EXHIBIT 10.45
SETTLEMENT AGREEMENT AND GENERAL RELEASE
Settlement Agreement and General Release (the "Agreement") entered into
this 11th day of July, 1997, between U.S. DIAGNOSTIC INC., a Delaware
corporation ("USD") and XXXXXXX XXXXXXX, an individual ("GOFFMAN").
RECITALS
A. WHEREAS, GOFFMAN acted as a senior executive officer and director of
USD from the date of its initial public offering in October 1994 and was
employed by USD pursuant to a written agreement dated August 1994, which was
amended in writing as of October 1, l995 (hereafter referred to collectively as
the "Employment Agreement" and attached hereto as Exhibit A.)
B. WHEREAS, in or about January 1997, certain shareholders of USD filed
multiple complaints (the "Complaints") against USD in the United States District
Court for the Southern District of Florida alleging that GOFFMAN, USD and others
had violated certain securities laws by failing to make certain disclosures
regarding the background of Xxxxx Xxxxxxxxx, who acted through Coyote Consulting
as a consultant to USD.
C. WHEREAS, on or about February 3, l997 GOFFMAN voluntarily agreed to
go on administrative leave from USD while the matters alleged in the Complaints
were investigated by a Special Committee of USD's Board of Directors.
D. WHEREAS, on or about March 25, l997, GOFFMAN delivered to USD a
written notice declaring that a Special Termination (as defined in the
Employment Agreement) had occurred pursuant to Section 5(c) of the Employment
Agreement and requesting that benefits be paid to him pursuant to that Section.
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E. WHEREAS, USD has denied any liability to GOFFMAN pursuant to Section
5(c) or any other provision of the Employment Agreement.
F. WHEREAS, the parties desire to resolve all of their disputes and
differences, except as otherwise provided and specifically reserved in paragraph
4(a) of this Agreement.
TERMS OF AGREEMENT
NOW, THEREFORE, in consideration of the covenants, representations and
promises contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
and each of them, agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall
have the meanings indicated below:
(a) "CLAIMS" refers to and includes all claims, demands,
rights, causes of action, rights of action, rights of subrogation, rights of
indemnity, rights to reimbursement, rights to payment, damages, liens and
remedies of every kind or nature whatsoever, whether at law, in equity, or
otherwise, which are owned or held by the parties to this Agreement, and whether
or not the same are known to the parties at the time of their execution of this
Agreement.
(b) "OBLIGATIONS" refers to and includes all obligations,
duties, liabilities, damages, expenses and debts of every kind and nature
whatsoever, owed by and to the parties to this Agreement, whether or not the
same are known to the parties at the time of their execution of this Agreement.
(c) "USD" refers to U.S. Diagnostic Inc., and its subsidiaries
and affiliates and their respective past and present officers, directors,
stockholders, employees, attorneys, successors, and assigns.
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(d) "GOFFMAN" refers to Xxxxxxx X. Xxxxxxx and his heirs,
representatives, successors and assigns.
(e) "SHAREHOLDER CLASS ACTIONS" refers to those actions
currently pending against USD in the United States District Court for the
Southern District of Florida identified as Case Nos. 97-8010, 97-8011, 97-8016,
97-8017, 97-8054 and 97-8068, as well as any amendments thereto and any
subsequently filed or asserted CLAIMS brought by or on behalf of USD
shareholders which relate to the same or similar facts or allegations, or to
USD's reports on its 1995 and 1996 Forms 10-K and the restatements of its 1996
quarterly reports on Forms 10-Q filed with the Securities and Exchange
Commission, and any related securities filings and/or proxy materials.
Incorporating the definitions set forth above, the parties
hereto agree as follows:
2. GENERAl
(a) It is understood that this Agreement does not
constitute an admission by any of the parties of any wrongdoing or the
existence or breach of any OBLIGATIONS whatsoever. Moreover, each of the parties
specifically denies having engaged in any wrongdoing and denies the existence of
any OBLIGATIONS or the validity of any CLAIMS asserted against it in the
Shareholder Class Actions or elsewhere.
(b) The parties are entering into this Agreement for
the purpose of fully and completely settling all differences between them
(except as specifically preserved) and in the interest of saving themselves the
costs and vexation of further legal proceedings.
(c) There are no intended third party beneficiaries
to this Agreement.
