EXHIBIT 10.30
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SETTLEMENT AGREEMENT, CONSULTING AGREEMENT
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& GENERAL RELEASE
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This Settlement Agreement & General Release ("Agreement") is made and
entered into by and between (1) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, his heirs, successors,
administrators, executors and representatives ("Carrera") and (2) View Tech,
Inc., its current or former officers, directors, agents and employees (not
including Carrera), its parent, its predecessors, successors, affiliates,
related entities, and assigns ("Company").
NOW, THEREFORE, Carrera and the Company agree as follows:
1. GENERAL TERMS:
▇. ▇▇▇▇▇▇▇'▇ employment with the Company began on or about August 11, 1997
and will end as an employee on February 28, 1999. In executing this
Agreement, Carrera hereby formally resigns from his position as General
Manager and employee of the Company.
B. From March 1, 1999 until February 29, 2000 Carrera shall act as a
consultant providing, on an irregular basis, professional management
services for the Company. These services shall assist the Company in
organizational transition underway during the period of March 1, 1999
through February 29, 2000.
▇. ▇▇▇▇▇▇▇ and the Company want to settle fully and finally all potential
and actual differences, if any, between them, which arise out of or
relate to Carrera's employment with, or separation of employment from,
the Company. Carrera and the Company want to settle fully and finally
as many potential and actual differences and issues, if any, as
possible, between them, which arise out of or relate to Carrera's
membership in the Board of Directors with the Company.
▇. ▇▇▇▇▇▇▇ and the Company also acknowledge that the Company is aware that
Carrera, after his employment ends with the Company, will be forming a
new corporation shortly thereafter.
▇. ▇▇▇▇▇▇▇ and the Company agree that the August 18, 1997 employment
letter agreement between the Company and Carrera is hereby
extinguished, canceled and rendered null and void. Any continued
benefits or payments made to Carrera after February 28, 1999 are
pursuant to the Agreement and not pursuant to the August 18, 1997
employment letter agreement.
▇. ▇▇▇▇▇▇▇, by executing this Agreement, hereby informs the Company that
he will resign his membership from the Company Board of Directors,
effective December 31, 1999.
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2. CARRERA CONSIDERATION FOR ENTERING INTO AGREEMENT:
▇. ▇▇▇▇▇▇▇ acknowledges that his employment with the Company ended on
February 28, 1999. He will remain on the Board of Directors until
December 31, 1999 at the latest. During the time that he will continue
to be a member of the Board of Directors, Carrera agrees to forego, and
not accept, any remuneration as a non-employee member of the Board of
Directors. Carrera shall, in the execution of his duties as a non-
employee member of the Board of Directors, be entitled to reimbursement
of his reasonable expenses, as approved by a majority of the Board of
Directors.
▇. ▇▇▇▇▇▇▇ understands and agrees that he has not suffered any
discrimination in the terms, conditions or privileges of his
employment, and/or membership in the Board of Directors, based upon
age, race, gender, religious creed, color, national origin, ancestry,
physical disability, mental disability, medication condition, marital
status, sexual orientation, and/or harassment. Carrera also understands
and agrees that he has not complained of any such discriminatory and/or
harassing acts while employed at Company, nor as a member of the Board
of Directors of the Company. Further, Carrera understands and agrees
that the Company has not retaliated against Carrera in any way with
reference to any actual or potential acts of discrimination and/or
harassment, which Carrera acknowledges there were no such acts of
discrimination and/or harassment.
▇. ▇▇▇▇▇▇▇ represents and agrees that he has turned over to the Company
all files, memoranda, records, electronic data, documents and tangible
items, and any other physical and/or intangible property ("Property")
which are the property of the Company and which Carrera had in his
possession, custody or control, as an employee, at the time he executed
this Agreement. However, as Carrera will remain a member of the
Company's Board of Directors until December 31, 1999, Carrera may still
maintain, in his possession, custody or control, all such Property
necessary to fulfill his duties as a member of the Board of Director
until he ceases to be a member of the Board of Directors.
▇. ▇▇▇▇▇▇▇ represents and agrees that he has not filed before, or at the
time of, executing this Agreement, a lawsuit, administrative complaint,
claim, charge of any kind with any court, governmental or
administrative agency, or arbitrator against the Company or its
officers, directors, agents or employees, asserting anything released
in this Agreement. Carrera promises never to file any such lawsuit,
administrative complaint, claim or charge, against the Company
asserting anything released in this Agreement.
