Exhibit 10.13
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release ("Agreement") is made by
and between Landacorp, Inc. (the "Company") and Xxxxx X. Xxxx ("Employee") as
of June 20, 2001 (the - "Effective Date"). .
WHEREAS, Employee was employed by the Company; and
WHEREAS, the Company and Employee have mutually agreed to terminate
the employment relationship and to release each other from any claims arising
from or related to the employment relationship;
NOW THEREFORE, in consideration of the mutual promises made herein,
the Company and Employee (collectively referred to as "the Parties") hereby
agree as follows:
1. Resignation. Employee resigned from his position as the Company's
Chief Technology Officer and Chief Marketing Officer as of the Effective Date.
2. Consideration.
(a) During the 9-month period following the Effective Date
(the "Payment Period"), the Company agrees to pay Employee at the rate of
$16,045.22 per month (including that portion of the Vacation Payment Amount (as
defined herein) to be paid to Employee in installments during the Payment
Period in accordance with Section 2(b)), less applicable withholding, in
accordance with the Company's payroll practices.
(b) All of Employee's accrued vacation and personal days as
of the Effective Date, totaling the sum of $100,414 less applicable
withholding, shall be deemed the "Vacation Payment Amount." Fifty percent of
the Vacation Payment Amount shall be paid to Employee on the Effective Date.
The remaining Vacation Payment Amount shall be paid to Employee in equal
installments during the Payment Period, in accordance with the Company's
payroll practices.
(c) For a minimum of 12 months following the Effective Date
Employee Company agrees to retain Employee, and Employee agrees to act as a
consultant whenever requested by the, Company's Chief Executive Officer, and
provide the Company with services requested by the Company as may be directed
by the Company, including but not limited to, providing advice, strategic and
structural analysis and implementation and managing specified projects. Such
consulting services shall be rendered at mutually agreeable times, not to
exceed five days per calendar month without the prior written consent of
Employee, and may be rendered by telephone, electronically or in person, as
agreed by the parties. Employee acknowledges that attending meetings,
developing written plans and reports, managing personnel, and participating in
joint discussions with customers and potential customers are included in the
services to be provided by Employee in his continuing role as a consultant to
the Company. The Company agrees to pay Employee at a rate of $2,000 for each
day or portion thereof that Employee provides such service at the request of
the Company's Chief Executive Officer; provided, however, that the initial 10
days of consulting services shall be provided by Employee to the Company at no
cost. The Company will
reimburse Employee for any reasonable expenses incurred by Employee in
connection with his provision of the consulting services to the Company in
accordance with the Company's then existing expense reimbursement policies
applicable to senior executives. This consulting relationship shall terminate
automatically on the first anniversary of this Agreement unless earlier
terminated by Employee on 30 days' prior written notice.
(d) Options.
(i) Effective the date hereof, all of Employee's
195,000 shares of Company Common Stock subject to a repurchase right in favor
of the Company shall be released from such repurchase right.
(ii) Effective the date hereof, 37,500 of Employee's
50,000 options granted on March 1, 1999 (the "March 1999 Options") to purchase
shares of Company Common Stock shall be deemed fully vested and immediately
exercisable. The remaining 12,500 March 1999 Options shall vest at the rate of
1/12`h thereof monthly hereafter while Employee maintains a consulting
relationship with the Company. If Employee ceases to be a service provider to
the Company, (A) the remaining March 1999 Options will cease to vest
immediately, and (B) Employee may exercise any vested March 1999 Options within
30 days of such termination. If Employee does not exercise the Options within
30 days after he ceases to be a service provider to the Company, the Options
shall terminate and the shares of Company Common Stock covered by such Options
shall revert to the Company's 1998 Equity Incentive Plan (the "Plan"). The
exercise of any stock options shall continue to be subject to the terms and
conditions of the Plan and the applicable Stock Option Agreement between
Employee and the Company.
(iii) As of the Effective Date, all of Employee's
50,000 options granted on October 31, 2000 shall be deemed expired. Employee
hereby consents to such expiration and agrees to execute and deliver to the
Company such. additional documentation as shall be necessary to carry out the
foregoing.
(iv) As of the Effective Date, $26,323.62,
representing all principal and interest under any loans, notes or other
instruments payable by Employee to the Company shall be deemed due and owing to
the Company. Employee hereby consents to the foregoing and agrees that all
amounts owed thereunder shall be deducted from the portion of the Vacation
Payment Amount to be paid to employee on the Effective Date pursuant to Section
2(b) above. Employee further agrees to execute and deliver to the Company such
additional documentation as shall be necessary to carry out the foregoing.
