EXHIBIT 10.19
SETTLEMENT AGREEMENT AND GENERAL RELEASE
This Settlement Agreement and General Release ("Agreement") is made and
entered into by and among Bridgetech Holdings International, Inc. and all
affiliates of Bridgetech ("Bridgetech") on the one hand and Xxxxx X. Xxxxxx,
(herein referred to as the "Employee") on the other (collectively Employee and
Bridgetech shall be referred to herein as the "Parties"). The effective date of
this Agreement shall be May 1, 2005.
W I T N E S S E T H:
WHEREAS, Employee and Bridgetech entered into a employment agreement (the
"Employment Agreement") beginning in December of 2004; and
WHEREAS, Employee and Bridgetech entered into a 39 Month Consulting
Agreement on May 1, 2005 (the "39 Month Agreement"); and
WHEREAS, the Parties intend to terminate the respective rights and
obligations of the Parties pursuant to the Employment Agreement and the 39 Month
Agreement; and
WHEREAS, all the Parties to this Agreement wish to avoid the disruption
and expense of litigation;
NOW, THEREFORE, in consideration of the premises and mutual promises
contained herein, it is agreed as follows:
1. This Agreement is not and shall not in any way be construed as an
admission by any party to this Agreement of any wrongdoing. The Parties have
entered into this Agreement for the sole purpose of resolving any matters
regarding the aforementioned Employment Agreement, the 39 Month Agreement and
any related disputes and to avoid the burden, expense, delay, and uncertainty of
litigation.
2. As consideration for the release of any claims which were or could have
been made by any of the Parties under the Employment Agreement and the 39 Month
Agreement, the Parties agree to provide the following:
(a) Bridgetech shall be obligated to pay Employee, as a consultant
to Bridgetech, $15,000 per month for a period of eighteen months beginning May
1, 2005. See the "18 Month Consulting Agreement," attached hereto as Exhibit A
and incorporated herein by reference as though set forth in full.
(b) Employee agrees and acknowledges that all stock options/warrants
issued to Employee are hereby cancelled and are null and void. The foregoing
acknowledgement and relinquishment of Employee's rights to any stock options or
warrants held by Employee does not in any way affect or impact Employee's
ownership of any Bridgetech stocks/shares issued to or
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SETTLEMENT AGREEMENT AND GENERAL RELEASE
acquired by Employee prior to the date of this Agreement. Employee further
agrees to void the 39 Month Agreement and replace it with the 18 Month
Consulting Agreement beginning May 1, 2005. Employee further agrees to resign
from the Bridgetech Board of Directors effective immediately. Employee agrees
that Bridgetech shall have the exclusive right and interest in all materials,
lists, databases, and other work produced or contributed by Employee pursuant to
the Employment Agreement ("Work Product"), and that Employee shall retain no
right or royalty interest in any such Work Product. (For purpose of this
Agreement, Work Product will be deemed to be any materials, lists databases and
other work produced exclusively for the benefit of the core businesses of
Bridgetech Holdings International and its subsidiaries, but does not under any
circumstances include any work in the Nutraceutical or Cosmeceutical Supplements
business.) If any of the Work Product by Employee under the Employment Agreement
shall be deemed at law to be within the categories of works set forth in the
definition of a "work made for hire," Employee agrees that it shall be
considered a work made for hire. If not deemed to be "work made for hire," then
Employee hereby assigns to Bridgetech any and all copyright or other interest in
such Work Product.
(c) Employee shall keep all confidential and proprietary information
received during the term of the Employment Agreement in confidence and shall not
disclose to any other person or entity without prior written approval of
Bridgetech, any such confidential and proprietary information. The obligations
of the Employee to maintain confidential and proprietary information in
confidence shall be considered satisfied if the Employee takes all reasonable
steps to protect such confidential and proprietary information, according to the
protection measures and levels that would be considered reasonable at the
specific period concerned.
(d) Employee agrees and acknowledges that all times Employee shall
not make any disparaging written, verbal or non-verbal remarks regarding
Bridgetech, its affiliates, officers, directors, employees, agents or
representatives. Bridgetech agrees and acknowledges that all times Bridgetech
shall not make any disparaging written, verbal or non-verbal remarks regarding
the Employee. The foregoing notwithstanding, this Agreement shall not prevent
the Parties from responding accurately to inquiries from government agencies or
regulators or to any requests for information compelled by legal process.
GENERAL RELEASE
3. In consideration of the payments and undertakings described above and
in further consideration which is hereby acknowledged, the Parties to this
Agreement hereby release and forever discharge each other, their predecessors,
successors, assigns, affiliated companies, shareholders, administrators,
partners, officers, directors, consultants, agents and attorneys from any and
all claims and causes of action whatsoever, known or unknown, foreseen or
unforeseen, which any party has or may have by reason of any matter, cause or
thing whatsoever, from the beginning of the world to the day of this Agreement.
