EXHIBIT 10.72
SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE
This SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE ("AGREEMENT")
is entered into as of ________, 2003, by and between Sherwood Partners, Inc., a
California corporation ("SHERWOOD"), in its corporate capacity and in its
capacity as Assignee for the Benefit of Creditors of University Affiliates IPA,
Inc, ("UAIPA") and Xxx X.X. Xxxxx, M.D., aka Xxx Xxxxx ("ROMEO"), on the one
hand and Med Diversified, Inc. ("MED"), on the other hand, as follows:
I.
RECITALS
A. UAIPA is a non-profit corporation, organized under the laws of the
State of California.
B. On June 28, 2002, UAIPA executed a General Assignment for the
Benefit of Creditors ("ASSIGNMENT") designating SHERWOOD as the assignee. In
making the ASSIGNMENT, UAIPA assigned, transferred and set over to SHERWOOD all
of its rights, title and interest in and to all of its property of every kind
and nature whatsoever, real and personal, including but not limited to the
obligations, claims and debts owed to it by creditors.
X. XXXXXXXX is the sole legal representative of the UAIPA, SHERWOOD
currently holds, and since June 28, 2002, has held, the assets of UAIPA for the
sole benefit of UAIPA's creditors. Other than the June 28, 2002, assignment to
SHERWOOD, UAIPA has made no other general assignments for the benefit of its
creditors. SHERWOOD has full legal authority to enter into this AGREEMENT on
behalf of the UAIPA. This AGREEMENT is fully and legally enforceable pursuant
to law against SHERWOOD, UAIPA, ROMEO and MED.
E.D. On or about January 16, 2002, Med-Diversified, Inc. commenced an
action in the Superior Court for the County of Los Angeles by filing a
Complaint for Fraud etc. captioned MED-DIVERSIFIED, INC. v. UNIVERSITY
AFFILIATES IPA, INC. (the "COMPLAINT") bearing Case No. BC 266500.
F.E. In the Action, UAIPA filed a cross-complaint against, among others,
MED (the "UAIPA CROSS-COMPLAINT") and Med Diversified filed a Cross-Complaint
against UAIPA and ROMEO (the "MED CROSS-COMPLAINT") (The COMPLAINT, UAIPA
CROSS-COMPLAINT and the MED CROSS-COMPLAINT are sometimes collectively referred
to herein as the "ACTION").
G.F. On or about November 27, 2002, MED filed a petition under Chapter 11
of the United States Bankruptcy Code, Case No. 02-88564 in the United States
Bankruptcy Court for the Eastern District of New York. MED is acting as Debtor
and Debtor in Possession. (the "MED BANKRUPTCY CASE")
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H.G. In order to avoid the uncertainty, costs and expenses attendant with
continuing the litigation, the parties the parties to this AGREEMENT now desire
to resolve the Action as between UAIPA and ROMEO, on the one hand, and MED, on
the other hand.
II.
PROVISIONS
NOW, THEREFORE, in consideration of the foregoing Recitals and of the
mutual agreements, covenants and release set forth herein, and for other good
and valuable consideration, the sufficiency and adequacy of which is
acknowledged by the parties, the parties hereto agree as follows:
1. RECITALS. The recitals contained in paragraphs A through H, above
("RECITALS"), are an integral part of this AGREEMENT and are incorporated herein
by reference.
2. CONDITION PRECEDENT TO EFFECTIVENESS OF THIS AGREEMENT. This is AGREEMENT
contingent upon entry of an order of the Bankruptcy Court in the MED BANKRUPTCY
CASE approving this Agreement and such order becoming final and nonappealable.
3. RULES OF CONSTRUCTION. The following rules of construction govern and apply
to the interpretation and construction of this AGREEMENT:
3.1 Whenever the name of SHERWOOD is used, it includes all parents,
subsidiaries, related and affiliated entities, all current and former
agents, employees, attorneys (including, without limitation, Sulmeyer,
Kupetz, Xxxxxxx & Xxxxxxx. A Professional Corporation and its respective
individual attorneys), officers and directors, all successors and assigns
of SHERWOOD and all other persons and entities for whose acts and omissions
SHERWOOD may be held liable and includes SHERWOOD in its individual
capacity, its corporate capacity and its capacity as Assignee for the
Benefit of Creditors of the ESTATE.
3.2 Whenever the name of UAIPA is used, it includes all parents,
subsidiaries, related and affiliated entities, all current and former
agents, employees, attorneys, officers and directors, all successors and
assigns of UAIPA, including, without limitation, SHERWOOD, and all other
persons and entities for whose acts and omissions UAIPA may be held liable.