3. SETTLEMENT
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(a) EMPLOYMENT TERMINATION. The parties agree that
pursuant to GOFFMAN's written notice of Special Termination, dated March 25,
1997, and a Letter of Intent entered into between USD and GOFFMAN dated April
24, 1997 (the "Letter of Intent"), GOFFMAN's employment by USD was effectively
terminated on March 31, 1997, whereupon GOFFMAN resigned as a member of USD's
Board of Directors. GOFFMAN has no further rights to employment by USD or to act
as a director, agent or representative of USD in any respect.
(b) ONGOING COOPERATION
(i) GOFFMAN shall cooperate fully with counsel for
USD in the defense of the Shareholder Class Actions. Unless and until claims
pursuant to paragraphs 4(a)(i)(ii) or (iii) are brought by USD against GOFFMAN,
GOFFMAN shall, upon reasonable prior notice, make himself available during
normal business hours to the Company and/or its attorneys for meetings and
preparation. Nothing in this provision shall be deemed to require GOFFMAN to
waive any applicable privilege. Any out of pocket costs incurred by GOFFMAN in
providing such cooperation shall be borne by USD.
(ii) GOFFMAN shall also make himself available,
upon reasonable prior notice during normal business hours, to USD and/or its
counsel to provide historical information and answer other questions related to
USD's operations so as to facilitate the management transition of USD. Any out
of pocket costs incurred by GOFFMAN in making himself so available shall be
borne by USD.
(iiii) USD shall allow GOFFMAN access, on reasonable
notice and at reasonable times, to its non-privileged business records
generated prior to January 1997 for the
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purpose of allowing GOFFMAN to prepare his defense in the Shareholder Class
Actions. USD's obligation to provide such access shall terminate upon filing of
a claim by it against GOFFMAN pursuant to Sections 4(a)(i), (ii) or (iii)
hereof.
(c) CONFIRMATION REGARDING SECURITIES.
(i) USD and GOFFMAN acknowledge that during the
period of his employment with USD, GOFFMAN was awarded by action of the USD
Board of Directors the shares and options listed on Exhibit B hereto; and
(ii) GOFFMAN acknowledges and agrees that as set
forth in the Letter of Intent he agreed to transfer any proxies or other rights
to exercise voting power for any USD shares of which he is not the beneficial
owner and that he will, simultaneous with the execution of this Settlement
Agreement, reaffirm this transfer by executing a proxy letter in the form
annexed hereto as Exhibit C.
(d) PAYMENT OF CONSIDERATION. In full and complete
satisfaction of any CLAIMS or OBLIGATIONS under the Employment Agreement, as
well as any other CLAIMS related to compensation or benefits to which GOFFMAN
might be entitled in connection with his employment by USD, USD shall deliver to
GOFFMAN the following:
(i) Cash payment to GOFFMAN of $165,000, which sum
has already been paid and the receipt of which is hereby acknowledged by
GOFFMAN.
(ii) Cash payment of $33,333.44 payable to GOFFMAN
by wire transfer of immediately available funds to an account designated in
writing to USD by GOFFMAN within two (2) business days of the execution of this
Agreement.
(iii) A promissory note (the "Promissory Note") of
USD, in the form of
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Exhibit D hereto, payable to GOFFMAN in the aggregate principal amount of
$266,666.56, which amount shall be payable to GOFFMAN in sixteen (16) equal cash
payments of $16,666.66 each, due on the first day of each month commencing with
August 1, l997 and continuing for a period of sixteen (16) consecutive months.
The outstanding principal amount of the Promissory Note shall be due and payable
in full upon a sale or Change of Control ("Change of Control") of USD (as
defined in Section 15(b) of the USD Long Term Incentive Plan (the "1995 Plan").
(iv) An option agreement (the "Vested $5.125 Option
Agreement") by and between USD and GOFFMAN, dated as of the date hereof, in the
form of Exhibit E hereto, reflecting the grant to GOFFMAN on August 28, 1995 of
options exercisable to purchase 50,000 shares of Common Stock, at an exercise
price of $5.125 per share. It is expressly understood and acknowledged by USD
that these options are fully vested as of the date hereof, that such options
shall be retained by GOFFMAN and that no part of such options shall become part
of the Escrow. USD further acknowledges that GOFFMAN holds additional fully
vested options to purchase 50,000 shares of USD Common Stock at a purchase price
of $5.00 per share granted pursuant to an Option Agreement, annexed hereto as
Exhibit F, by and between USD and GOFFMAN, dated August 15, 1994 (the "1994
Option Agreement") that he shall also retain outside of the Escrow arrangement.