3. Confidential Information. Employee shall continue to maintain the
confidentiality of all confidential and proprietary information of the Company
and shall continue to comply with the terms and conditions of the Employee
Proprietary Information and Inventions Agreement, dated February 26, 1998, by
and between Employee and Xxxxx Management Systems, the Company's predecessor.
Employee shall return all the Company property and confidential and proprietary
information in his possession to the Company on the Effective Date; provided,
however, (i) Employee may retain his laptop computer and all software existing
on the hard drive thereof at the Effective Date, which has been paid for by the
Company, and (ii) Employee may retain confidential
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corporate documents appropriate for conducting activities as a member of the
Board of Directors and as a consultant to Landacorp.
4. Vacate Offices of Company. Employee hereby agrees to vacate the
Company's offices located at 000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxx, Xxxxxxxxxx
00000 within thirty (30) business days following the Effective Date.
5. Payment of Salary. Except for payments to be made by the Company
pursuant to Section 2 above, Employee acknowledges and represents, that the
Company has paid all salary, wages, bonuses, accrued vacation, commissions and
any and all other benefits due to Employee.
6. Release of Claims. Employee agrees that the consideration set forth
in Section 2 above represents settlement in full of all outstanding obligations
owed to Employee by the Company. Employee and the Company, for his or its part
separately and collectively, on behalf of themselves, and their respective
heirs, family members, executors, officers, directors, employees, investors,
attorneys, shareholders, administrators, affiliates, divisions, subsidiaries,
predecessor and successor corporations, and assigns, shall and hereby do fully
and forever release each other and their respective heirs, family members,
executors, officers, directors, employees, investors, attorneys, shareholders,
administrators, affiliates, divisions, subsidiaries, predecessor and successor
corporations, and assigns, from, and agree not to xxx concerning, any claim,
duty, obligation or cause of action relating to any matters of any kind,
whether presently known or unknown, suspected or unsuspected, as a result of
things undertaken, done, said, stated, done or admitted to be done, that any of
them may possess arising from any omissions, acts or facts that have occurred
up until and including the date of this Agreement including, without
limitation:
(a) any and all claims relating to or arising from Employee's
employment relationship with the Company and the termination of that
relationship;
(b) any and all claims relating to, or arising from,
Employee's right to purchase, or actual purchase of shares of stock of the
Company, including, without limitation, any claims for fraud,
misrepresentation, breach of fiduciary duty, breach of duty under applicable
state corporate law, and securities fraud under any state or federal law; that
have occurred up to the Effective Date only;
(c) any and all claims for wrongful discharge of employment;
constructive termination; termination in violation of public policy;
discrimination; breach of contract, both express and implied; breach of a
covenant of good faith and fair dealing, both express and implied; promissory
estoppel; negligent or intentional infliction of emotional distress; negligent
or intentional misrepresentation; negligent or intentional interference with
contract or prospective economic advantage; unfair business practices;
defamation; libel; slander; negligence; personal injury; assault; battery;
invasion of privacy; false imprisonment; and conversion; that have occurred up
to the Effective Date only;
(d) any and all claims for violation of any federal, state or
municipal statute, including, but not limited to, Title VII of the Civil Rights
Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in Employment
Act of 1967, the Americans with Disabilities Act of 1990, the
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Fair Labor Standards Act, the Employee Retirement Income Security Act of 1974,
the Worker Adjustment and Retraining Notification Act, Older Workers Benefit
Protection Act, the California Fair Employment and Housing Act, and Labor Code
section 201, et seq. and section 970, et seq.;
any and all claims for violation of the federal, or any state, constitution;
(f) any and all claims arising out of any other laws and
regulations relating to employment or employment discrimination; and
(g) any and all claims for attorneys' fees and costs.
The Company and Employee agree that the release set forth in this
section shall be and remain in effect in all respects as a complete general
release as to the matters released. Notwithstanding the foregoing or Section 9
below, nothing herein shall be deemed to be a release or agreement not to xxx
of one party with respect to any claim, duty, obligation or cause of action
relating to Employee's ownership of securities of the Company and/or facts,
events or circumstances arising after the date hereof. This release does not
extend to any obligations incurred under this Agreement.
