MUTUAL RELEASE AND SETTLEMENT AGREEMENT
This Mutual Release and Settlement Agreement ("Agreement") is entered
into effective February 1, 2002, by and between Accurate Designs, Inc. ("ADI")
and Xxxxxx Xxxxxxxx ("Xxxxxxxx") on one hand, and Rubicon Medical, Inc.
("Rubicon"), on the other. ADI, Xxxxxxxx and Rubicon are sometimes referred
to collectively herein as the "Parties."
RECITALS
On April 17, 2000, Rubicon and ADI entered into an Asset Purchase
Agreement, which was amended on March 16, 2001. In connection with the
Amendment, Rubicon executed and delivered a Note to ADI ("Note").
Rubicon and Xxxxxxxx entered into an Employment Agreement dated April 17,
2000. Subsequently, Rubicon terminated the Employment Agreement.
Certain disputes have arisen between the parties concerning their
respective rights and obligations under the Asset Purchase Agreement, as
amended, the Note and the Employment Agreement.
The parties now desire to resolve all of the pending disputes between
them on the terms set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
Purchase of the Xxxxxxxx Shares. Xxxxxxxx hereby sells, assigns, and
transfers to Rubicon all of his right, title and interest in and to all of his
50,000 outstanding shares of Rubicon common stock for the total sum of
$100,000.00, payable in cash or cash equivalent upon the execution and
delivery of this Agreement. In exchange for such payment, Xxxxxxxx will
deliver to Rubicon stock certificate representing his 50,000 shares of Rubicon
duly endorsed in blank or accompanied by executed stock powers.
Return of ADI Assets. Rubicon will return the ADI assets originally
transferred to it by ADI, to the extent still possessed by Rubicon. The
Parties understand and agree such assets include tools, parts, equipment and
other such items used or generated in building machines for tipping catheter
tubes. Because of the nature of the ADI assets, Xxxxxxxx, in the company of a
Rubicon representative and Rubicon, will cooperate in good faith to identify
all such assets at a time mutually convenient to the Parties. The ADI assets
shall include all lab equipment, tipping equipment and machines, tipping
machine components, product samples, force testing tools, tipping tooling,
components, chemicals, customer lists, contacts, purchase orders, files,
quotations, electronic files, photos, manuals, advertising, technology and any
and all other such items and intangibles related to the catheter tipping
equipment business of ADI. The ADI assets shall also include the shipping
containers and materials in their current state used for shipping of the
machines. Xxxxxxxx shall remove from Rubicon all ADI assets by no later than
March 15, 2002. Thereafter, Rubicon may, at its sole discretion, retain or
dispose of the ADI assets not retrieved by Xxxxxxxx.
The ADI assets do not include any equipment, tools or such items that
were owned by Rubicon prior to April 17, 2000, specifically including but not
limited to the Xxxxxx-Xxxxxxxx unit, serial number 970037 that is configured
for the Xxxxx tube flaring operation. The ADI assets also do not include
tooling, components, equipment, samples or other such items that have been
purchased by Rubicon's customers, as evidenced by purchase orders dated after
April 17, 2000. Those assets are considered property of the respective Rubicon
customers and shall remain at Rubicon unless or until those customers request
of Rubicon, in writing, that specific assets be transferred to Xxxxxxxx.
Receipt of such customer assets by Xxxxxxxx shall then be acknowledged in
writing at the time of receipt. The ADI assets also do not include ancillary
equipment purchased by Rubicon that may be used for manufacturing processes
not tied to catheter tube tipping, specifically including, but not limited to,
the Memmert oven, the Blue M hot water bath, hand tools, air fittings, and all
Leica microscopes.
Return of all Right, Title and Interest in and to ADI. Rubicon hereby
releases to Xxxxxxxx all of Rubicon's right, title and interest of any kind or
nature in and to the ADI Assets and any and all ADI stock, business of any
kind, including goodwill, and the right to use the name Accurate Designs, Inc.
Xxxxxxxx shall be responsible for all existing warranty items on tipping
equipment previously sold by Rubicon.
Xxxxxxxx'x Computer: Rubicon will provide to Xxxxxxxx the Gateway
computer, the monitor and printer used by Xxxxxxxx in his office at Rubicon.
Transfer of the Machines: Rubicon has five tipping machines (the
"Machines") in inventory which include frames. The Machines are in the same
condition or state of completion as they were at the time of the termination
of the Employment Agreement on January 4, 2002. At a time mutually agreed
upon, Xxxxxxxx may remove the Machines from Rubicon, free of any encumbrances,
liens, or claims of any kind or nature. The Machines shall be returned in "as
is" "where as" and without any warranties whatsoever, including implied
warranties of merchantability or fitness for purpose.
Cobra Payments: As long as Xxxxxxxx shall be qualified for Cobra
coverage, Rubicon will pay or cause to be paid Xxxxxxxx'x Cobra premium for up
to eighteen months. Rubicon will cooperate fully in arranging for Cobra
coverage by providing the necessary documentation to allow Xxxxxxxx to elect
Cobra benefits.