This Release includes but is not limited to any and all claims that could have
been asserted pursuant to the terms and conditions of the Employment Agreement
or the 39 Month Agreement. The generality of the foregoing notwithstanding, this
Agreement shall not release any claims which Employee may have related to any
stocks/shares issued to or acquired by Employee prior to the date of this
Agreement.
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SETTLEMENT AGREEMENT AND GENERAL RELEASE
4. The Parties understand and expressly agree that the General Release in
this Agreement extends to all claims of every nature and kind, known or unknown,
suspected or unsuspected, past, present, or future, that are not reserved herein
arising from or attributable to any conduct of the other party and (as
applicable) their successors, subsidiaries, parents, predecessors, affiliates,
and divisions, and (as applicable) their shareholders, owners, employees,
officers, directors, assigns, agents, representatives and attorneys, and that
any and all rights granted to the Parties under section 1542 of the California
Civil Code or any analogous state law or federal law or regulation, are hereby
expressly WAIVED. Said section 1542 of the California Civil Code 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.
ATTORNEYS' FEES
5. The Parties shall bear their own attorneys' fees and costs.
COOPERATION
6. Neither party nor individual referenced above shall take any
action or refrain from taking any action in a manner which is
inconsistent with the intent and spirit of this Agreement. All Parties
shall cooperate fully to implement the terms and conditions of this
Agreement. This Agreement sets forth the entire agreement between the
Parties hereto and fully supercedes any and all prior agreements or
understandings between the Parties pertaining to the subject matter
hereof. This Agreement may not be changed orally. It can only be
amended in a written document signed by the Parties.
CHOICE OF LAW
7. This Agreement shall be interpreted, construed and governed
by the laws of the State of California.
PRIOR CONSULTATION
8. In signing this Agreement, the Parties expressly warrant that
they have read and fully understood it. The Parties acknowledge that
this Agreement is voluntary and that no one is making or forcing any
party to enter into it. All Parties acknowledge that they have had an
opportunity to and have consulted with an attorney before signing it.
COUNTERPARTS
9. This Agreement may be executed in counterparts and, when each
party has signed and delivered at least one such counterpart, each
counterpart shall be deemed an original and all counterparts taken
together shall constitute one and the same agreement, which shall be
binding and effective as to all Parties. The Parties may exchange
signatures via facsimile and/or PDF or
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SETTLEMENT AGREEMENT AND GENERAL RELEASE
TIFF files via e-mail and such signatures shall have the same force and effect
as if in original ink.
PLAIN MEANING
10. This Agreement shall be interpreted in accordance with the
plain meaning of its terms.
DEFAULT
11. Bridgetech will be deemed to be in immediate default of this
Agreement if payment to the Employee under the 18 Month Agreement is
delayed more than 30 days in any month where payroll has been made to
any existing employee of Bridgetech. The remedy for such default shall
include, but will not be limited to, the reinstatement and/or issuance
to Employee of all stock options and/or warrants that Employee
relinquished his rights to pursuant to section 2(b) of this Agreement.
Such reinstatement and/or issuance must be at the same strike price
and pursuant to the same terms and conditions as the stock
options/warrants previously issued to the Employee, including but not
limited to providing Employee with 90 days after such reinstatement
and/or issuance to then exercise the stock options.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first above written.
Bridgetech Holdings International, Inc. Employee
By: /s/ Xxxxxx X. Xxxx III By: /s/ Xxxxx Xxxxxx
---------------------------------- --------------------------
Name Xxxxxx X. Xxxx III Xxxxx X. Xxxxxx
Its EVP & CFO
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SETTLEMENT AGREEMENT AND GENERAL RELEASE
EXHIBIT A
INDEPENDENT CONSULTING AGREEMENT
This Independent Consulting Agreement ("Agreement"), effective as of May 1, 2005
(the "Effective Date") is entered into by and between Bridgetech Holdings
International, Inc. (herein referred to as the "Company") and Xxxxx Xxxxxx, DBA
Small World Traders (herein referred to as the "Consultant")(Collectively, the
Company and Consultant shall be referred to herein as the "Parties").
RECITALS
WHEREAS, Company desires to retain the services of the Consultant on an as
needed basis following Xxxxx Xxxxxx'x resignation as an employee of the Company,
to assist the Company in developing and acquiring new business opportunities and
to consult with the Chairman concerning certain Company activities;
NOW THEREFORE, in consideration of the mutual promises and obligations set
forth in this Agreement, Consultant and the Company covenant and agree as
follows:
1. Term. Company shall retain the Consultant as an independent contractor to
assist the Company in developing and acquiring new business opportunities and to
consult with the Chairman concerning certain Company activities, beginning on
the Effective Date and continuing for a period of eighteen (18) months.
