SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE
This Settlement Agreement and Mutual General Release ("Settlement
Agreement") is entered into by and between Xxxxx X. Xxxxxx ("Xxxxxx") and
Xxxxxx.xxx ("Cavion") (sometimes individually "Party" and sometimes
collectively "Parties"), and is effective this 8th day of June, 1999.
RECITALS
WHEREAS, Lassen was employed as Cavion's CEO and Chairman of the
Board pursuant to a Contract for Employment dated February 1, 1999; and
WHEREAS, claims, disputes, and controversies have arisen between the
Parties arising from the Contract for Employment and relating to the terms
of Lassen's employment by Cavion (the "Dispute"); and
WHEREAS, the Parties desire to resolve all disputes between them,
without admitting liability, to avoid the costs and risks of litigation.
AGREEMENTS
NOW THEREFORE, in consideration of the mutual covenants and
agreements contained herein, the receipt and sufficiency of which are
hereby acknowledged, and for value received, the Parties agree as follows:
1. By this Agreement, the Parties enter into a consulting
relationship pursuant to the following terms:
(a) Lassen agrees to provide consulting services to Cavion
through April 15, 2000, on an as-needed basis up to a maximum of 100 hours
(not including travel time to out-of-town speaking engagements, if any).
Scheduling of consulting services will be made by mutual agreement of the
Parties, with both Parties using reasonable efforts to accommodate the
schedules and needs of the other. Lassen's obligation to provide
consulting services shall be limited to 10 hours in any given week, and 25
hours in any given calendar month. (Lassen may, in his sole discretion,
agree to provide more than 10 hours of consulting services in a given week
and 25 hours in a given month, depending on his other commitments at the
time.)
(b) Cavion will reimburse Lassen for all reasonable and
actually incurred expenses associated with his consulting services,
subject to Cavion's normal policies and procedures regarding reimbursement
of such expenses.
(c) Lassen agrees to use his best efforts in performing any
services called for under this consulting agreement. However, the
consulting services that Lassen agrees to provide to Cavion pursuant to
this Settlement Agreement are non-exclusive - i.e., Lassen remains free to
consult with, or become employed by, other business entities, subject to
the restrictions in the February 1, 1999 Contract of Employment.
(d) Cavion agrees to pay Lassen the total sum of $75,000,
payable as follows:
(i) Five Thousand Dollars ($5,000.00) when this Settlement
Agreement is signed by Lassen;
(ii) Fifty-five Thousand Dollars ($55,000.00) payable in
eleven (11) equal monthly installments of Five Thousand Dollars
($5,000.00) payable on the 1st day of each month, beginning with July 1,
1999; and
(iii) Fifteen Thousand Dollars ($15,000.00) due on June 1,
2000.
These amounts will be due and payable whether or not Cavion utilizes
Lassen's consulting services, and all shall be paid by Cavion directly to
Xxxxx X. Xxxxxx, at 000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000, or at such
other address as may be provided to Cavion by Lassen.
2. If Cavion defaults on any of its payment obligations under
Paragraph 1 of this Settlement Agreement, then Lassen shall give written
notice of the default to Cavion by telecopier and by first-class mail at
the addresses and telecopier numbers indicated below or at such addresses
and/or telecopier numbers which Cavion or its counsel may provide to
Lassen hereafter. In such an event, Cavion shall have ten business days
after receipt of such written notice to cure the default described in the
written notice.
3. If Cavion defaults on its payment obligations and does not cure
the default as provided in Paragraph 2 of this Settlement Agreement, the
unpaid balance of the total amounts set forth in Paragraph 1(d) of this
Settlement Agreement shall become immediately due and payable without any
further action by either Party.
4. Except as needed to effectuate this Settlement Agreement, the
Parties agree not to disclose to any person or entity the amount, range,
terms, or conditions of this settlement or the substance of the settlement
discussions or this Settlement Agreement, except that the Parties may
disclose that they have entered into a consulting agreement. The Parties,
may, however, also respond to any inquiry by stating that the Dispute has
been settled to their mutual satisfaction. Notwithstanding the foregoing,
the Parties may disclose the matters subject to this confidentiality
provision if compelled by court order, subpoena, or other legal
requirement. Further, notwithstanding the foregoing, the Parties may
discuss the matters subject to this confidentiality provision with their
spouses, attorneys, accountants, financial advisors, tax preparers, and
other persons who are subject to an independent duty to maintain the
confidentiality of such information.