3. COMPANY CONSIDERATION:
A. The Company will pay Carrera his normal base pay from his position as
General Manager from March 1, 1999 through February 29, 2000, as well
as his usual
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benefits he received on a monthly basis as an employee. He will also
continue to be provided with e-mail and voice mail (with appropriate
"walls" and limited access, all for the Company's benefit) during the
period of March 1, 1999 through February 29, 2000. Carrera may also
use, during the March 1, 1999 through February 29, 2000 period, the
Company's Dell computer provided to Carrera as an employee; but only
for use off-Company premises. Carrera promises to return the Dell
computer to the Company no later than March 6, 2000. Carrera will also
continue to be able to use a Company cell phone he has been using.
However, the Company is only paying for the basic cost of the phone,
and for phone calls, up to a total of One Hundred and Fifty Dollars
($150.00) per month. Any sums above $150.00 per month are Carrera's
responsibility and Carrera must reimburse the Company for those costs.
Carrera promises to return said company cell phone no later than March
6, 2000.
▇. ▇▇▇▇▇▇▇ will have, by February 29, 2000, 27,000 vested stock options,
as an employee or a corporate insider (per applicable securities laws),
under the 1997 Stock Incentive Plan. Per this Agreement, and consistent
with the 1997 Stock Incentive Plan, Carrera shall have until and
including February 29, 2000 in which to exercise the stock options.
Carrera is advised that the 1997 Stock Incentive Plan has no three
month, or any other, extension period such that, on February 29, 2000,
all of Carrera's unexercised stock options plan become null and void,
canceled and/or lapsed.
▇. ▇▇▇▇▇▇▇ has 2,000 vested stock options, as a Director, under the 1997
Non-Employee Director's Stock Option Plan. Pursuant to the Non-Employee
Director's Stock Option Plan, and this Agreement, Carrera shall have
twelve (12) months, from the date in which he ceases to provide any
services to the Company as a consultant or member of the Board of
Directors. Carrera is advised that the 1997 Non-Employee Director's
Stock Option Plan has no three month, or any other, extension period
such that, at the end of the twelve (12) month period from the date in
which he ceases to provide services as a consultant or member of the
Board of Directors, all of Carrera's unexercised stock options under
this plan become null and void, canceled and/or lapsed.
▇. ▇▇▇▇▇▇▇ has 12,000 vested stock options, as a Director, under the 1995
Stock Option Plan. Pursuant to the 1995 Stock Option Plan, and this
Agreement, Carrera has an additional three months after the date in
which he terminates his membership in the Board of Directors and
consultant services with the Company, said termination date that can be
no later than February 29, 2000. For the consideration provided by the
Company, Carrera agrees to exercise 10,000 out of the 12,000 vested
stock options no later than March 31, 1999 (this year). Carrera agrees
said 10,000 vested stock options shall become null and void, canceled
and/or lapsed if said 10,000 vested stock options are not so exercised
by March 31, 1999. Carrera is advised that the remaining 2,000 shares
are to be exercised no later than three months after Carrera terminates
his membership in the Board
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of Directors and consulting services with the Company, said termination
date that can be no later than February 29, 2000.
E. To the extent the Company has promised to Carrera, orally or in
writing, any stock options other than as stated in Paragraph 3(B)
through (D), the Company and Carrera hereby agree that any and all such
other stock options are null and void, canceled and/or lapsed upon
execution of this Agreement. To the extent Carrera has any stock
options that will not vest by February 29, 2000, the Company and
Carrera agree that any and all said non-vested stock options are null
and void, canceled and/or lapsed by February 29, 2000.
F. The Company, in entering into this Agreement, including, but not
limited to the consideration identified in Paragraph 3(A) through 3(E),
does not admit, and is not admitting, any liability or fault to
Carrera, or anyone, on any issue relating to the events leading up to
this Agreement, nor any issue relating to this Agreement.
4. MUTUAL GENERAL RELEASE:
A. In exchange for the payments and promises provided herein, Carrera
knowingly and voluntarily waives and releases all rights and claims,
known and unknown, which Carrera may have against the Company, and/or
any of the Company's, current or former officers, directors, agents or
employees, successors, parent, predecessors, affiliates or related
entities, for any and all lawsuits, complaints, claims, charges,
liabilities, obligations, promises, agreements, contracts,
controversies, damages, actions, causes of action, rights, demands,
costs, losses, debts and expenses of any kind, based upon Carrera's
status as an employee and/or a member of the Board of Directors with
the Company.