2. Duties of Consultant. The Consultant agrees that he will provide the
following consulting services (the "Services") as reasonably requested by the
Company during the term of this Agreement:
(i) Consult with and assist the Chairman, Xxxxxxx Xxxx, in identifying
appropriate new business opportunities and developing business plans to
acquire those business opportunities;
(ii) With the cooperation of the Company, maintain an awareness of the
Company's plans, strategy and personnel, as they may evolve during such
period;
(iii) At the Chairman's request, review business plans, strategies,
mission statements, budgets, proposed transactions and other plans for the
Company;
(iv) Provide historical information regarding the operations of the
Company and its predecessors;
(v) Provide litigation support as necessary, including through voluntary
testimony and affidavit, with regard to facts, events, or claims that
occurred or arose during Consultant's employment by the Company; and
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SETTLEMENT AGREEMENT AND GENERAL RELEASE
(vi) Otherwise consult with the Chairman regarding the Company's business
plans.
3. Allocation of Time and Energies. The Consultant shall provide the Services to
the Company in a diligent and professional manner and within a reasonable period
of time under the circumstances. The Company shall not be obligated to request
that the Consultant provide Services for any set period or amount of time during
the term of this Agreement.
4. Consulting Fees. In consideration for Consultant providing the Services and
for Consultant's release of claims related to Xxxxx Xxxxxx'x employment and
other obligations as set forth in this Agreement, during the twelve month term
of this Agreement the Company shall provide Consultant a monthly payment of
$15,000.00, to be paid on the first business day of each month.
5. Expenses. The Consultant shall be responsible for all of his primary expenses
(phone, mailing, faxing, labor, etc.), but not including extraordinary items
(travel and entertainment for the sole benefit of the Company). Extraordinary
expenses must be approved in advance by the Chairman in writing in order to be
considered for reimbursement.
6. Status as Independent Contractor. Consultant's engagement pursuant to this
Agreement shall be as independent contractor, and not as an employee, officer or
other agent of the Company. Consultant shall not represent or hold himself out
to be an employee of the Company. Neither the Company nor the Consultant
possesses the authority to bind the other in any agreements without the express
written consent of the entity to be bound. Consultant shall be responsible for
all employment and income taxes, FICA and all other employee-related payments
for Consultant and any of Consultant's employees or agents, and the Company
shall have no responsibility for the payment of such amounts or any financial
responsibility of any kind for Consultant except for payment of the Consulting
Fees set forth in Paragraph 4 above. Consultant agrees to maintain any business
or other licenses necessary to carry out Consultant's responsibilities under
this Agreement. Consultant, as an independent contractor, shall not be entitled
to participate in any vacation, medical or other benefits plan or any other
entitlements available to employees of the Company. Consultant shall carry out
Consultant's responsibilities under this Agreement independently and without
supervisory control by the Company, provided that Consultant agrees to comply
with all policies of the Company, including any and all ethical standards of
conduct.
7. Ownership. Consultant agrees that the Company shall have the exclusive right
and interest in all materials, lists, databases, and/or other work produced or
contributed by Consultant pursuant to this Agreement ("Work Product"), and that
Consultant shall retain no right or royalty interest in any such Work Product.
If any of the work performed by Consultant under this Agreement shall be deemed
at law to be within the categories of works set forth in the definition of a
"work made for hire," Consultant agrees that it shall be considered a work made
for hire. If not deemed to be "work made for hire," then Consultant hereby
assigns to the Company any and all copyright or other interest in such Work
Product. Under no circumstances, however, shall the Company have rights to any
materials, lists, databases and/or other work produced or contributed
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SETTLEMENT AGREEMENT AND GENERAL RELEASE
to by Consultant that was not produced pursuant to this Agreement, including but
not limited to work in the Nutraceutical or Cosmeceutical Supplements business
8. Confidentiality. Consultant agrees that during the term of this Agreement and
for a period of two (2) years after the expiration or termination of this
Agreement, he will not directly or indirectly disclose to any person or entity
or use or otherwise exploit for his own benefit or for the benefit of any other
person or entity, except as may be required pursuant to applicable law, any of
the Company's confidential business or proprietary information that he may have
acquired (whether or not developed or compiled by him) during the term of, in
the course of, or as a result of his performance of Services under this
Agreement; provided, however, that the term "confidential business or
proprietary information" does not include information that has become generally
available to the public, other than through unauthorized disclosure by the
Consultant. Further, with respect to any information that may constitute a trade
secret of the Company within the meaning of any applicable law, Consultant's
obligation not to disclose such information shall continue for so long as such
information shall be considered to constitute a trade secret under applicable
law.
If Consultant is compelled by law to make any disclosure of information that
otherwise would be prohibited by this Agreement, Consultant will give the
Company prompt notice thereof and will provide the Company with all reasonable
assistance necessary to enable the Company to obtain such protective orders or
other assurances as the Company shall deem appropriate for the protection of
such information.