Dismissal of the Arbitration: Rubicon will cause the Arbitration to be
withdrawn. Rubicon shall alone be responsible for any costs, fees, dues, or
other obligations caused or incurred by the filing of the Arbitration, and
shall indemnify Xxxxxxxx and hold him harmless from and against any such costs
or obligations to the AAA caused by the filing of the Arbitration. Xxxxxxxx
hereby represents and agrees that he has not been informed of and is not aware
of any such fees or obligations arising from, or caused by the filing of, the
Arbitration.
Non-Competition: Rubicon hereby agrees that it shall not compete with
Xxxxxxxx or ADI in the business of tipping equipment sales for two years from
the date of this Agreement. Further, should Rubicon in the future engage in
the business of tipping equipment sales, it shall not use, rely on, build or
cause to be built, copy, or mimic ADI's methods, technology, processes, or
equipment, except where such methods, etc., are standard industry practice.
Rubicon may use any tube tipping or forming methods, technology, processes, or
equipment that are readily available from sources other than ADI, or may use
or create such methods, etc. that are not unique to ADI for the development
and production of Rubicon products during the two year non-compete period.
Continued Inquiries: Rubicon understands and agrees that former, current
or prospective customers may continue to inquire of Rubicon regarding the
catheter tipping business being returned to Xxxxxxxx/ADI pursuant to this
Agreement, and agrees to refer all such inquiries to Xxxxxxxx at 000-000-0000
or such other phone or address as provided by Xxxxxxxx.
Installment Payments Made Under the Asset Purchase Agreement: Rubicon
waives and releases any claim to the installment payments already made under
the Asset Purchase Agreement and ADI and Xxxxxxxx waive and release any right
to further payments, both cash and stock, under the Asset Purchase Agreement
as amended.
Cost Reimbursement for the Machines: Xxxxxxxx shall pay to Rubicon
$15,000 per machine on four of the Machines, as a full reimbursement of costs,
for a total of $60,000. Payment on the first four Machines sold shall be made
to Rubicon within ten days after a Machine has been fully paid for by its
purchaser, it being expressly understood and agreed that if Xxxxxxxx sells a
Machine on terms and is paid in installments, payment to Rubicon shall be due
within ten days of Xxxxxxxx'x receipt of the final such installment on a given
Machine. Notwithstanding the foregoing, the entire $60,000 shall be paid to
Rubicon on or before December 31, 2002.
Construction of Agreement and Attorney Fees: The Parties agree that this
Agreement shall be construed according to Utah law. The prevailing party in
any litigation brought to enforce this Agreement shall be entitled to its
costs and reasonable attorney fees.
Mutual Release. Except as set forth herein, the Parties above-named, for
themselves and their predecessors, successors, assigns, heirs, officers,
directors, agents, employees, executors, administrators, and legal
representatives, hereby release and forever discharge each of the other
parties and their respective predecessors, successors, assigns, heirs,
officers, directors, agents, employees, executors, administrators, and legal
representatives, of and from any and all claims, demands, damages, actions,
causes of action, or suits in equity, of whatever kind or nature, whether
heretofore or hereafter occurring, or whether known or not known to the
parties for or because of any matter or thing done, admitted, or suffered to
be done by any such parties, prior to and including the date hereof.
Independent Representation. The parties hereto represent and warrant
that they have been independently represented by counsel of their own choice
and that each party has made a full investigation into the facts surrounding
this matter, the settlement and release reflected in this Agreement and that
each enters into this Agreement based upon their own investigation and the
advice of their respective counsel. The parties hereto acknowledge that each
has read and understands the effect of the above and foregoing instrument and
executes the same of its own free will and accord for the purposes and
consideration set forth. Neither of the parties nor anyone on their behalf
have made any representation of fact, opinion or promise to induce the other
to enter into this Agreement.
Confidentiality. The terms of this Agreement shall remain confidential
and neither Rubicon or ADI shall permit to be disclosed or disclose the terms
of this Agreement.
Entire Agreement. There are no oral understandings, statements, promises
or inducements contrary to or inconsistent with the terms of this Agreement.
This Agreement may be modified, amended, waived or supplemented only by means
of a writing signed by all of the parties. This Agreement contains the entire
agreement between the parties and supersedes any and all prior agreements,
arrangements, or understandings between the parties on all subjects in any way
related to the transactions or occurrences described in or related to this
Agreement. The Parties hereto specifically acknowledge and agree that neither
shall have any further obligations to each other under the Asset Purchase
Agreement, as amended, the Note or the Employment Agreement.
Signatures: This Agreement may be signed in counterparts.
Accurate Designs, Inc. Rubicon Medical, Inc.
By /s/ Xxxxxx Xxxxxxxx By /s/ Xxxxx X. Xxxxxx
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Its President Its Vice President
/s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