7. Acknowledgment of Waiver of Claims under ADEA. Employee
acknowledges that he is waiving and releasing any rights he may have under the
Age Discrimination in Employment Act of 1967 ("ADEA") and that this waiver and
release is knowing and voluntary. Employee and the Company agree that this
waiver and release does not apply to any rights or claims that may arise under
ADEA after the Effective Date of this Agreement. Employee acknowledges that the
consideration given for this waiver and release Agreement is in addition to
anything of value to which Employee was already entitled. Employee further
acknowledges that he has been advised by this writing that (a) he should
consult with an attorney prior to executing this Agreement; (b) he has at least
twenty-one (21) days within which to consider this Agreement; (c) he has at
least seven (7) days following the execution of this Agreement by the parties
to revoke the Agreement; and (d) this Agreement shall not be effective until
the revocation period has expired.
8. Civil Code Section 1542. The Parties represent that they are not
aware of any claim by either of them other than the claims that are released by
this Agreement. Employee and the Company acknowledge that they have been
advised by legal counsel and are familiar with the provisions of 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 BY HIM MUST
HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
Employee and the Company, being aware of said code section, agree to
expressly waive any rights they may have thereunder, as well as under any other
statute or common law principles of similar effect.
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9. No Pending or Future Lawsuits. Employee represents that he has no
lawsuits, claims, or actions pending in his name, or on behalf of any other
person or entity, against the Company or any other person or entity referred to
herein. Employee also represents that he does not presently intend to bring any
claims on his own behalf or on behalf of any other person or entity against the
Company or any other person or entity referred to herein.
10. Application for Employment. Employee understands and agrees that,
as a condition of this Agreement, he shall not be entitled to any employment
with the Company, its subsidiaries, or any successor, and he hereby waives any
right, or alleged right, of employment or re-employment with the Company.
Employee further agrees that he will not apply for employment-with the Company,
its subsidiaries or related companies, or any successor.
11. Confidentiality. The Parties hereto each agree to use their best
efforts to maintain in confidence the existence of this Agreement, the contents
and terms of this Agreement, and the consideration for this Agreement
(hereinafter collectively referred to as "Settlement Information"). Each Party
hereto agrees to take every reasonable precaution to prevent disclosure of any
Settlement Information to third parties, and each agrees that there will be no
publicity, directly or indirectly, concerning any Settlement Information. The
Parties hereto agree to take every precaution to disclose Settlement
Information only to those employees, officers, directors, attorneys,
accountants, governmental entities, and family members who have a reasonable
need to know of such Settlement Information, and as, in the reasonable opinion
of counsel, as may be required by law.
12. No Cooperation. Employee agrees that he will not counsel or assist
any attorneys or their clients in the presentation or prosecution of any
disputes, differences, grievances, claims, charges, or complaints by any third
party against the Company and/or any officer, director, employee, agent,
representative, shareholder or attorney of the Company for any events that have
taken place prior to the Effective date, unless, in the reasonable opinion of
counsel he is required by law to do so.
13. Non-Disparagement. Each party agrees to refrain from any
defamation, libel or slander of the other, or tortious interference with the
contracts and relationships of the other. All inquiries by potential future
employers of Employee will be directed to the Company's Vice President of Human
Resources. Upon inquiry regarding the Employee's employment relationship with
the Company, the Company shall only provide the information set forth in
Exhibit A annexed hereto.
14. No Admission of Liability. No action taken by the Parties hereto,
or either of them, either previously or in connection with this Agreement shall
be deemed or construed to be (a) an admission of the truth or falsity of any
claims heretofore made or (b) an acknowledgment or admission by either party of
any fault or liability whatsoever to the other party or to any third party.
15. Costs. The Parties shall each bear their own costs, expert fees,
attorneys' fees and other fees incurred in connection with this Agreement.
16. Arbitration. The Parties agree that any and all disputes arising
out of the terms of this Agreement, their interpretation, and any of the
matters herein released, shall be subject to binding arbitration in Sacramento,
California before the American Arbitration Association under its California
Employment Dispute Resolution Rules, or by a judge to be mutually agreed upon.
The
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Parties agree that the prevailing party in any arbitration shall be entitled to
injunctive relief in any court of competent jurisdiction to enforce the
arbitration award. The Parties agree that the prevailing party in any
arbitration shall be awarded its reasonable attorney's fees and costs.