3.3 Whenever the name of MED is used, it includes all parents,
subsidiaries, related and affiliated entities, all current and former
agents, partners, employees, attorneys, officers and directors, all
successors and assigns of MED, as applicable, and all other persons and
entities for whose acts and omissions MED, as applicable, may be held
liable.
3.4 Each party acknowledges that it has participated in the drafting of
this AGREEMENT and reviewed the terms of the AGREEMENT and as such, no rule
of construction shall apply in any interpretation of this AGREEMENT which
might result
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in this AGREEMENT being construed in favor or against either of them,
including without limitation, any rule of construction to the effect that
ambiguities ought to be resolved against the drafting party.
3.5 The underscored word or words appearing as the commencement of
sections of this AGREEMENT are intended only as a guide and are not
intended, and should not be construed, as controlling, enlarging,
restricting, explaining or modifying, in any manner, the language or
meaning of those sections or subsections.
4. DISMISSAL OF THE ACTION: In consideration for the promises made in this
AGREEMENT, and expressly conditioned on each party bearing their own costs and
attorneys' fees, the ACTION shall be dismissed with prejudice. Concurrently with
the execution of this agreement, MED shall execute and deliver to counsel for
SHERWOOD, for filing with the Court, a request for dismissal of the MED
COMPLAINT AND MED CROSS-COMPLAINT with prejudice. Counsel for the SHERWOOD shall
execute the Request for Dismissal as to the UAIPA CROSS-COMPLAINT. Counsel for
SHERWOOD shall hold such dismissal and file it with the Court in the ACTION only
upon receipt of a final order of the Bankruptcy Court in the MED BANKRUPTCY CASE
approving this AGREEMENT.
5. RELEASE OF SHERWOOD, UAIPA AND ROMEO. Except for: (a) a breach of this
AGREEMENT, and claims arising by reason of such breach; (b) enforcement of
rights, obligations and duties arising under this AGREEMENT; and (c) the
satisfaction of the executory provisions of this AGREEMENT (collectively, the
"PRESERVED CLAIMS"), in consideration of the provisions of this AGREEMENT, MED
does hereby fully and finally compromise and settle with, and forever release,
remise, relieve, waive, relinquish and discharge SHERWOOD, UAIPA and ROMEO, and
each of them, from any and all claims, complaints, rights, manner of action or
actions, cause or causes of action, suits, debts, dues, demands, obligations,
charges, costs, expenses (including but not limited to attorneys' fees) sums of
money, controversies, damages, accounts, agreements, covenants, contracts,
judgments, reckonings, liens and liabilities of every kind and nature
whatsoever, whether at law or in equity, whether based upon statute, common law
or otherwise, whether matured, contingent or non-contingent, whether direct or
indirect, whether known or unknown, whether suspected or unsuspected, whether or
not hidden and without regard to the subsequent discovery or existence of
different or additional facts, which each of them, ever had, now has, or may
claim to have against SHERWOOD, including but not limited to, those asserted in,
or in connection with, the ACTION, UAIPA and ROMEO.
6. RELEASE OF MED BY SHERWOOD, UAIPA AND ROMEO. Except for: (a) a breach of
this AGREEMENT, and claims arising by reason of such breach; (b) enforcement of
rights, obligations and duties arising under this AGREEMENT; and (c) the
satisfaction of the executory provisions of this AGREEMENT (collectively, the
"PRESERVED CLAIMS"), in consideration of the provisions of this AGREEMENT,
SHERWOOD, UAIPA and ROMEO, and each of them, do hereby fully and finally
compromise and settle with, and forever release, remise, relieve, waive,
relinquish and discharge MED from any and all claims, complaints, rights, manner
of action or actions, cause or causes of action, suits, debts, dues, demands,
obligations, charges, costs, expenses (including but not limited to attorneys'
fees) sums of money, controversies, damages, accounts, agreements, covenants,
contracts, judgments,
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reckonings, liens and liabilities of every kind and nature whatsoever, whether
at law or in equity, whether based upon statute, common law or otherwise,
whether matured, contingent or non-contingent, whether direct or indirect,
whether known or unknown, whether suspected or unsuspected, whether or not
hidden and without regard to the subsequent discovery or existence of different
or additional facts, which SHERWOOD, UAIPA and XXXXXX, and each of them, ever
had, now has, or may claim to have against MED, and each of them, including but
not limited to, those asserted in, or in connection with the ACTION and MED.