(v) An option agreement (the $7.125 Option
Agreement") by and between USD and GOFFMAN, dated as of the date hereof, in the
form of Exhibit G hereto, reflecting the grant to GOFFMAN of options exercisable
to purchase 100,000 shares of Common Stock at an exercise price of $7.125 per
share. The $7.125 Option Agreement shall reflect that these options will vest
only upon a sale or Change of Control of USD by March 31, 1999 and
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that in the event there has been no sale or Change of Control of USD by March
31, 1999 these options shall expire. Additionally, one-half of these options
(50,000 shares) shall be exercisable only after USD's common stock has traded at
a price of at least $15 per share.
(vi) An option agreement (the "$12.125 Option
Agreement") by and between USD and GOFFMAN, dated as of the date hereof, in the
form of Exhibit H hereto, reflecting the grant to GOFFMAN of options exercisable
to purchase 250,000 shares of Common Stock of USD at an exercise price of
$12.125. The $12.125 Option Agreement shall reflect that these options will vest
only upon a sale or Change of Control of USD on or before March 31, 1999 and
that in the event there has been no sale or Change of Control of USD by March
31, 1999, these options shall expire. Additionally, these options shall be
exercisable only after USD's Common Stock has traded at a price of at least
$16.00 per share. (The 1994 Option Agreement, the Unvested $5.125 Option
Agreement defined below, the Vested $5.125 Option Agreement, the $7.125 Option
Agreement and the $12.125 Option Agreement shall be collectively referred to as
the "Option Agreements".)
(vii) USD will provide GOFFMAN with notice of a sale
or Change of Control equivalent to the notice it provides to other non-inside,
unaffiliated shareholders of USD.
(e) ESTABLISHMENT OF ESCROW. Simultaneous with execution of
this Agreement, GOFFMAN and USD shall enter into an Escrow Agreement in the form
attached hereto as Exhibit I. Within two business days of the execution of this
Agreement, the Escrow shall be funded by the delivery of (i) an original Option
Agreement representing the right to acquire 100,000 shares at an exercise price
of $5.125 in the form attached hereto as Exhibit J (the "Unvested $5.125 Option
Agreement"); (ii) a letter confirming USD's commitment to deliver a
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certificate representing 25,000 shares of restricted USD stock granted to
GOFFMAN on August 1, 1995 which shall vest on August 1, 1997 and be delivered to
the Escrow Agent (or to GOFFMAN if the Escrow has already terminated) on August
1, 1997; (iii) a certificate for 65,000 shares of common stock representing 1/3
of the 195,000 shares of restricted stock granted to GOFFMAN on August 1, 1995,
which portion vested on May 1, 1997; and (iv) a letter confirming USD's
commitment to deliver certificates representing 65,000 shares which shall vest
on May 1, 1998, and 65,000 shares which shall vest on May 1, 1999, which
represent the presently unvested portion of the August 1, 1995 grant and the
certificates for which shall be delivered by USD to the Escrow Agent on their
vesting date (or to GOFFMAN if the Escrow has already terminated). In the event
that there is a sale of USD or a change of control of USD (as defined in Section
15(b) of the 1993 and 1995 stock plans, as applicable) the vesting and date for
delivery of such shares and options shall immediately accelerate. The assets
described in subparagraphs (i) through (iv) above and that are to be delivered
to the Escrow are hereinafter referred to as the "Escrowed Securities".
(f) To the extent that the 1993 Plan, the 1994 Option
Agreement and/or the 1995 Plan would require forfeiture of the securities
referred to in subparagraph (d) and (e) above by reason of the termination of
GOFFMAN'S employment, they are expressly superseded by this Agreement.
GOFFMAN hereby warrants and represents that he has
not transferred, assigned, pledged, encumbered or hypothecated any of the
Escrowed Securities.
(g) NONCOMPETE COVENANT.
In consideration of the various covenants,
representations and
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releases set forth in this Agreement, GOFFMAN hereby reaffirms and agrees,
except as provided below, to continue to be bound by the covenant not to compete
set forth in paragraph 6 of the Employment Agreement. USD hereby acknowledges
and agrees that, notwithstanding USD's ownership of an interest in certain
radiation therapy cancer centers, GOFFMAN shall not be prohibited from accepting
employment with a business engaging in radiation therapy as its primary line of
business, so long as such business does not own or operate facilities within 100
miles of any USD related facility that provides radiation therapy.
