Free Statement - District Court of Arizona - Arizona

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Direct Phone: (602) 916·5370
Dlrect Fax: (602) 916-5570 3003 NORTH CENTRAL AVENUE
]Iord@ fclaw. com SUITE 2600
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· January 21, 2000
·
Stephen A. Best, Esq.
Senior Vice President & General Counsel
visitalkcom. Inc.
8936 N. Central Avenue
Phoenix, Arizona 85020
Re: Mark Cardwell; visitalk.com, Inc. ("visitalk” or the
“Company")
Dear Steve:
Thank you for meeting with us earlier this week to discuss an amicable resolution
of the issues and claims between our respective clients. It is indeed unfortunate that our clients _
were not able to arrive at a solution on Tuesday.
I As I am sure you might expect, John Balitis and I have had a thorough discussion
with our client concerning the alternatives available to him in anticipation of separating hom
visitalk. I do not think it is necessary for me to detail those for you, as it was clear during our
meeting that you can easily anticipate what those alternatives are. The one thing we all seem to
agree on was the best altemative for everyone, including the Company and its shareholders, is to
arrive at a settlement.
As you may or may not know, Mark is not a particularly money-driven person.
However, Mark is a man of principle. In that regard, he is not attempting to obtain an
overreaching settlement, however, he believes that any separation and severance agreement
between the parties must be fair.
Because Mark genuinely wants to take the best approach to resolve these matters
for the sake of the Company and the shareholders before pursuing other alternatives, he has
authorized me to make a counteroffer to your last proposal.
At our meeting on Tuesday, we appeared to agree on all terms for a severance
and settlement agreement, except for the amount of compensation/consideration the Company .
· Case 2:02-cv-02405-HRH Document 384-34 Filed 07/24/2007 Page 1 of 3 VT006910

_ : »FENNEMoRE CRAIG
_ Stephen A. Best, Esq.
January 21, 2000
Page 2
would pay to Mark.' At the conclusion of the meeting, my client had offered to accept a payment
of $500,000 (he previously offered $700,000, contemplating $200,000 of that amount would be
paid Mark to forego his 100,000 fully-vested stock options). Your client offered a payment of
$100,000.
Mark has provided to us, and we have reviewed, several employment agreements
of other visitalk senior executives. Assuming that, as you represented at our meeting, the
Company intended to employ Mark pursuant to the tenns of those agreements, Mark would be
entitled to severance pay in the amount of 100 percent of his current salary for the iirst year after
he leaves the Company; 50 percent of his current salary for the second year; and, 33 percent of
his current salary for the third year. That translates to Mark receiving pay of $150,000 for the
first year, $75,000 for the second year, and $50,000 for the third year. Mark would be agreeable
to accepting severance pay &om the Company in the total amount of $275,000 so long as a lump
sum payment is received of $50,000 upon execution of the severance and settlement agreement,
and the remainder be paid out in semi-monthly installments over a period of one year, without
any interest. Based upon the Company’s recent financial statement, it certainly has the resources
to accomplish this.
The above offer would incorporate all of the other agreed upon terms_ we
discussed at the meeting on Tuesday. If the compensation/consideration payment contained in
this letter is agreeable to visitalk, please contact me immediately and I will send a letter
continuing all of the other terms we discussed.
Obviously, no settlement of these matters will be iinal and binding until such time _
as the parties execute a mutually agreeable settlement and severance agreement which would
contain a iiill mutual release of all claims through the date the agreement is executed.
Steve, while you and I may find the issues presented in this matter fascinating,
and litigating these issues would make for a professionally fulhlling piece of work, the truth of
the matter is the settlement contained in this letter is in the best interest of the Company, its
shareholders, as well as my client. I perceive that a reason the Company has not made a more
generous severance offer comparable to the severance provided for in the employment
agreements is because of some ill-will toward him, not because to do so would be a poor
business decision for the Company. I hope the Company will make its decision for good
business reasons and not based on emotion. In that regard, I urge you to have visitalk give
serious consideration to this offer.
‘ The length of the extension of time for Mark to exercise his 100,000 options may still be in issue,
but can be easily resolved.
Case 2:02-cv-02405-HRH Document 384-34 Filed 07/24/2007 Page 2 of 3 VT006911

_ ·. g PFENNEMORE CRAIG
. Stephen A. Best, Esq.
January 21, 2000
Page 3
If you have any questions, or wish to discuss anything further, I will be available
for most of the day today, please feel &ee to call me.
Very ttul yours,
ENNEM •» CRAIG
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A
. Lord
JWL/bo
PHX/ILORD/1030444.1/01001.000
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