7. FINAL RELEASE AND BAR. Except for the PRESERVED CLAIMS excluded from the
releases contained in Sections 5 and 6, inclusive, above, the parties hereto
hereby acknowledge that it is their intention that this AGREEMENT shall be
effective as a full and final release of and as a bar with prejudice to each and
every claim, complaint, right, manner of action or actions, cause or causes of
action, suit, debt, dues, demand, obligation, charge, cost, expense (including
but not limited to attorney's fees), sum of money, controversy, damage, account,
agreement, covenant, contract, judgment, reckoning, lien and liability of every
kind and nature whatsoever, whether at law or in equity, whether based upon
statute, common law or otherwise, whether matured, contingent or non-contingent,
whether direct or indirect, whether known or unknown, whether suspected or
unsuspected, whether or not hidden and without regard to the subsequent
discovery or existence of different or additional facts, referred to and
released in Sections 5 through 7, inclusive, above, which the parties have or
had against one another as is applicable, directly or indirectly. In connection
with such waiver and relinquishment, the parties acknowledge that they or their
attorneys may hereafter discover facts different from or in addition to the
facts that they now know or believe to be true with respect to the subject
matter of this AGREEMENT, but that it is their intention to hereby fully,
finally, absolutely, and forever release any and all claims released pursuant to
Sections 5 through 7, inclusive, above, which now do exist, may exist or
heretofore have existed between them, and that in furtherance of such intentions
the release as given herein by the parties, shall be and remain in effect as a
full and complete release of the claims released in Sections 5 through 7,
inclusive, above, notwithstanding the discovery of any such different or
additional facts.
Notwithstanding the discovery of any such additional or different
facts, the parties certify that they have read Section 1542 of the California
Civil Code set forth below:
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.
The parties hereto, do hereby waive application of Section 1542 of
the California Civil Code and any other statutes, common law rights, rules or
the like which may operate to limit the intent of this AGREEMENT with respect to
the releases in Sections 4 and 5, inclusive, above. The parties understand and
acknowledge the significance and consequence of this waiver of Section 1542 of
the California Civil Code is that even if they should eventually suffer
additional damages on account of the ACTION released in Sections 5 and 6,
inclusive, above, they will not be permitted to make any claim for such damages.
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8. COVENANT NOT TO XXX. SHERWOOD, UAIPA, ROMEO, and MED, and each of them,
hereby covenant and agree that they will forever refrain and forbear from
commencing, instituting or prosecuting any lawsuit action or other proceeding
against each other, based on, arising out of, or in connection with the claims
released in Sections 5 and 6, inclusive, above, including, without limitation,
SHERWOOD, UAIPA, ROMEO and MED,. Notwithstanding the foregoing, nothing
contained in this AGREEMENT shall preclude SHERWOOD, UAIPA, ROMEO, and MED, and
each of them, from exercising their respective rights in the event the other
party breaches any of its obligations under this AGREEMENT.
9. DENIAL OF LIABILITY. Liability for any claims that SHERWOOD, UAIPA, ROMEO,
and MED, and each of them, has asserted or may have asserted is denied by
SHERWOOD, UAIPA, ROMEO, and MED, and each of them. This AGREEMENT is a
compromise of disputed claims and shall never be construed as an admission of
liability or responsibility for any purpose by any of the parties to this
AGREEMENT.
10. MUTUAL WARRANTIES AND REPRESENTATIONS. SHERWOOD, UAIPA, ROMEO, and MED, and
each of them, hereby represent and warrant to each other that as of the date of
this AGREEMENT:
10.1 SHERWOOD, UAIPA, ROMEO, and MED, and each of them, have each
consulted with or have had the opportunity to consult with an attorney of
their choosing, and each of them has carefully read this AGREEMENT, fully
understands the AGREEMENT and its terms and provisions, and each of them
is relying upon legal advice in entering into this AGREEMENT voluntarily.
10.2 SHERWOOD, UAIPA, ROMEO, and MED, and each of them, have each made
such investigation of the facts and matters pertaining to this AGREEMENT
and settlement of the ACTION as each of them has deemed necessary.
10.3 Except for the statements, representations and promises contained in
this AGREEMENT, the parties hereto are not relying upon any statement,
representation, or promise from the other party hereto or any of the other
party's agents, employees, representatives, or attorneys in entering into
this AGREEMENT.
10.4 Each person executing this AGREEMENT on behalf of a party hereto has
been duly authorized to execute this AGREEMENT on behalf of the party and
to bind the party to the terms and provisions of this AGREEMENT by
appropriate appointment, delegation of authority, corporate by-laws or
board resolutions.
10.5 Neither SHERWOOD, UAIPA, ROMEO, or MED has heretofore sold,
conveyed, assigned, transferred, hypothecated, pledged, or otherwise
encumbered or purported to have assigned, transferred, hypothecated,
pledged or otherwise encumbered, nor will either of them in the future, in
any manner, assign, transfer, hypothecate, pledge, or otherwise encumber or
purport to assign, transfer, hypothecate or pledge to or otherwise encumber
in favor of any person, any claim settled or released by this AGREEMENT.