5. The Parties acknowledge that each of them has an established
reputation within the industries in which they work and/or operate.
Accordingly, Cavion agrees not to make disparaging remarks to third-
parties regarding Lassen or his performance as an employee of Cavion.
Lassen agrees, on his part, not to make disparaging remarks to third
parties regarding Cavion or any of its officers and/or directors.
6. This Settlement Agreement in no way affects the non-competition
provisions of the February 1, 1999 Contract for Employment, including
without limitation the expiration thereof.
7. Subject to and in consideration of the terms and conditions of
this Settlement Agreement, Lassen for himself and on behalf of his spouse,
heirs, personal representatives, administrators, legal representatives,
executors, agents, successors and assigns, hereby generally and
unconditionally releases, acquits and forever discharges Cavion and its
directors, officers, shareholders, agents, employees, attorneys,
representatives, successors in interest and assigns of and from any and
all claims, actions, suits, debts, demands, damages, costs and expenses
and causes of action of any nature whatsoever, whether fixed, or
contingent, liquidated or unliquidated, accrued or unaccrued, known or
unknown, suspected or unsuspected, claimed or unclaimed, however arising,
and without regard to date of accrual, which Lassen may have ever had, now
has, or may acquire in the future against Cavion arising out of, or
relating in any way to Lassen's employment with Cavion or his Contract for
Employment with Cavion, EXCEPT THAT this release shall NOT apply to any
claims to enforce this Settlement Agreement.
7. Subject to and in consideration of the terms and conditions of
this Settlement Agreement, Cavion for itself and on behalf of its past,
present and future partners, parents, subsidiaries, affiliates, directors,
officers, shareholders, agents, employees, attorneys, representatives,
successors and assigns, hereby generally and unconditionally releases,
acquits and forever discharges Lassen and his spouses, heirs, personal
representatives, administrators, legal representatives, executors, agents,
attorneys, successors in interest and assigns of and from any and all
claims, actions, suits, debts, demands, damages, costs and expenses and
causes of action of any nature whatsoever, whether fixed or contingent,
liquidated or unliquidated, accrued or unaccrued, known or unknown,
suspected or unsuspected, claimed or unclaimed, however, arising, and
without regard to date of accrual, which Cavion may have ever had, now
has, or may acquire in the future against him arising out of, or relating
in any way to Lassen's employment with Cavion or his Contract for
Employment with Cavion, and all acts, omissions, circumstances,
transactions, occurrences, facts, or other matters occurring on or before
the date of this Settlement Agreement, EXCEPT THAT this release shall NOT
apply to any claims to enforce this Settlement Agreement.
9. The Parties acknowledge and agree that this settlement is
compromise of disputed claims. The Parties entered into this settlement
solely for the purposes of avoiding the expense and uncertainty of
litigation.
10. In any action brought to enforce or interpret the terms of this
Settlement Agreement, the prevailing party in such action shall be
entitled to recover all costs and expenses incurred in such action,
including their reasonable attorneys' fees.
11. Each of the Parties hereto severally represents, warrants, and
agrees, on his or its own behalf and on behalf of his or its respective
predecessors, successors, assigns, heirs, executors, administrators,
trustees in bankruptcy, and agents, as follows:
(a) Each Party has the full power and authority to execute,
deliver, and perform this Settlement Agreement and has been duly
authorized to do so;
(b) Each Party has not sold, assigned, or otherwise transferred
any interest in the claims, demands, actions, causes of action, or rights
that are the subject of this Settlement Agreement to any person or entity
which is not a Party to this Settlement Agreement;
(c) Each Party has read this Settlement Agreement and fully
understands its contents;
(d) Each Party is executing this Settlement Agreement and any
other documents contemplated herein wholly upon his or its own volition,
individual judgment, belief, and knowledge, upon the advice of counsel,
and this Settlement Agreement is made without reliance upon any statement
or representation of any other Party, except those representations and
warranties expressed in this Settlement Agreement or in separate written
documents executed by and between the Parties with or after the execution
of this Settlement Agreement;
(e) Each corporate Party to this Settlement Agreement is
validly organized and existing under the laws of the place of its
corporation and is duly authorized to enter into the legal commitments
contained in this Settlement Agreement; and
(f) The signature and execution of this Settlement Agreement is
made and undertaken by an individual who is authorized to execute this
Settlement Agreement and the separate written documents executed by and
between the Parties with or after the execution of this Settlement
Agreement and to consummate the transactions contemplated hereby.
