SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS
This Settlement Agreement and General Release ("Release") is made as a
compromise between GLOBAL MED TECHNOLOGIES, INC., and all related companies and
divisions, and including its parent corporation(s), subsidiaries, shareholders,
officers, trustees, employees, past and present, successors, predecessors,
assigns, and agents ("GLOBAL") and XXXXXXX X. XXXXXXX and XXXXXX XXXXXX
("XXXXXXX/XXXXXX") in the complete, final, and binding settlement of all claims
and potential claims, if any, with respect to their present and past employment
and business relationships.
IN CONSIDERATION of the obligations identified below assumed by each of the
parties, it is hereby agreed by and between the parties that all disputes,
controversies, and potential disputes or causes of action or claims arising out
of, or in any way connected with XXXXXXX/XXXXXX' employment relationship with
GLOBAL, whether known or unknown, suspected or unsuspected, which XXXXXXX/XXXXXX
have or may have had against GLOBAL are settled on the following material terms:
1. Settlement Proceeds. GLOBAL will pay to Xx. XXXXXXX XXXXXXX the
following sums:
a. Xx. XXXXXXX'x last day of work will be November 20, 1998.
b. GLOBAL will pay Xx. XXXXXXX a portion of the settlement proceeds in
accordance with "Schedule 1" attached hereto and incorporated herein by
reference. Upon receiving monetary proceeds under a contract with the Australian
Red Cross Blood Service in a cumulative amount equal to TWO HUNDRED THOUSAND
DOLLARS AND NO/100 ($200,000.00), or if GLOBAL at any time after the date of
this agreement obtains equity financing for the company of a non-debt nature in
a cumulative amount equal to or greater than TWO MILLION FIVE HUNDRED THOUSAND
DOLLARS AND NO/100 ($2,500,000.00), the Schedule 1 monthly payments will
immediately be increased from THREE THOUSAND DOLLARS AND NO/100 ($3,000.00) to
SIX THOUSAND DOLLARS AND NO/100 ($6,000.00) until the total SIXTY-FOUR THOUSAND
TWO HUNDRED THIRTY DOLLARS AND 77/100 ($64,230.77) has been paid to Xx. XXXXXXX.
C. GLOBAL will pay Xx. XXXXXXX the balance of the settlement proceeds
in accordance with "Schedule 2", attached hereto and incorporated herein by
reference.
d. Upon receiving written notice from GLOBAL that the GLOBAL MED
TECHNOLOGIES, INC., shares have reached FOUR DOLLARS AND NO/100 ($4.00) or more
per share, and so long as XXXXXXX/XXXXXX can sell their shares at FOUR DOLLARS
AND NO/100 ($4.00) or more per share, XXXXXXX/XXXXXX agree to immediately
(within 7 days of receiving GLOBAL's written notice) sell a minimum of 40,600
shares stock of GLOBAL in which they own or have an interest, in an orderly
manner through American Frontier Financial Corporation or its subsidiary (in
accordance with the agreement existing between GLOBAL and RAF). The gross
proceeds from such a sale of stock will be (subject to paragraph e next below)
credited towards and reduce any amounts not yet due but which are scheduled to
be paid by GLOBAL to Xx. XXXXXXX in accordance with Schedule 2, as if it had
been paid by GLOBAL. If XXXXXXX/XXXXXX voluntarily sell stock of GLOBAL which
they own or have an interest in at any time after the date of this Agreement for
TWO DOLLARS AND 50/100 ($2.50) or more per share, XXXXXXX/XXXXXX will notify
GLOBAL in writing within fifteen (15) days of such sale and the gross proceeds
from such a sale of stock will be (subject to paragraph e next below) credited
towards and reduce any amounts not yet due but which are scheduled to be paid by
GLOBAL to Xx. XXXXXXX in accordance with Schedule 2, as if it had been paid by
GLOBAL.
e. Xx. XXXXXXX will receive all Schedule 1 payments, and payments of
at least $75,000 in accordance with Schedule 2, without offset regardless of
whether or not XXXXXXX/XXXXXX ever sell their stock of GLOBAL.
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f. If Xx. XXXXXXX dies before all payments provided for in Schedule 1
and Schedule 2 have been paid in full, all scheduled payments shall continue to
be paid to the then acting trustee of the X. X. AND X. XXXXXXX 1997 TRUST,
established July 11, 1997, or to the trustee of any successor or replacement
trust thereof.
g. If any of the events listed in this paragraph g occur, Xx. XXXXXXX
or his successor in interest may declare the entire unpaid balances of all
payments provided for in Schedule 1 and Schedule 2 to be made by GLOBAL to Xx.
