Matrix Pharmaceutical, Inc. x. Xxxxx Custom Ins. Co., et al. Settlement
Agreement
SETTLEMENT AGREEMENT AND
RELEASE IN FULL OF ALL CLAIMS
This Settlement Agreement and Release in Full of All Claims
("Agreement") is made and entered into this 3rd day of April, 1998 by, between
and among Matrix Pharmaceutical Company, Inc. (hereinafter "Matrix"), Chubb
Custom Insurance Company and Vigilant Insurance Company (hereinafter
"Defendants") (collectively "the Parties"), with reference to the following
facts, representations, warranties and promises:
WITNESSETH
WHEREAS, Matrix brought suit against Defendants in the matter filed in
the Alameda County Superior Court-Hayward Division, case no. H-192476 9,
entitled Matrix Pharmaceutical, Inc. x. Xxxxx Custom Insurance Company, et al.
(hereinafter "the Case"); and
WHEREAS, Defendants appeared through their counsel of record; and
WHEREAS, the Case arose from Defendants' denial of coverage under
insurance policies issued by Defendants to Matrix; and
WHEREAS, Defendants vigorously deny that they did anything wrong, have
any liability under any theory whatsoever, or so caused Matrix's damages, and
that by entering into this agreement, Defendants do not concede they have any
liability for any claims brought or which could have been brought by Matrix, and
specifically deny any liability whatsoever for Matrix's claims; and
WHEREAS, the Parties desire to avoid the expense, burden, and
uncertainty of continued litigation; and
WHEREAS, the Parties reached a compromise during a two-part mediation
before Justice Xxxxx X. Low of JAMS Endispute in San Francisco on March 3, 1998
and April 3, 1998.
NOW THEREFORE, it is hereby agreed among the Parties as follows:
1. In consideration of (1) the total payment by Defendants to Matrix in
the amount of Four Million Dollars ($4,000,000.00) to occur on or before April
13, 1998 and (2)
Matrix Pharmaceutical, Inc. x. Xxxxx Custom Ins. Co., et al. Settlement
Agreement
the return by Defendants, its lawyers and consultants of all of the documents
(including electronic data and those used as exhibits) Defendants obtained
relating to the underlying lawsuit, entitled Collagen Corporation v. Matrix
Pharmaceutical, Inc., Xxxxx Xxxxx Xxxxxx Xxxxxxxx Xxxxx, xxxx xx. XX 000000, to
Matrix's counsel, Xxxxxxx, Xxxxxxx & Xxxxxxxx, LLP, to occur on or before April
20, 1998. The receipt of and adequacy of the consideration described herein is
hereby acknowledged as an accord and satisfaction, and Matrix agrees that its
claims, in their entirety, as asserted against Defendants, may and shall be
dismissed with prejudice and without any further cost to either party.
2. Matrix, its successors, assigns, representatives, agents, employees,
attorneys, and any person or persons acting by, through or for it, hereby fully
releases, acquits and forever discharges Defendants, their successors, assigns,
officers, directors, representatives, agents, employees, attorneys, insurers,
and any person or persons acting by, for or through them from any and all
liability, actual or potential, for any and all claims, damages or demands
whatsoever in law or in equity which Matrix has, might have asserted, have
claimed or now or in the future might claim arose from or in connection with the
Collagen Action.;
3. With respect to the claims released herein, Matrix and Defendants
each expressly waive any rights or benefits available to them under 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
the settlement with the debtor.
4. It is understood and agreed that this is a full and final release of
any and all claims and that the parties agree that it shall apply to all
unknown, unanticipated, unsuspected, and undisclosed claims, demands,
liabilities, actions, or causes of action, as well as those which are now known,
anticipated, suspected or disclosed.
5. This Agreement is made and entered into as a free and voluntary act,
and has been done only after Matrix consulted with its attorneys, Xxxxxxx,
Phleger & Xxxxxxxx, LLP,
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Matrix Pharmaceutical, Inc. x. Xxxxx Custom Ins. Co., et al. Settlement
Agreement
and Defendants consulted with their attorneys, Xxxxxxx Xxxx & Xxxxxxx LLP
(and formerly Xxxxxx & Xxxx).
6. The Parties agree that any and all actions necessary to secure an
immediate dismissal with prejudice of Plaintiff's claims in this lawsuit as
against Defendants shall be taken by the Parties and that each party shall bear
its own cost and expense incurred in connection with such claims and the
dismissal thereof.
7. The undersigned representatives have full authority to enter into
this Agreement.
8. In the event that any of the terms, conditions or covenants
contained in this Agreement are held to be invalid, then such invalidity shall
not effect the remaining terms, conditions, or covenants contained herein, all
of which shall remain in full force and effect.
9. This Agreement may be executed in counterparts, all of which shall
be considered one and the same document.
10. The Stipulation for Settlement CCP Section 664.6 executed in
Justice Low's presence on April 3, 1998, is attached hereto as an exhibit to
this Agreement, however, to the extent that any of its terms conflict with those
stated herein. this Agreement shall control.
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Matrix Pharmaceutical, Inc. x. Xxxxx Custom Ins. Co., et al. Settlement
Agreement
11. This Agreement contains the entire agreement between the parties,
and the terms of this Release are contractual and not a mere recital.
Dated this _____________ day of ____________, 1997.
/s/ J R Xxxxx
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MATRIX PHARMACEUTICAL, INC.
by J R Xxxxx, its Chief Operating Officer.
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print name title
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CHUBB CUSTOM INSURANCE COMPANY
by , its
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VIGILANT INSURANCE COMPANY
by , its
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