12. This Settlement Agreement shall be binding upon and inure to the
benefit of the Parties and their heirs, personal representatives,
executors, administrators, partners, agents, employees, attorneys,
successors, assigns, and transferees.
13. The Parties understand and agree that this Settlement Agreement
and its terms are contractual and are not mere recitals. They also
understand and agree that this Settlement Agreement shall be final and
binding upon them.
14. This Settlement Agreement and any separate written documents
executed by and between the Parties pursuant to this Settlement Agreement
constitute the entire agreement and understanding among them with respect
to the subject matter hereof, and they supersede all prior agreements and
understandings, both written and oral, concerning such matters, but
nothing herein limits the other written agreements executed pursuant to
this Settlement Agreement.
15. Each of the Parties has had the benefit of the advice of counsel
of his or its own choice in the negotiating, drafting, and execution of
this Settlement Agreement, and the language and all parts of this
Settlement Agreement are the product of the efforts of all counsel.
Accordingly, neither the entire Settlement Agreement nor any provision in
it shall be (a) deemed to have been proposed or drafted by any Party or
(b) construed against any Party. This Settlement Agreement shall be
construed liberally to carry out its objectives.
16. This Settlement Agreement shall not be modified, amended, or
revoked except by a writing that sets forth such changes and that is
signed by all Parties.
17. The validity, interpretation, performance and enforcement of
this Settlement Agreement shall be governed by the laws of the State of
Colorado, without regarding to Colorado's choice of law rules.
18. All Parties here to agree to enter into and execute such other
and further documents and instruments as may be necessary to carry out the
terms and objectives of this Settlement Agreement.
19. Any notices required or allowed to be given pursuant to this
Settlement Agreement shall be made as follows:
To Cavion
Xxxxx X. Selina
Xxxxxx.xxx
0000 Xxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
20. This Settlement Agreement may be executed in counterparts, in
which case all such counterparts shall constitute one and the same
Settlement Agreement. Furthermore, the executed and notarized signature
pages may be transmitted by telecopy, with the original executed and
notarized signature pages to be delivered by overnight service or other
means acceptable to the Parties.
EXECUTED June 8, 1999.
/s/Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
STATE OF COLORADO )
CITY AND ) s.s.
COUNTY OF DENVER )
The foregoing instrument was acknowledged before this 8th day of
June, 1999, by Xxxxx X. Xxxxxx.
Witness my hand and official seal.
(SEAL)
My Commission Expires: 01-14-2002
/s/Xxxxx Xxxxxxx
Notary Public
EXECUTED June -----, 1999.
XXXXXX.XXX
By:/s/Xxxxx X. Xxxxxx
Its: President
STATE OF COLORADO )
CITY AND ) s.s.
COUNTY OF DENVER )
The foregoing instrument was acknowledged before this ----- day of
June, 1999, by --------, --------- of Xxxxxx.xxx.
Witness my hand and official seal.
(SEAL)
My Commission Expires:----------------
-------------------------------
Notary Public
APPROVED AS TO FORM:
FOR XXXXX X. XXXXXX: FOR XXXXXX.XXX
/s/Xxxxxxx X. Xxxxxx /s/Xxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxx Xxxx X. Xxxxxxx
XXXXX & XXXXXXXXX LLP 0000 Xxxxx Xxxxxx Xxxxxx
000 X. 00xx Xxx., Xxxxx 0000 Xxxxx 000
Xxxxxx, Xxxxxxxx 00000 Xxxxxxxxx, Xxxxxxxx 00000
(000) 000-0000 (000) 000-0000