B. In exchange for the payments and promises provided herein, the Company
knowingly and voluntarily waives and releases all rights and claims,
known and unknown, which Company may have against the Carrera, his
heirs, successors, administrators, executors, representatives and
assigns, for any and all lawsuits, complaints, claims, charges,
liabilities, obligations, promises, agreements, contracts,
controversies, damages, actions, causes of action, rights, demands,
costs, losses, debts and expenses of any kind, based upon Carrera's
status as an employee of the Company.
C. This Mutual General Release includes, but is not limited to,
complaints, claims and charges for employment discrimination, wrongful
termination (actual and constructive), violation of public policy,
breach of contract (express, implied, oral and written), breach of
implied covenant of any kind, fraud, intentional misrepresentation,
negligent misrepresentation, intentional infliction of emotional
distress, negligent infliction of emotional distress, harassment (based
upon sex, race, age or other state or federally protected category),
retaliation (based upon complaint of discrimination or harassment), or
any other claims,
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based upon tort, contract or otherwise, relating to Employee's
relationship with the Company.
D. This Mutual General Release also includes a release of all complaints,
claims and charges under any federal, state or local regulations and
laws, including but not limited to: (1) Title VII of the Civil Rights
Act of 1964, 42 U.S.C. Sections 2000e et seq. (discrimination,
harassment and retaliation in employment); (2) the Age Discrimination
in Employment Act, 29 U.S.C. Sections 621 et seq.; (3) Section 1981 et
seq. Of the Civil Rights Act of 1866, 42 U.S.C. Sections 1981, et seq.
(civil rights violations and discrimination); (4) the Equal Pay Act of
1963, 29 U.S.C. Sections 206, et seq.; (5) the California Fair
Employment and Housing Act, California Government Code Sections 12900
et seq. (discrimination, harassment and retaliation in employment); (6)
the California Labor Code sections 200 et seq. (salary, commission,
compensation, benefits and other matters); (7) the Fair Labor Standards
Act, 29 U.S.C. Sections 201, et seq. (wage and hour matters, including
overtime pay); (8) the Consolidated Omnibus Budget Reconciliation Act
of 1985 (COBRA), 42 U.S.C. Section 1395(c) (insurance continuation
matters); (9) Executive Order 11141 (age discrimination); (10) Section
503 of the Rehabilitation Act of 1973, 29 U.S.C. Sections 701, et seq.
(disability discrimination); (11) the Employee Retirement Income
Security Act of 1974, 29 U.S.C. Sections 1001, et seq. (employee
benefits); (12) Title I of the Americans with Disabilities Act
(disability discrimination, harassment and retaliation); (13)
California Labor Code Section 132(a) (discrimination and/or retaliation
based upon filing or maintaining a workers' compensation claim); and
(14) any applicable California Industrial Welfare Commission Order
(wage matters).
E. This Mutual General Release, however, does not waive or release any
right or claims of Employee or Company under (1) the Age Discrimination
in Employment Act; (2) the Consolidated Omnibus Budget Reconciliation
Act of 1985, 42 U.S.C. Section 1395(c) (insurance COBRA matters) and
(3) the Employee Retirement Income Security Act of 1974, 29 U.S.C.
Sections 701, et seq. (employee benefits), to the specifically limited
extent that any such claims arise after the date the Employee and the
Company sign this Agreement.
▇. ▇▇▇▇▇▇▇ and the Company acknowledge and agree that, as a condition to
this Agreement, each expressly releases and waives all rights and
claims that the Carrera or the Company know about as well as those they
may not know about. Carrera and the Company expressly acknowledge that
this Agreement is intended to include and does include, in its effect,
without limitation, all claims which each party does not know or
suspect to exist against the other party, notwithstanding any waivable
and/or voidable statutory rights, and language, to the contrary, for
each party to this Agreement. Carrera and the Company agree to waive
the benefits of California Civil Code Section 1542 which states:
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"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."
G. Notwithstanding anything stated in any and all portions of this
Paragraph, and all subparagraphs herein, nothing in this entire
Paragraph 4 releases Carrera from anything related to Carrera's status
as a member of the Company's Board of Directors, including, but not
limited to, Claims by third parties (whether by individuals, businesses
or public entities) relating to stocks, warrants, bonds, and any and
all other securities matters, Claims by employees or board members
(other than Carrera) against the Company, and other matters.