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10.6 As to the matters addressed herein, this AGREEMENT is intended to be
final and binding upon the parties hereto, regardless of any mistake of
fact or law made by the parties hereto. SHERWOOD, UAIPA, ROMEO, and MED,
and each of them, each assume the risk of any mistake of fact or law in
relation to this AGREEMENT and may not set aside this AGREEMENT, or any
portion thereof based on the subsequent discovery of any such mistake of
fact or law.
11. COMPLETE AGREEMENT. This AGREEMENT contains the entire agreement between
the parties hereto with respect to the matters addressed in this AGREEMENT. This
AGREEMENT supercedes all prior agreements, written or oral. Should a dispute
arise under this AGREEMENT, neither SHERWOOD, UAIPA, ROMEO, and MED, nor any of
them, may introduce evidence of any alleged prior or contemporaneous agreements
or understandings to alter the terms of this AGREEMENT.
12. NO ORAL MODIFICATIONS. This AGREEMENT may be amended only in a writing
signed by all parties or those parties whose rights are materially affected or
altered by the proposed modification.
13. ATTORNEYS' FEES AND COSTS. SHERWOOD, UAIPA, ROMEO, and MED, and each of
them, shall each bear their own costs and attorneys' fees, if any, with regard
to any aspect of this AGREEMENT. However, SHERWOOD, UAIPA, ROMEO, and MED, and
each of them, agree that in the event of any legal or equitable action or
arbitration proceeding required to enforce or defend this AGREEMENT, the
prevailing party, as that term is defined by California Civil Code Section 1717,
shall be entitled to an award of its or his attorneys' fees, costs, and expenses
incurred in connection with the enforcement or defense of this AGREEMENT, in
addition to any other damages it or he may suffer as a result of the violation
or breach of this AGREEMENT, or other relief to which it or he may be entitled.
14. SUCCESSORS. This AGREEMENT shall bind and inure to the benefit of the
parties hereto and their respective spouses, successors, administrators,
executives, predecessors and assigns.
15. SEVERABILITY. Should any provision of this AGREEMENT be unenforceable,
those provisions shall be considered severable, and the remaining provisions
shall remain in effect.
16. GOVERNING LAW. This AGREEMENT shall be construed and governed by the laws
of the State of California.
17. COUNTERPARTS. This AGREEMENT may be executed in counterparts and by
facsimile signature with the same force and effect as if all original signatures
were set forth in a single document. This AGREEMENT shall not be binding until
signed by both parties.
18. FURTHER ASSURANCES. SHERWOOD, UAIPA, ROMEO, and MED, and each of them,
hereby agree to, on request of any other party hereto, to perform all acts
reasonably necessary, including execution of further documents, to effectuate
the intent of this AGREEMENT.
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IN WITNESS WHEREOF, the parties hereto have executed this SETTLEMENT AGREEMENT
AND MUTUAL GENERAL RELEASE effective as of the first date written above.
SHERWOOD PARTNERS, INC., A CALIFORNIA
CORPORATION
By:
-------------------------------
Its:
-------------------------------
SHERWOOD PARTNERS, INC., A CALIFORNIA
CORPORATION, ASSIGNEE FOR THE BENEFIT
OF CREDITORS OF UNIVERSITY
AFFILIATES IPA, INC.,
By:
-------------------------------
Its:
-------------------------------
MED DIVERSIFIED, INC.
By:
-------------------------------
Its:
-------------------------------
XXX X. X. XXXXX, M.D., AKA XXX XXXXX
By:
-------------------------------
Xxx Xxxxx
Signatures continue on next page
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APPROVED AS TO FORM:
SULMEYER, KUPETZ, XXXXXXX & XXXXXXX
A Professional Corporation
By:
---------------------------------------
Xxxxxx X. Xxxxxx
Attorneys for Sherwood Partners, Inc., a
California corporation, in its individual and
corporate capacity and its capacity as Assignee
for the Benefit of Creditors of UAIPA, Inc.
XXXXXX & XXXXX, LLP
By:
---------------------------------------
Xxxx Xxxxxxxxx
Attorneys for UAIPA
XXXXX XXXXXX LLP
By:
---------------------------------------
Xxxx X. Xxxxx
Attorneys for Med Diversified, Inc.
MUCHINSON & CUMMINS
By:
---------------------------------------
Xxxxxx X. Xxxxxxx III, Esq.
Attorneys for Xxx X.X. Xxxxx, M.D.,
aka Xxx Xxxxx
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