(h) ADVANCEMENT OF FEES. The Company reaffirms the
scope of its prior agreement to advance legal fees and expenses incurred by
GOFFMAN in connection with the SHAREHOLDER CLASS ACTIONS, and other matters in
which he may require and be legally entitled to legal representation in
connection with actions undertaken by him as an officer, employee or director of
US Diagnostic. This provision is intended to reaffirm, but not to expand in any
way, the scope of indemnification obligations as established by the Company's
Bylaws and Delaware law.
(i) REPRESENTATIONS AND WARRANTIES.
(i) USD hereby represents and warrants as
follows:
(a) It has the full power and
authority to execute, deliver and perform this Agreement, the Promissory Note,
the Escrow Agreement, the Option Agreements and the letters relating to
restricted shares referred to herein. It has duly authorized the execution,
delivery and performance of this Agreement, the Promissory Note, the Escrow
Agreement and the Option Agreements, has duly executed and delivered this
Agreement, the Promissory Note, the Escrow Agreement and the Option Agreements
and all such Agreements,
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when duly authorized, executed and delivered by GOFFMAN (if required) will
constitute legal, valid and binding obligations of USD, enforceable against it
in accordance with their respective terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium and other laws now or hereafter in effect
relating to creditors' rights generally and by equitable principles of general
application (regardless or whether considered in a proceeding in equity or at
law) and the discretion of the court before which any such proceeding may be
brought;
(b) None of the execution and
delivery of this Agreement, the Promissory Note, the Escrow Agreement or the
Option Agreements, the consummation of the transactions required of it herein or
therein, nor the fulfillment of, or compliance with, the terms and conditions of
this Agreement, the Promissory Note, the Escrow Agreement or the Option
Agreements, will result in a breach of any of the terms, conditions or
provisions of its charter or by-laws or any material agreement or instrument to
which it is now a party or by which it is bound or constitute a material default
or result in an acceleration under any of the foregoing, or result in the
violation of any law, rule, regulation, order, judgment or decree to which it or
its property is subject;
(c) No consent, approval,
authorization or order of any court or governmental agency or body is required
for the execution, delivery and performance by it of, or compliance by it with,
this Agreement, the Promissory Note, the Escrow Agreement, or the Option
Agreements.
(d) There is no currently pending
litigation which would prevent USD from entering into or performing its
obligations under the terms of this Agreement.
(ii) GOFFMAN hereby represents and warrants
as follows:
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(a) He has the full power and
authority to consummate all transactions required of him by this Agreement, the
Promissory Note and the Escrow Agreement. He has duly executed and delivered
this Agreement and the Escrow Agreement, both of which, when duly authorized,
executed and delivered by USD, will constitute legal, valid and binding
obligations of GOFFMAN, enforceable against him in accordance with their
respective terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium and other laws now or hereafter in effect relating to creditors'
rights generally and by equitable principles of general application (regardless
of whether considered in a proceeding in equity or at law) and the discretion of
the court before which any such proceeding may be brought;
(b) Neither the execution and
delivery of this Agreement or the Escrow Agreement, the consummation of the
transactions required of him herein or therein, nor the fulfillment of, or
compliance with, the terms and conditions of this Agreement or the Escrow
Agreement will conflict with, or result in, a breach of any of the terms,
conditions or provisions of any material agreement or instrument to which he is
now a party or by which he is bound or constitute a material default or result
in an acceleration under any of the foregoing, or result in the violation of any
law, rule, regulation, order, judgment or decree to which he or his property is
subject;
(c) No consent, approval,
authorization or order of any court or governmental agency or body is required
for the execution, delivery and performance by him of, or compliance by him
with, this Agreement or the Escrow Agreement.
(d) GOFFMAN was not awarded and did
not receive any stock or options in USD during the period of his employment with
the Company other than as
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specifically set forth on Exhibit B hereto, and has no claim to any additional
securities from USD.
(e) There is currently no pending
litigation which would prevent GOFFMAN from entering into or performing his
obligations under this Agreement.
4. RELEASES.
(a) GOFFMAN and USD agree to and do hereby fully,
finally and forever release, quitclaim and discharge each other from any and all
CLAIMS and/or OBLIGATIONS, known or unknown, at law or in equity, which they may
now or hereafter have or claim to have had against each other, regardless of
when arising up to the date of final execution of this Agreement, including, but
without limiting the generality of the foregoing, any and all matters arising
out of or in any manner whatsoever connected with GOFFMAN's employment and/or
contractual relationships with, and/or in his capacity as an officer or director
of, USD, except that the following CLAIMS are not released and are specifically
preserved by the parties.