5. NON-ASSIGNMENT OF ANY RIGHTS, DUITES OR OBLIGATIONS UNDER AGREEMENT:
Carrera and the Company represent and agree that each has not assigned or
transferred, or attempted to assign or transfer, to any person or entity,
any of the claims being released in this Agreement. Carrera represents and
agrees that he shall not assign his rights, liabilities, obligations or
duties in this Agreement, or any portion of this Agreement.
6. NO REPRESENTATIONS, ORAL OR WRITTEN, OTHER THAN WHAT IS CONTAINED IN THIS
AGREEMENT:
Carrera and the Company represent and agree that no promises, statements,
restrictions, limitations or inducements have been made by or to each other
that caused either party, or both parties, to sign this Agreement other
than those expressly stated in this Agreement.
7. CONFIDENTIALITY OF THIS AGREEMENT & NON-DISPARAGMENT:
▇. ▇▇▇▇▇▇▇ agrees to keep the terms and amount of this Agreement completely
confidential, and not to disclose such information to anyone other than
Employee's spouse, and the Carrera's attorneys and licensed tax and/or
professional investment advisors (hereafter referred to as "Carrera's
Confidants"), all of whom will be informed of this confidentiality
provision, and be bound by this confidentiality provision. Neither Carrera
nor Carrera's Confidants shall disclose the amount or terms of this
Agreement to anyone, including, but not limited to, any representative of
any media (print, broadcast, internet, cable, etc.), to any past, present
or prospective employee of, or applicant for, employment with the Company,
executive recruiter or "headhunter", to any counsel for any current or
former employee of the Company, to any other counsel or third party, and/or
to the public at large.
B. Each party agrees not to make any written or oral statements that
denigrate, disparage or otherwise criticize the other party.
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C. The obligations described in this Paragraph, and all subparagraphs herein,
shall continue in effect after the payment of the sums required under this
Agreement.
8. NON-COMPETITION, NON-DISCLOSURE OF TRADE SECRETS & CONFIDENTIAL INFORMATION:
▇. ▇▇▇▇▇▇▇ understands and agrees that in the course of his relationship
with the Company, he has acquired confidential information and trade
secrets concerning the Company's past, present or future clients,
operations, plans, methods of doing business, projected and historic
revenues, marketing, costs, production, growth and distribution, and
confidential business strategies. Carrera understands and agrees that it
would be extremely damaging to the Company if such information were
disclosed to a competitor, or made available to any other person,
business or government entity. Carrera understands and agrees that such
information has been disclosed in confidence to Carrera, that he will
keep such information secret and confidential and that he will not in
any way use, distribute or disclose such information in any manner
contrary to law, including, but not limited to, the Uniform Trade
Secrets Act, as passed by the State of California, Civil Code Sections
3426 et seq. This non-disclosure includes, but is not limited to, non-
disclosure to any competitors of the Company, as well as the general
public, of such confidential and/or trade secret information.
B. In view of the nature of Carrera's relationship with the Company,
Carrera also agrees that the Company would be irreparably harmed by any
violation or threatened violation of this Agreement, and that,
therefore, the Company shall be entitled to an injunction prohibiting
Carrera from any violation or threatened violation of this Agreement,
and/or other relief, including, but not limited to, monetary damages, to
which the Company may be entitled. Carrera's duties under this entire
Paragraph, including subparagraphs herein, shall continue after the
execution of this Agreement.
9. NO CONTACT WITH COMPANY EMPLOYEES AND/OR CUSTOMERS OF COMPANY:
▇. ▇▇▇▇▇▇▇ agrees that, for a period lasting from March 1, 1999 through and
including February 29, 2000, Carrera will not initiate any contact
whatsoever with any current employee of the Company for reasons of
soliciting employment of said current employees without receiving prior
approval from the Company, through the General Counsel of the Company.
B. The Company acknowledges that Carrera has personal pre-existing
relations with certain current employees. Contact for personal reasons
may be made to said current Company employees. The Company also
acknowledges that Carrera will be contacting various employees for
technical information and questions. Carrera agrees that he will not do
so in a manner that will interfere with the Company's employees'
performance of their full duties for the Company.
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C. Except for the tele-medicine products mentioned in Paragraph 9(D) below,
Carrera agrees that, from the period beginning six weeks before
executing this Agreement through the period ending February 29, 2000, he
has not contacted, nor will he contact, in any way whatsoever, any
current or potential customers of the Company to work with Carrera
and/or any business or corporation in which Carrera plans to become
involved, without receiving prior approval from the Company through the
General Counsel of the Company.