XXXXXXX, to be immediately all due and payable, and GLOBAL shall then pay that
amount upon demand.
(i) GLOBAL fails to make any payment set forth in Schedule 1 or
Schedule 2 when due and has not cured such failure to pay within a fifteen (15)
day period commencing with written notice from Xx. XXXXXXX or his successor in
interest to GLOBAL of such missed payment. Any missed payment shall bear
interest at the highest rate allowed under California Law from the date that
such missed payment was due until paid in full.
(ii) GLOBAL sells substantially all of its assets or merges,
consolidates or combines with any other business entity unless the acquiring,
succeeding or continuing corporation or business entity expressly assures and
confirms in writing the obligations of GLOBAL under this Agreement.
(iii) GLOBAL decides to terminate its business.
h. Xx. XXXXXXX or his successor in interest may hire or pay any person
or entity to help collect GLOBAL's obligations hereunder if GLOBAL does not pay.
GLOBAL shall also pay to Xx. XXXXXXX or his successor in interest the costs of
collection. Such costs include, subject to any limits under applicable law,
attorneys' fees and other legal expenses including court costs whether or not
there is a lawsuit.
i. It is understood GLOBAL may not be withholding payroll taxes or
other withholdings from payments made to Xx. XXXXXXX. Such payments will be
issued with an IRS 1099 Form. If any employer [/s/TM;/s/WJC] payroll taxes are
assessed, it is the responsibility of GLOBAL to pay such assessment.
2. References. GLOBAL agrees that Xx. XXXXXXX will receive a favorable
recommendation if any prospective employer should request a recommendation. Xx.
XXXXXXX will refer all prospective employers to Xx. Xxxx Xxxxx as GLOBAL's
point of contact for such references.
3. Announcement of Termination. GLOBAL agrees to make a general
announcement between February 4 and February 11, 1999, through standard company
distribution channels to other employees of the company at the Rancho Xxxxxxx
office that Xx. XXXXXXX has elected to leave the company by retiring. During the
period between Xx. XXXXXXX'x last day of work on November 20, 1998 and February
4, 1999, Xx. XXXXXXX shall be allowed to enter his office in order to pick up
mail, e-mail and phone messages. Xx. XXXXXXX'x termination date shall be
February 4, 1999 unless extended by written agreement by and between Xx. XXXXXXX
and GLOBAL. During the period between Xx. XXXXXXX'x last day of work on November
20, 1998 and February 4, 1999, Xx. XXXXXXX shall be allowed to seek and accept
employment with any person, firm, corporation, association or other entity
provided that such person, firm, corporation, association or other entity is not
a business which is in direct competition with the type of business conducted by
GLOBAL.
4. Confidentiality. XXXXXXX/XXXXXX and GLOBAL agree that the events
leading to this Release, the fact of the Release, and the terms and conditions
of the Release are and shall be maintained in privacy and confidence. The
parties agree that this confidentiality is a material term of the Release.
Without waiving their agreement concerning confidentiality, the parties agree
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that the information regarding the monetary terms of this settlement may be
disclosed to any state or federal taxing authority or pursuant to any state or
federal securities law, regulations, or procedure as required by law. Further,
GLOBAL may disclose the terms and conditions of this agreement as necessary to
implement and comply with the agreement. Such disclosure shall not be deemed a
breach of this Release. Nothing in this paragraph is intended to restrict
XXXXXXX/XXXXXX from communicating with prospective employers and job referral
sources about their job experiences at GLOBAL, the nature and extent of their
job responsibilities, their level of performance, the dates of their employment,
and the fact that they resigned voluntarily for retirement and personal reasons
respectively. Both XXXXXXX/XXXXXX and GLOBAL agree that they will do nothing to
disparage the other in any communications after the date of this Release.
5. Release of GLOBAL. In addition to the terms above, and subject to
GLOBAL's obligations created in this Agreement including the obligation to
indemnify XXXXXXX/XXXXXX in accordance with Section 10 below, XXXXXXX/XXXXXX, on
behalf of their heirs, spouses, and assigns, hereby completely release and
forever discharge GLOBAL from any and all claims, of any and every kind, nature
and character, known or unknown, foreseen or unforeseen, based on any act or
omission occurring before the date of their signing this Release, including any
claims arising out of any offer of employment or employment or termination of
employment with GLOBAL and any claims they have as shareholders, directors,
officers, owners, or lenders to GLOBAL. The matters released include any claims
under federal, state or local laws, including any claims arising under the Age
Discrimination in Employment Act of 1967, Title VII of the Civil Rights Act of
1964, the California Fair Employment and Housing Act, any common law tort or
contract claims, and any claims for attorneys fees and costs.
It is understood and agreed that this Release extinguishes all claims,
whether known or unknown, foreseen or unforeseen.
XXXXXXX/XXXXXX expressly waive any rights or benefits under California Civil
Code section 1542, which provides 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 to him must have materially
affected his settlement with the debtor."
XXXXXXX/XXXXXX fully understand that, if any fact with respect to any
matter covered by this Release is found hereafter to be other than or different
from the facts now believed by them to be true, they expressly accept and assume
that this Release shall be and remain effective, notwithstanding such
differences in the facts.
XXXXXXX/XXXXXX agree neither to file nor to encourage or knowingly permit
another to file any claim, charge, action, or complaint concerning any matter
referred to in this Release. if either or both XXXXXXX/XXXXXX have previously
filed any such claim, they agree to take all reasonable steps to cause it to be
withdrawn without any further delay.
This Release constitutes the entire agreement between XXXXXXX/XXXXXX and
GLOBAL with respect to any matters referred to in this Release. This Release
supersedes any and all of the other agreements between XXXXXXX/XXXXXX and
GLOBAL. No other consideration, agreements, representation, oral statements,
understandings of course of conduct that are not expressly set forth in this
Release should be implied or are binding. XXXXXXX/XXXXXX are not relying upon
any other agreement, representation, statement, omission, understanding or
course of conduct that is not expressly set forth in this Release.
XXXXXXX/XXXXXX understand and agree that this Release shall not be deemed or
construed at any time or for any purposes as an admission of any liability or
wrongdoing by either XXXXXXX/XXXXXX or GLOBAL. XXXXXXX/XXXXXX also agree that if
any provision of this [deletion /s/TM; /s/WFC] Release is deemed invalid, the
remaining provisions will still be given full force and effect.
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Prior to execution of this Release, XXXXXXX/XXXXXX have apprised themselves
of sufficient relevant information in order that they might intelligently
exercise their own judgment. GLOBAL has informed XXXXXXX/XXXXXX in writing to
consult an attorney before signing this Release, if they wish. GLOBAL has also
given XXXXXXX/XXXXXX at least twenty-one (21) days in which to consider this
Release, if they wish. XXXXXXX/XXXXXX also understand that for a period of seven
(7) days after they sign this Release XXXXXXX/XXXXXX may revoke this release
agreement and that the Release shall not become effective until a week from
signatures by XXXXXXX/XXXXXX.
XXXXXXX/XXXXXX have read this Release and understand all of its terms.
XXXXXXX/XXXXXX further acknowledge and agree that this Release is executed
voluntarily, without coercion, and with full knowledge of its significance.
XXXXXXX/XXXXXX also understand and agree that if any suit is brought to enforce
the provisions of this Release, the prevailing party shall be entitled to costs,
expenses, and attorneys' fees as well any and all other remedies.
6. Release of XXXXXXX/XXXXXX. GLOBAL subject to XXXXXXX/XXXXXX obligations
created in this Agreement including the obligations of XXXXXXX/XXXXXX set forth
in Sections 7, 8 and 9 below, hereby completely releases and forever discharges
XXXXXXX/XXXXXX jointly and severally from any and all claims, of any and every
kind, nature and character, known or unknown, foreseen or unforeseen, based on
any act or omission of either of XXXXXXX/XXXXXX, including but not limited to
any claims arising out of any act by either XXXXXXX/XXXXXX as an officer,
director, employee, agent, representative or shareholder, or owner of, or
borrower from GLOBAL. The matters released include any claims under federal,
state or local laws, any common law tort or contract claims, and any claims for
attorneys fees and costs.
It is understood and agreed that this Release extinguishes all claims,
whether known or unknown, foreseen or unforeseen. GLOBAL expressly waives any
rights or benefits under California Civil Code section 1542, which provides 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 to him must have materially
affected his settlement with the debtor."
GLOBAL fully understands that, if any fact with respect to any matter
covered by this Release is found hereafter to be other than or different from
the facts now believed by GLOBAL to be true, GLOBAL expressly accepts and
acknowledges that this Release shall be and remain effective, notwithstanding
such differences in the facts.
GLOBAL agrees neither to file nor to encourage or knowingly permit another
to file any claim, charge, action, or complaint concerning any matter referred
to in this Release. If GLOBAL has previously filed any such claim, GLOBAL shall
take all reasonable steps to cause it to be withdrawn without any further delay.
GLOBAL is not relying upon any other agreement, representation,
statement, omission, understanding or course of conduct that is not expressly
set forth in this Release. GLOBAL understands and agrees that this Release shall
not be deemed or construed at any time or for any purposes as an admission of
any liability or wrongdoing by either XXXXXXX/XXXXXX or GLOBAL. GLOBAL also
agrees that if any provision of this Settlement Agreement and Release is deemed
invalid, the remaining provisions will still be given full force and effect.
7. Agreement to Maintain Trade Secrets. Confidences, and Proprietary
Materials.
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x. XXXXXXX/XXXXXX acknowledge that during the course of their
employment with GLOBAL, they received or became aware of trade secrets,
confidential information, and proprietary material. XXXXXXX/XXXXXX agree to
return to GLOBAL no later than January 4, 1999, any and all material,
information, documents, or electronically stored information which is a trade
secret, confidential or proprietary. XXXXXXX/XXXXXX agree to maintain in
confidence all trade secrets, confidential information, and proprietary material
relating to GLOBAL, and to not disclose said trade secrets, confidential
information, and proprietary material relating to GLOBAL to any third party
without the written consent of GLOBAL. Both parties acknowledge that said trade
secrets, confidential information, and proprietary material relating to GLOBAL
are material to the financial well-being of GLOBAL and, thus, this provision is
material to this agreement.
x. XXXXXXX/XXXXXX recognize and acknowledge that the information,
processes, developments, experimental work, work in progress, business, list of
GLOBAL's customers and any other trade secret or other secret or confidential
information relating to GLOBAL's business as they may exist from time to time
are valuable, special and unique assets of GLOBAL's business. Therefore,
XXXXXXX/XXXXXX agree that:
(i) XXXXXXX/XXXXXX will hold in strictest confidence and not
disclose, reproduce, publish or use in any manner without the express
authorization of the Board of Directors of GLOBAL, any information, process,
development or experimental work, work in process, business, customer lists,
trade secret or any other secret or confidential matter relating to any aspect
of GLOBAL's business.
(ii) XXXXXXX/XXXXXX will deliver to GLOBAL, and not keep or
deliver to anyone else, any and all notes, memoranda, documents and, in general,
any and all material relating to the GLOBAL's business.
(iii) In the event of a breach or threatened breach by
XXXXXXX/XXXXXX of the provisions of this Paragraph b., GLOBAL shall be entitled
to an injunction (1) restraining XXXXXXX/XXXXXX from disclosing, in whole or in
part, any information as described above or from rendering any services to any
person, firm, corporation, association or other entity to whom such information,
in whole or in part, has been disclosed or is threatened to be disclosed,
provided that such person, firm, corporation, association or other entity is in
business or intends to do business which is in direct competition with the type
of business conducted by GLOBAL; and/or (2) requiring that XXXXXXX/XXXXXX
deliver to GLOBAL all information, documents, notes, memoranda and any and all
discoveries or other material as specifically identified in a written request by
GLOBAL delivered to XXXXXXX/XXXXXX on or before December 31, 1998.
c. For a period beginning with the date of this Agreement and ending
March 23, 2002, Xx. XXXXXXX will not, within the State of Colorado (or, even
though the parties agree that such limitation is reasonable, if such locations
are determined by a court to be too broad, such geographic area as such court
may determine is reasonable) directly or indirectly, own, manage, operate,
control, be employed on a full time basis in a managerial capacity by,
participate in or be connected in any manner with the ownership, management,
operation or control of any business in direct competition with the type of
business conducted by GLOBAL. In the event of an actual or threatened breach by
XXXXXXX/XXXXXX of the provisions of this paragraph, GLOBAL shall be entitled to
seek an injunction restraining XXXXXXX/XXXXXX from owning, managing, operating,
controlling, being employed by, participating in or being in any way so
connected with any business in direct competition with the type of business
conducted by GLOBAL during the term of this Agreement.
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8. Nonsolicitation of XXXXXXX/XXXXXX. For a period of twenty-four (24)
months beginning November 20, 1998 or for as long as GLOBAL makes monthly
payments pursuant to Schedule 1 and Schedule 2, whichever is longer,
XXXXXXX/XXXXXX shall not directly or indirectly, either alone or in concert with
others, solicit, or entice any employee of or consultant to GLOBAL to leave
GLOBAL or work for anyone in competition with GLOBAL.
9. Nonsolicitation of Customers. For a period of twenty-four (24)
months beginning November 20, 1998 or for as long as GLOBAL makes monthly
payments pursuant to Schedule 1 and Schedule 2, whichever is longer,
XXXXXXX/XXXXXX shall not directly or indirectly, either alone or in concert with
others, solicit, entice or in any way divert any of GLOBAL's existing customers
or suppliers or potential customers or suppliers with whom XXXXXXX/XXXXXX had
become acquainted while employed with GLOBAL, to do business with any business
in direct competition with GLOBAL.