(i) any CLAIMS asserted in or arising out
of the SHAREHOLDER CLASS ACTIONS, including any rights of contribution or
indemnity which GOFFMAN or USD may have against each other in connection with
such CLAIMS, regardless of whether asserted in the same or separate litigation;
(ii) any CLAIMS against GOFFMAN based upon
intentional fraud or other intentional misconduct, provided such CLAIMS are
brought by April 24, 1998; and
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(iii) any CLAIMS against GOFFMAN based upon
allegations that he either directly or indirectly, received improper financial
benefit from any transaction involving USD, provided such CLAIMS are brought by
April 24, 1998, and provided further that no salary, bonus or options paid to
GOFFMAN by USD and approved by USD's Board of Directors or other benefits
provided to GOFFMAN in accordance with GOFFMAN's employment contract with USD
shall constitute an "improper financial benefit;" and
(iv) any CLAIMS asserted or arising out of
a breach, or threatened breach, of any of the terms or conditions of this
Agreement, the Escrow Agreement, the Promissory Note or the Option Agreements
referred to herein.
(b) Without limiting the generality of the foregoing,
the parties acknowledge and agree that among those CLAIMS and OBLIGATIONS
released are those arising under the laws of the United States and the laws of
any State of the United States (including but not limited to the laws of
Florida, Delaware and New York).
(c) The parties acknowledge and agree that the
Releases contained herein are general in nature (with specific exclusions) and
the parties expressly waive and assume the risk of any and all CLAIMS which
exist as of the date of this Agreement but which they do not know or suspect to
exist as of the date of this Agreement, whether through ignorance, oversight,
error, negligence, or otherwise, and which, if known, would materially affect
their decision to enter into this Agreement. The parties agree that the release
set forth in this Agreement is a full and final release applying to all unknown
and unsuspected CLAIMS (with only the exceptions stated herein) but that it
shall not apply to release CLAIMS based solely on events occurring after the
date of execution of this Agreement, or CLAIMS based upon a breach
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of the terms of this Agreement.
5. SUCCESSORS AND ASSIGNS. All agreements, acknowledgments,
declarations, representations, understandings, promises, warranties,
authorizations and instructions made, and all understandings expressed by the
parties hereto, and each of them, in this Agreement and all benefits accruing
under this Agreement apply to and bind their respective makers as well as their
heirs, officers, directors, employees, attorneys, affiliates, subsidiaries,
predecessors, successors and assigns.
6. MODIFICATIONS. This Agreement may not be modified except
by a writing signed by GOFFMAN and USD or their duly authorized representatives.
7. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which when
taken together shall constitute one and the same instrument.
8. COMPETENCY OF PARTIES. The parties, and each of them
acknowledge, warrant, represent and agree that in executing and delivering this
Agreement, they do so freely, knowingly and voluntarily, that they have
discussed its terms and implications with their legal counsel, that they are
fully aware of the contents and effect thereof, and that such execution and
delivery is not the result of any fraud, duress, mistake or undue influence
whatsoever.
9. VOLUNTARY EXECUTION OF AGREEMENT. The parties, and each of
them, have freely and voluntarily executed this Agreement and are not acting
under coercion, duress, menace, economic compulsion, or because of any purported
disparity in bargaining power; rather, GOFFMAN and USD are freely and
voluntarily signing this Agreement for each's own benefit.
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10. REPRESENTATION BY COUNSEL. GOFFMAN and USD acknowledge
that they have been represented in the negotiations for, and in the preparation
of, this Agreement by counsel of their own choosing; that they have read this
Agreement or have had it read to them by their counsel; and that they are fully
aware of and understand its contents and legal effect. Accordingly, this
Agreement shall not be construed against any party, and the usual rule of
construction that an agreement is construed against the party which drafted it
shall not apply.
11. AUTHORITY. The person executing this Agreement on behalf
of USD hereby warrants that he has such authority and that the terms of this
Agreement were approved by the USD Board of Directors at a regularly conducted
meeting.
12. MISTAKE IN FACTS OR LAW. The parties acknowledge and
understand that both the facts and the law pertaining to and giving rise to this
Agreement may hereafter turn out to be different than they now believe. The
parties expressly assume the risk of any such difference in facts or law and
agree that this Agreement shall continue in full force and effect
notwithstanding any such difference.
13. NOTICES. All notices and other communications given or
made pursuant hereto shall be in writing and shall be deemed to have been duly
given or made as of the date delivered, if delivered personally or by telecopy,
or five days after being mailed, if mailed by registered or certified mail
(postage prepaid, return receipt requested), to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice, except that notices of changes of address shall be effective upon
receipt):
(a) if to GOFFMAN:
Xxxxxxx Xxxxxxx
0000 Xxxxxxxx Xxxxx Xxxxx
00
Xxxxxxxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxxxxx, Esq.
Shereff, Friedman, Xxxxxxx & Xxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(b) if to USD:
U.S. Diagnostic Inc.
000 Xxxxx Xxxxxxx Xxxxx
Xxxx Xxxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: President
14. ENTIRETY OF AGREEMENT. The parties hereto acknowledge and
agree that this instrument and any other instruments specifically referred to
herein constitute and contain the entire agreement and understanding concerning
the subject matter hereof and supersede and replace all prior negotiations and
proposed agreements, whether written or oral, including but not limited to the
Letter of Intent. The parties, and each of them, warrant that no other party or
any agent or attorney of any other party has made any promise, representation or
warranty whatsoever not contained herein to induce them to execute this
instrument and the other documents referred to herein. The parties, and each of
them, represent that they have not executed this instrument or the other
documents referred to herein in reliance on any promise, representation or
warranty not contained herein.
15. EFFECTIVE DATE OF AGREEMENT. This Agreement shall become
effective
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immediately upon the execution hereof by each of the parties below.
16. HEADINGS. The various headings in this Agreement are
inserted for convenience only and shall not be deemed a part of or in any manner
affect this Agreement or any provision hereof.
17. BREACH OF THE AGREEMENT. In the event of a breach of any
provision of this Agreement, the prevailing party shall be entitled to recover
all provable damages, consequential or otherwise, in addition to such other
remedies as may be available under this Agreement, at law or in equity.
18. SEVERABILITY. Should any part, term or provision of this
Agreement be declared or determined by a court or other tribunal of competent
jurisdiction to be illegal, invalid or unenforceable, that term or provision
shall be deemed stricken from this Agreement and all of the other parts, terms
and provisions of this Agreement shall remain in full force and effect to the
fullest extent permitted by law.
19. TAXES. The parties hereto agree that any federal, state or
local tax that may be owed or payable by each of them in connection with this
Agreement shall be the sole and exclusive responsibility of each such party.
Each party hereto also acknowledges that no opposing party to this Agreement,
nor counsel for any such opposing party, has provided it with any advice
concerning the tax consequences of this Agreement or any other legal or factual
issue whatsoever.
20. ABSENCE OF ENCUMBRANCES. Except as provided in the Escrow
Agreement, the parties hereto represent and warrant that no person, entity or
attorney has any lien rights in or relating to the matters covered by this
Agreement, the CLAIMS they are releasing pursuant to
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this Agreement, or the consideration they are to receive pursuant to this
Agreement. Any party who breaches this warranty shall fully indemnify the other
party affected thereby including but not limited to reimbursement of the costs
of defending any CLAIMS brought by third parties. Any party damaged by such
breach is expressly granted the right to select its own counsel and control the
manner in which the defense of any such CLAIM is conducted.
21. ATTORNEYS' FEES. In the event of any dispute regarding
this Agreement or the assertion between the parties of any CLAIMS that are not
released pursuant to paragraph 4, the prevailing party shall be entitled to
recover its attorneys' fees, costs and all related expenses.
22. FLORIDA LAW.This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida.
BY AFFIXING HIS SIGNATURE BELOW, EACH OF THE PERSONS SIGNING
THIS SETTLEMENT AGREEMENT AND GENERAL RELEASE REPRESENTS THAT HE HAS READ AND
UNDERSTANDS THIS SETTLEMENT AGREEMENT AND GENERAL RELEASE, THAT HE IS AUTHORIZED
TO SIGN THIS SETTLEMENT AGREEMENT AND GENERAL RELEASE, AND THAT THE PARTY ON
BEHALF OF WHOM HE SIGNS THIS SETTLEMENT AGREEMENT AND GENERAL RELEASE AGREES TO
BE BOUND BY ITS TERMS.
Date: July 11, 1997 /s/ XXXXXXX X. XXXXXXX
_________________________
Xxxxxxx X. Xxxxxxx
U.S. DIAGNOSTIC INC.
Date: July 11, 1997 By: /s/ XXXXXX X. XXXX
_________________________
Xxxxxx X. Xxxx, President
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