9. Representations. Consultant represents that he is not required to maintain
any licenses and registrations under federal or any state regulations necessary
to perform the services set forth herein. Consultant acknowledges that, to the
best of its knowledge, the performance of the services set forth under this
Agreement will not violate any rule or provision of any regulatory agency having
jurisdiction over Consultant.
10. Legal Representation. In entering into this Agreement, neither party has
relied on any statements, explanations, representations, nor warranties of the
other party, other than those expressly set forth in this Agreement. The Parties
stipulate and agree that attorneys for each of the Parties have had an
opportunity to participate in the negotiation and drafting of this Agreement and
that any ambiguity in this Agreement will not be construed against any party.
11. Modification and Waiver. This Agreement may be modified only by a written
document signed by the Parties. No waiver of any of the terms of this Agreement
shall be valid unless in writing and signed by all parties to this Agreement. No
waiver with respect to any portion of this Agreement shall apply to any other
portion of the Agreement, and a waiver on one occasion shall not operate or be
construed as a waiver of the same or any other breach on a future occasion, nor
shall any waiver operate or be construed as a rescission of this Agreement. No
course of dealing by any party, nor any failure, omission, delay or forbearance
by any party in exercising such party's rights or remedies under this Agreement
shall be deemed a waiver of any such rights or remedies or a modification of
this Agreement. Any failure or forbearance by either of the Parties to exercise
any right or remedy with respect to enforcement of this Agreement or any
instrument executed in connection herewith shall not be construed as a waiver of
any such party's rights or
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SETTLEMENT AGREEMENT AND GENERAL RELEASE
remedies, nor shall such failure or forbearance operate to modify this Agreement
or such instruments in the absence of a written agreement as provided above.
12. Non-Assignability of Services. Consultant shall not assign his rights or
delegate his duties under this Agreement without the prior written consent of
the Company.
13. Non-Exclusivity of Services. During the term of this Agreement and
thereafter Consultant may provide services of a similar nature to other parties
as long as such services do not conflict with Consultant's obligations herein.
14. Notices.
(i) Requirement of Writing; Permitted Methods of Delivery. Each party
giving or making any notice, request, demand or other communication
(each, a "Notice") pursuant to this Agreement shall give the Notice
in writing and use one of the following methods of delivery, each of
which for purposes of this Agreement is a writing: personal
delivery, Registered or Certified Mail (in each case, return receipt
requested and postage prepaid), nationally recognized overnight
courier (with all fees prepaid), facsimile or e-mail.
(ii) Addressees and Addresses. Any party giving a Notice shall address
the Notice to the appropriate person at the receiving party (the
"Addressee") at the address listed on the signature page of this
Agreement or to another Addressee or another address as designated
by a party in a Notice pursuant to this Section.
(iii) Effectiveness of a Notice. Except as provided elsewhere in this
Agreement, a Notice is effective only if the party giving the Notice
has complied with subsections (a) and (b) and if the Addressee has
received the Notice.
15. Choice of Law. This Agreement shall be governed by, construed and
interpreted in accordance with the laws, rules and regulations of the State of
California.
16. Arbitration. Any controversy or claim arising out of or relating to this
Agreement, or the alleged breach thereof, or relating to activities or
remuneration under this Agreement, shall be settled by binding arbitration in
San Diego County, California, in accordance with the applicable rules of the
American Arbitration Association, Commercial Dispute Resolution Procedures, and
judgment on the award rendered by the arbitrator(s) shall be binding on the
Parties and may be entered in any court having jurisdiction.
17. Attorney's Fees. If any legal action or any arbitration or other proceeding
is brought for the enforcement or interpretation of this Agreement, or because
of an alleged dispute, breach, default or misrepresentation in connection with
or related to this Agreement, the successful or prevailing party shall be
entitled to recover reasonable attorneys' fees and other costs in connection
with that action or proceeding, in addition to any other relief to which it or
they may be entitled.
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SETTLEMENT AGREEMENT AND GENERAL RELEASE
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day
and year first above written.
AGREED TO:
COMPANY:
Bridgetech Holdings International, Inc.
By: /s/ Xxxxxx X. Xxxx III
-----------------------------------------
Name: Xxxxxx X. Xxxx III
Title: EVP & CFO
000 X. Xxx 000, Xxxxx 000
Xxxxxx Xxxxx, XX 00000
CONSULTANT:
By: /s/ Xxxxx Xxxxxx
-----------------------------------------
Xxxxx Xxxxxx/D. B. A. Small World Traders
Address: 000 X. Xxx 000, Xxxxx 000
Xxxxxx Xxxxx, XX 00000
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SETTLEMENT AGREEMENT AND GENERAL RELEASE