17. Authority. The Company represents and warrants that the
undersigned has the authority to act on behalf of the Company and to bind the
Company and all who may claim through it to the terms and conditions of this
Agreement. Employee represents and warrants that he has the capacity to act on
his own behalf and on behalf of all who might claim through him to bind them to
the terms and conditions of this Agreement. Each Party warrants and represents
that there are no liens or claims of lien or assignments in law or equity or
otherwise of or against any of the claims or causes of action released herein.
18. No Representations: Each party represents that it has had the
opportunity to consult with an attorney, and has carefully read and understands
the scope and effect of the provisions of this Agreement. Neither party has
relied upon any representations or statements made by the other party hereto
which are not specifically set forth in this Agreement.
19. Severability. In the event that any provision hereof becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement shall continue in full force and effect without said
provision.
20. Entire Agreement. This Agreement represents the entire agreement
and understanding between the Company and Employee concerning Employee's
separation from the Company, and supersedes and replaces any and all prior
agreements and understandings concerning Employee's relationship with the
Company and his compensation by the Company.
21. No Oral Modification. This Agreement may only be amended in
writing signed by Employee and the Chief Executive Officer of the Company.
22. Governing Law. This Agreement shall be governed by the laws of the
State of California.
23. Effective Date. This Agreement is effective seven days after it
has been signed by both Parties.
24. Counterparts. This Agreement may be executed in counter-parts, and
each counterpart shall have the same force and effect as an original and shall
constitute an effective, binding agreement on the part of each of the
undersigned.
25. Voluntary Execution of Agreement. This Agreement is executed
voluntarily and without any duress or undue influence on the part or behalf of
the Parties hereto, with the full intent of releasing all claims. The Parties
acknowledge that:
(a) They have read this Agreement;
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(b) They have been represented in the preparation,
negotiation, and execution of this Agreement by legal counsel of their own
choice or that they have voluntarily declined to seek such counsel;
(c) They understand the terms and consequences of this
Agreement and of the releases it contains;
(d) They are fully aware of the legal and binding effect of
this Agreement.
26. Non-Solicitation. For 24 months following the Effective Date,
Employee shall not solicit, recruit or hire, or assist any other person or
entity to solicit, recruit or hire, any employee of the Company or any of its
affiliates who is employed by the Company on the Effective Date without the
express written consent of the Company's Chief Executive Officer. In the event
of any reductions) in work force of the Company's operations in Chico,
California, Employee shall have the right to solicit, recruit or hire, or
assist any other person to solicit, recruit or hire any employee of the
Company's Chico operations terminated in connection with such reduction in work
force or any other method of severance and/or termination
27. Notices. All notices and demands of every kind pursuant to this
Agreement shall be delivered or sent to the parties at the addresses appearing
following their signatures to this Agreement or at such other address as a
party may designate in writing to the other party. Any such notice or demand
shall be effective immediately upon delivery by facsimile or in person, one day
after deposit with Federal Express or similar overnight courier for next day
delivery and with delivery fees prepaid, or three days after deposit in the
United States mail, postage prepaid and addressed to the party at the address
given following the party's signature.
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IN WITNESS WHEREOF, the Parties have executed this Agreement on the
respective dates set forth below.
LANDACORP, INC.
Dated: June 20, 2001 By:
-------------------------------
Name: Xxxxxx Santa Cattarina
Title: Chief Executive Officer
Address:
0000 Xxxxxxx Xxxxxxxx Xx.,
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
XXXXX X. XXXX, an individual
Dated: June 20, 2001 /s/ Xxxxx X. Xxxx
----------------------------------
Xxxxx X. Xxxx
Address:
00 Xxxxxx Xxxx Xxxxxx
Xxxxx, Xxxxxxxxxx 00000-0000
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IN WITNESS WHEREOF, the Parties have executed this Agreement on the
respective dates set forth below.
LANDACORP, INC.
Dated: June 20, 2001 By: /s/ Xxxxxx Santa Cattarina
-------------------------------
Name: Xxxxxx Santa Cattarina
Title: Chief Executive Officer
Address:
0000 Xxxxxxx Xxxxxxxx Xx.,
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
XXXXX X. XXXX, an individual
Dated: June 20, 2001 /s/ Xxxxx X. Xxxx
----------------------------------
Xxxxx X. Xxxx
Address:
00 Xxxxxx Xxxx Xxxxxx
Xxxxx, Xxxxxxxxxx 00000-0000
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