written.

ATTEST: CUSTOMER 258 A Practical Guide to Software Licensing for Licensees and Licensors, 6th edition

______By:______Name: Title:______

ATTEST: LICENSOR

______By:______Name: Title:______CHAPTER 23, FORM 23.H.3

Settlement Agreement

(Releasing Party Contemplating Bankruptcy)

WHEREAS, ______(“Licensor”) has filed a lawsuit against ______(“Customer”) in the United States District Court for the District of ______captioned ______(“the Lawsuit”); WHEREAS, Licensor and Customer desire to resolve their differences; NOW, THEREFORE, in consideration of the payments and promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Immediately upon execution of this Agreement, Customer will pay Licensor ______DOLLARS ($______) via wire transfer to: ______; ABA #______; DDA #______. 2. Licensor shall file the stipulation of dismissal attached hereto as Exhibit A upon execution of the agreement and receipt of the amount set forth in paragraph one. 3. Customer hereby acknowledges that the total amount due to Licensor under the contract(s) is $______plus interest and further acknowledges that the litigation would have resulted in a judgment against Customer in the amount of $______plus interest on or about ______, 20__. 4. The Parties jointly acknowledge that Customer has ceased doing business and begun a consensual liquidation and distribution to its creditors. The Parties further acknowledge that the Settlement Payment is an amount less than the value of Licensor’s pro-rata share of Customer’s assets, that Customer has offered and Licensor has accepted the Settlement Payment in exchange for dismissing this litigation with prejudice because Customer has limited funds and pursuing the litigation to judgment is unlikely to benefit either party. 5. The Parties recognize that in the event the Settlement Payment is recovered in any subsequent proceeding including but not limited to proceedings under state insolvency law or the United States Bankruptcy Code that Licensor’s liquidated claim against Customer will be $______, plus pre-judgment interest through ______, 20__ and post-judgment interest thereafter and that this settlement is void and any and all claims of Licensor against Customer will be reinstated. 6. Customer represents and warrants that it has no intention of filing for bankruptcy within the next 90 days and that it has no knowledge, information or belief that any other entity intends to file an involuntary petition for bankruptcy of Customer. 7. Licensor knowingly and voluntarily releases, acquits and forever discharges Customer its officers, directors, employees, board members, affiliates, parents, subsidiaries, successors, and assigns (collectively referred to as “Customer Releasees”) from any and all claims or causes of action which Licensor has or may

3 4 A Practical Guide to Software Licensing for Licensees and Licensors, 6th edition have, known or unknown, legal or equitable, asserted or unasserted, against Customer Releasees from the beginning of time until the date of this agreement, including but not limited to, any and all claims asserted in the Lawsuit. 8. Customer knowingly and voluntarily releases, acquits and forever discharges Licensor, its officers, directors, employees, board members, affiliates, parents, subsidiaries, successors and assigns (collectively referred to as “Licensor Releasees”) from any and all claims or causes of action which Customer has or may have, known or unknown, legal or equitable, asserted or unasserted, against Licensor Releasees from the beginning of time until the date of this agreement, including but not limited to, any and all claims asserted in the Lawsuit. 9. Licensor and Customer agree that neither they nor their attorneys nor their representatives shall reveal to the parties, any of the terms of this Agreement or any of the amounts, numbers or terms, conditions or substance of any sums payable hereunder. Nothing contained herein shall be construed to restrict or limit Licensor or Customer from: (i) responding to a request for information or documents in any legal proceeding; or (ii) responding to inquiries made pursuant to an order of a court of competent jurisdiction provided, however, that if Licensor or Customer receive any such oral or written request for information or documents regarding this Agreement, then such party shall promptly notify the other party (as provided below) and inform it regarding both the request and the documents or information provided (or being provided). Notice shall be made by contacting the other party’s counsel at the telephone numbers and addresses set forth below: Licensor Counsel Address Customer Counsel Address Furthermore, this paragraph does not prohibit either party from disclosing necessary information to their respective tax advisors or accountants for tax and accounting purposes. 10. Licensor agrees not to oppose any motion to seal the Lawsuit which Customer may file. 11. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall be deemed one and the same instrument. 12. This Settlement Agreement and attachments hereto constitute the entire agreement between the parties. 13. The parties hereby agree that they have not transferred or assigned any claims released in this agreement. 14. If any term, covenant, condition, or provision of this Agreement, or the application of them to any circumstances is, at any time or to any extent, determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement or its application to circumstances other than those to which it is held invalid or unenforceable shall not be affected, and each term, covenant, condition, and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 15. This Agreement shall be governed by and construed in accordance with the law of the State of ______. 16. The signatories below each represent and warrant that they have the power and authority to sign for and bind the party for which they have signed this agreement.

CUSTOMER Chapter 23, Form 23.H.3: Settlement Agreement 5

Date: ______Name: Title:

LICENSOR

Date: ______Name: Title: