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Exhibit 10.66FT
EMPLOYMENT CONTRACT
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release is made as of the 16th day of
September, 1999, between Xxxx Xxx Xxxxxxxx, a Wisconsin resident
("Xxxxxxxx"), and Futech Interactive Products, Inc., an Arizona corporation
("Futech").
RECITALS:
By this Settlement Agreement and Mutual Release, Xxxxxxxx and Futech
release all claims against each other arising out of that Employment Contract
dated December 31, 1997, and settle all claims for the consideration described
more fully below.
On December 31, 1997, Xxxxxxxx and Futech entered into an Employment
Contract whereby, inter alia, Xxxxxxxx would be employed as President of
Futech. Disputes arose between Xxxxxxxx and Futech, resulting in Futech's
termination of Xxxxxxxx' Employment Contract on September 22, 1998. Xxxxxxxx
subsequently brought suit in the Circuit Court for the State of Wisconsin,
Waukesha County on or about November 19, 1998. That action subsequently was
dismissed on the grounds that the Employment Contract required arbitration in
the State of Arizona, pursuant to the Rules of the American Arbitration
Association.
On August 18, 1999, and before the commencement of the arbitration
proceedings, the parties met with a mediator and agreed to resolve all
employment related claims on the terms set forth herein. Xxxxxxxx and Futech
both feel that they have valid claims and/or defenses, but appreciative of the
costs and risks of litigation, have agreed to enter into this Settlement
Agreement and Mutual Release.
TERMS:
1. Futech agrees to pay the total amount of one dollar ($1.00) to Xxxxxxxx in
full satisfaction of any and all payments claimed by Xxxxxxxx to be due
under the Employment Contract. Payment shall be made by wire transfer to
M&I Lakes County Bank, Milwaukee, Wisconsin, Routing Number 000000000 in
favor of Xxxx Xxx Xxxxxxxx, account number 00000000 on or before 5:00 p.m.,
Pacific Time, December 7, 1999.
2. In consideration for the payment described in Paragraph 1 above, Xxxxxxxx
hereby releases and discharges Futech, and Futech hereby releases and
discharges Xxxxxxxx, from (1) any and all claims, losses, damages, costs,
demands, fees and expenses of any kind whatsoever arising in any way under
or out of Xxxxxxxx' employment with Futech, including, without limitation,
any and all claims arising under or out of the Employment Contract and from
(2) all acts, and alleged acts and
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omissions of the parties whether before or after the termination of the
Employment Contract.
2.1 The mutual releases and all promises provided herein shall extend to, and
likewise bind, the parties' agents, assigns, employees, principals,
representatives, officers, directors, successors, heirs, personal
representatives and trustees.
2.2 The parties understand and agree that the scope of the mutual releases
provided for herein is general, and not limited, and includes all claims,
whether in contract or in tort, whether arising under statute or common
law, including, without limitation, claims for breach of contract and/or
fiduciary duty, negligence claims, personal injury and property damages of
any kind, punitive damages, loss of income and/or profits, taxable costs,
and attorneys' fees, whether now known or unknown, and all interest of any
kind on any said sums, including, without limitation, all consequences and
complications of claims, damages, and causes of action, even those that
may be and/or are presently unsuspected and/or undiscovered.
3 Xxxxxxxx has executed his resignation from the Board of Directors of
Futech, and delivered the resignation to Futech's counsel. Counsel shall
hold the resignation in trust until this Settlement Agreement is signed by
all parties. At that time, the resignation shall be delivered to Futech.
3.1 Notwithstanding the foregoing provision, Xxxxxxxx' resignation is
premised upon the complete payment of the sums identified in
Paragraph 1 above and in Paragraph 1 of the Agreement for Purchase
and Sale of Assets Settlement Agreement and Mutual Release. In the
event that full payments are not made by the dates set forth in said
Paragraphs, Xxxxxxxx shall have the right, at his sole discretion, to
revoke said resignation.
4 The terms of this Settlement Agreement and Mutual Release are not
admissible in any event in any arbitration proceeding which may occur
under Paragraph 6 below. In addition, the terms shall remain confidential,
except as the parties may be required by applicable law to disclose such
information or except in the case of a legal action commenced under
Paragraph 7, if full payment of all sums set forth in Paragraph 1 above is
made; and if such sums are not timely paid consistent with Paragraph 1
above, the parties shall be under no such confidentially obligation.
5 Each party agrees, in consideration of the payment set forth in Paragraph
1 above, and the mutual releases described in Paragraphs 2-2.2 above, not
to make, print, circulate, or distribute in any way any negative,
disparaging, inaccurate or harmful
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remarks, statements, memoranda or other negative or harmful communications
regarding the other party.
6 The parties recognize that full payment of the sum identified in Paragraph
1 above as well as that sum identified in the contemporaneously executed
Agreement for Purchase and Sale of Assets Settlement Agreement and Mutual
Release obviates the need for arbitration or any other legal proceeding.
However, subject to the option to commence an action for the exclusive
remedy set forth in Paragraph 7, the parties agree to arbitrate any and
all claims arising under the Employment Contract on an expedited
arbitration schedule in the event of a breach of either Settlement
Agreement and Mutual Release. Therefore, the parties agree that the
following arbitration schedule shall be followed:
6.1 An arbitration proceeding, conducted according to the rules of
the American Arbitration Association and before the Honorable
Judge Xxxxxx Xxxxxxxx, or such other arbitrator as the parties
may determine, shall commence no later than April 11, 2000, or
such later date as is convenient to the arbitrator and is close
in time to said date.
6.2 A pre-hearing conference with the arbitrator, to discuss and
establish dates for such exchange of information, exchange of
written discovery, and depositions as the parties may agree to,
shall be scheduled for December 21, 1999 or such later date as is
convenient to the arbitrator.
7 In the event of a breach of this Settlement Agreement and Mutual Release,
the non-breaching party shall have the option, as an alternative to
arbitration under Paragraph 6, to bring an action for the specific
performance of this Agreement, in which event the sole and exclusive
remedy shall be the payment of such sums or the performance of such other
obligations as are set forth in this Agreement. The successful party in
such action shall be entitled to an award of its/his reasonable attorneys'
fees and costs.
8 The parties recognize and agree that a breach of either or both this
Settlement Agreement or the contemporaneously executed Agreement for
Purchase and Sale of Assets Settlement Agreement and Mutual Release will
constitute a breach of both Settlement Agreements.
9 The parties recognize that Xxxxxxxx currently is in possession of a 1996
Jaguar XJ6, Serial No. XXXXX0000XX000000. The parties further recognize
that in consideration for the mutual promises exchanged herein, Futech
shall, immediately upon complete execution of the Settlement Agreements,
transfer to him such documents of title as may be necessary to transfer
the title to him or to his nominee.
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10 This Settlement Agreement and Mutual Release is entered into in compromise
of disputed claims and defenses. Nothing contained herein is intended in
any way to constitute an admission of breach of contract, or liability of
any kind of any party being released herein, all such liability being
expressly denied, nor is it intended for constitute a waiver of any claims
or defenses. The execution of this Settlement Agreement and Mutual Release
is not admissible and shall not be deemed relevant in the event of
arbitration.
11 This document shall be considered the product of mutual draftsmanship, and
shall not be considered the product of either party.
12 Arizona law shall apply to the interpretation of this Settlement Agreement
and Mutual Release. If suit shall be brought under Paragraph 7, suit shall
be brought in the Superior Court of the State of Arizona, in and for the
County of Maricopa.
13 The parties represent that each is authorized to enter into this Settlement
Agreement and Mutual Release.
14 The undersigned hereby acknowledge that they and each of them have made
such analysis and investigation of the facts as they deem appropriate, and
that they do not rely on any representation, warranty or assertion made to
them by the other or by anyone on the other's behalf, and they and each of
them declare that the terms of this Agreement have been completely read,
are fully understood and are voluntarily accepted.
15 This writing is intended by the parties as a final expression of their
agreement and is intended also as a complete and exclusive statement of the
terms and conditions of their agreement.
16 This Settlement Agreement and Mutual Release may be executed in several
counterparts, which, when taken together shall constitute a single
fully-executed Agreement.
FUTECH
/s/ Xxxx Xxx Xxxxxxxx by
___________________________________ __________________________________
Xxxx Xxx Xxxxxxxx its ____________________________
Dated this 16 day of September, 1999. Dated this __ day of __________, 1999.
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