▇. ▇▇▇▇▇▇▇ also agrees that, for a period lasting from March 1, 1999
through and including February 29, 2000, Carrera will not compete with
the Company in any product or service areas in which the Company has
been conducting its business, with the sole exception of tele-medicine
products, without receiving the prior approval of the Company, through
the General Counsel of the Company.
E. The Company agrees not to manufacture tele-medicine products for the
period of March 1, 1999 through December 31, 1999 without receiving
prior approval from Carrera and/or the business in which Carrera is
involved.
F. The phrase "potential customers" means, for this Paragraph 9, and all
subparagraphs herein, any and all persons or entities with whom the
Company is in negotiation for a contractual relationship as a customer
of the Company, at the time of the execution of this Agreement between
Carrera and the Company. The term "contact" shall mean any and all
contacts whatsoever, whether in-person, by e-mail, telecommunications,
internet, letter, or any other form of contact, either directly or
indirectly through any intermediary or intermediaries.
10. OPPORTUNITY TO CONSULT WITH ATTORNEY; REASONABLE TIME TO CONSIDER AGREEMENT;
VOLUNTARY PARTICIPATION IN THIS AGREEMENT; RIGHT TO REVOKE AGREEMENT:
▇. ▇▇▇▇▇▇▇ acknowledges that he has been advised of the opportunity to
review this Agreement with an attorney, that he has had the opportunity
to thoroughly discuss with an attorney all aspects of (i) his rights
against the Company, if any, and (ii) this Agreement, to the extent
Carrera elects or elected to do so, that he has carefully read and fully
understands all of the provisions of this Agreement, that he has been
offered a reasonable period of up to twenty-one (21) days to consider
signing or executing this Agreement, and that he is voluntarily signing
or executing this Agreement.
▇. ▇▇▇▇▇▇▇ further understands that he has the right to revoke this
Agreement for a period of seven (7) days after the date of execution,
with such revocation limited to claims under the federal Age
Discrimination in Employment Act, 29 U.S.C. Sections 621, et seq. If
Carrera revokes the Agreement as to claims under the Age Discrimination
in Employment Act, Carrera understands and agrees that the
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Agreement remains valid and enforceable as to all other aspects of the
Agreement, including but not limited to the Mutual General Release.
C. However, notwithstanding Paragraph 10(B), if Carrera undertakes to
revoke the Agreement as to claims under the Age Discrimination in
Employment Act within the seven (7) day period, the Company, in its sole
discretion, reserves the right, within six months thereafter, to revoke
any other portion, or the rest, of the Agreement.
11. GOVERNING LAW & VENUE:
This Agreement is to be construed under the laws of the State of
California. Carrera and the Company expressly agree that any lawsuit,
claim or charge which may be filed in connection to any dispute or issue
concerning this Agreement shall be so filed within the State of
California, in the State or Federal court, whichever is most
appropriate, in the County of Ventura.
12. PROPER CONSTRUCTION OF AGREEMENT:
A. The language of all provisions, parts and terms of this Agreement shall
be construed, in all cases, as a whole according to its fair meaning,
and not strictly for or against any of the parties, regardless of which
part prepared the language in question.
B. The paragraph headings used in this Agreement are intended solely for
convenience of reference, and shall not in any manner amplify, limit,
modify, clarify or otherwise be used in the interpretation of any of the
provisions, parts or terms in this Agreement.
C. Should any provision, part or term in this Agreement be declared, or be
determined to be, illegal or invalid, all remaining provisions, parts or
terms shall be valid, and the illegal or invalid provision, part or term
shall be deemed not to be a part of this Agreement.
D. This Agreement is the entire agreement between Carrera and the Company.
This Agreement supersedes any and all prior agreements or
understandings, written or oral, between the parties relating to the
subject matter of this Agreement.
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PLEASE CAREFULLY READ THIS AGREEMENT, WHICH IS A TOTAL OF TEN (10) PAGES, IN ITS
ENTIRETY.
Executed at Camarillo, CA, this 2/nd/ day of March, 1999.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Witness: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Executed at Camarillo, CA, this 2/nd/ day of March, 1999.
VIEW TECH, INC. ("Company")
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇ ▇▇▇▇▇▇▇▇
Chief Financial Officer
Witness: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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