10. Indemnification. To the fullest extent permitted by applicable
law, GLOBAL agrees to indemnify, defend and hold XXXXXXX/XXXXXX, jointly and
severally, harmless from any and all claims, actions, costs, expenses, damages
and liabilities, including, without limitation, reasonable attorneys' fees,
hereafter or heretofore arising out of or in connection with activities of
GLOBAL or its employees, including XXXXXXX/XXXXXX, or other agents in connection
with or by reason of the fact that either XXXXXXX/XXXXXX was a director,
officer, employee, or agent of GLOBAL or any affiliate of GLOBAL. To the fullest
extent permitted by applicable law, GLOBAL shall pay as incurred expenses of
defending any such action, claim or proceeding. However, GLOBAL shall not
indemnify XXXXXXX/XXXXXX or defend XXXXXXX/XXXXXX against, or hold
XXXXXXX/XXXXXX harmless from any claims, damages, expenses or liabilities,
including attorneys' fees, resulting from the gross negligence or willful
misconduct of XXXXXXX/XXXXXX.
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I have read the foregoing and understand, approve and voluntarily
agree to the terms of the Release.
Dated: 12/22/98.
/s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------------
XXXXXXX X. XXXXXXX
I have read the foregoing and understand, approve and voluntarily
agree to the terms of the Release.
Dated: 12/22/98.
/s/ Xxxxxx Xxxxxx
-------------------------------------------------
XXXXXX XXXXXX
I have read the foregoing and understand, approve and voluntarily
agree to the terms of the Release.
Dated: 12/31/98.
/s/ Xxxxxx X. Xxxxxxxx for
-------------------------------------------------
By: GLOBAL MED TECHNOLOGIES, INC.
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SCHEDULE 1
Month of Payment Payment Month of Payment Payment
Amount Amount
December 30, 1998 $3,000.00 January 1, 2000 $3,000.00
January 1, 1999 $3,000.00 February 1, 2000 $3,000.00
February 1, 1999 $3,000.00 March 1, 2000 $3,000.00
March 1, 1999 $3,000.00 April 1, 2000 $3,000.00
April 1, 1999 $3,000.00 May 1, 2000 $3,000.00
May 1, 1999 $3,000.00 June 1, 2000 $3,000.00
June 1, 1999 $3,000.00 July 1, 2000 $3,000.00
July 1, 1999 $3,000.00 August 1, 2000 $3,000.00
August 1, 1999 $3,000.00 September 1, 2000 $1,230.77
September 1, 1999 $3,000.00
October 1, 1999 $3,000.00
November 1, 1999 $3,000.00
December 1, 1999 $3,000.00
TOTAL $64,230.77
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SCHEDULE 2
Month of Payment Payment Month of Payment Payment
Amount Amount
December 30, 1998 $6,250.00 September 1, 2000 $5,416.67
January 1, 1999 $6,250.00 October 1, 2000 $5,416.67
February 1, 1999 $6,250.00 November 1, 2000 $5,416.67
March 1, 1999 $6,250.00 December 1, 2000 $5,416.67
April 1, 1999 $6,250.00 January 1, 2001 $5,416.67
May 1, 1999 $6,250.00 February 1, 2001 $5,416.67
June 1, 1999 $6,250.00 March 1, 2001 $5,416.67
July 1, 1999 $6,250.00 April 1, 2001 $5,416.67
August 1, 1999 $6,250.00 May 1, 2001 $5,416.67
September 1, 1999 $6,250.00 June 1, 2001 $5,416.67
October 1, 1999 $6,250.00 July 1, 2001 $5,416.67
November 1, 1999 $6,250.00 August 1, 2001 $5,416.67
December 1, 1999 $5,416.67 September 1, 2001 $5,416.67
January 1, 2000 $5,416.67 October 1, 2001 $5,416.67
February 1, 2000 $5,416.67 November 1, 2001 $5,416.67
March 1, 2000 $5,416.67 December 1, 2001 $5,416.67
April 1, 2000 $5,416.67 January 1, 2002 $5,416.67
May 1, 2000 $5,416.67 February 1, 2002 $5,416.67
June 1, 2000 $5,416.67 March 1, 2002 $5,416.67
July 1, 2000 $5,416.67 April 1, 2002 $5,416.67
August 1, 2000 $5,416.67 May 1, 2002 $5,416.67
TOTAL $237,500.10
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