SETTLEMENT AGREEMENT WITH MUTUAL RELEASES
This SETTLEMENT AGREEMENT WITH MUTUAL RELEASES ("Settlement") is
entered into as of June 15, 2005, by and between HEALTH EXPRESS USA, INC.
("Health Express") and XXXXXXX X. XXXXXXXX ("Bleiwise") with reference to the
following facts and claims:
RECITALS
A. Health Express issued a 5% convertible debenture in the amount of
$60,000 to Bleiwise in August, 2003 (the "Debenture").
B. The outstanding balance, including accrued interest, on the
Debenture as of April 30, 2005 is Sixty Four Thousand Four Six Hundred
Ninety-Five and 89/100 Dollars ($64,695.89) (the "Outstanding Debenture
Amount").
C. Health Express and Bleiwise desire to terminate the Debenture and to
mutually release one another from any liability arising prior to the date hereof
in connection with the matters set forth herein, the Debenture or the
relationship between Health Express and Bleiwise.
D. In consideration for terminating the Debenture, Health Express shall
issue shares of its common stock, par value $0.001 per share (the "Common
Stock") to Bleiwise.
X. Xxxxxxxx and Health Express expressly acknowledge that certain
provisions of the Settlement shall not become effective until the necessary
shareholder approval of the shareholders of Health Express is obtained pursuant
to a Schedule 14C Information Statement (the "Information Statement") relating
to, among other things, that certain Settlement Agreement and Mutual Release
dated the date hereof by and among Health Express, The Xxxxxx Corp., The Junie
Corp., Health Express Franchise Company and Xxxxx Xxxxxxxxxx (the "Settlement
Agreement").
NOW, THEREFORE, in consideration of the foregoing, and the mutual
covenants and conditions contained herein, the parties hereto agree as follows:
1. PURPOSE OF AGREEMENT. This Agreement is entered into in good faith
for the purpose of settling completely those claims of each of the parties to
this Settlement with regard to the matters described in the Recitals
hereinabove. Neither this Settlement nor any of its terms is admissible in any
proceeding between the parties, except a proceeding to interpret or enforce its
terms.
2. EFFECTIVE DATE AND VOTING AGREEMENT. The provisions of Sections 3, 4
and 5 of the Settlement shall be effective as of a date five (5) business days
after the shareholders of Health Express approve the provisions of the
Settlement pursuant to the Information Statement (the "Closing Date"). The
parties to the Settlement agree to vote all shares of Common Stock of Health
Express owned by it in favor of all proposals presented in the Information
Statement, including but not limited, the terms of the Settlement and the terms
of the share exchange between Health Express and Aim American Mortgage, Inc.
3. TERMINATION OF THE OBLIGATIONS. Effective as of the Closing Date,
the obligations due and owing under the Debenture shall be terminated.
4. ISSUANCE OF SHARES. On the Closing Date, Health Express shall issue
a number of shares of its Common Stock based on the following formula (a) the
Outstanding Debenture Amount plus accrued interest of Five Percent (5%) per
annum from the date hereof through the Closing Date, divided by (b) Eighty
Percent (80%) of the average closing bid price of the Common Stock for the three
lowest trading days of the five trading days immediately preceding the Closing
Date.
5. MUTUAL RELEASES OF ALL CLAIMS. Except to the extent expressly set
forth herein:
(a) Bleiwise Release. As of the Closing Date, Bleiwise
releases and discharges Health Express its, stockholders, officers, directors,
agents, employees, parent corporation, subsidiaries, affiliates, successors and
assigns (collectively, the "Health Express Released Parties") from all actions,
causes of action, suits, debts, dues, sums of money, accounts, reckonings,
bonds, bills, specialties, covenants, contracts, controversies, agreements,
promises, variances, trespasses, damages, judgments, extents, executions, claims
and demands whatsoever, in law or equity, which Bleiwise, his successors or
assigns ever had, now have, or hereafter can, shall or may have against Health
Express and the Health Express Released Parties for, upon, or by reason of any
matter, cause or thing whatsoever from the beginning of the world to the Closing
Date.
(b) Health Express Release. As of the Closing Date, Health
Express, releases and discharges Bleiwise, his agents, successors and assigns
(collectively, the "Bleiwise Released Parties") from all actions, causes of
action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills,
specialties, covenants, contracts, controversies, agreements, promises,
variances, trespasses, damages, judgments, extents, executions, claims and
demands whatsoever, in law or equity, which Health Express, its successors or
assigns ever had, now have, or hereafter can, shall or may have against Bleiwise
and the Bleiwise Released Parties, for, upon, or by reason of any matter, cause
or thing whatsoever from the beginning of the world to the Closing Date.
(d) Both of the parties hereto acknowledge and agree that
nothing contained in paragraph (b) and (c) of this Section 5 shall release or
discharge either of them from the rights, duties and obligations assumed under
this Settlement.
6. REPRESENTATIONS AND WARRANTIES.
(a) Mutual: Each party to the Settlement represents and
warrants that it has not heretofore assigned or transferred, or purported to
assign or transfer, any of the claims released pursuant to this Settlement to
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any other person not a party hereto and that it is fully entitled to compromise
and settle same.
(b) Each party shall indemnify the other party against all
costs, expenses, and judgments, including all attorney's fees incurred, arising
in connection with the breach of the party's representations, warranties,
agreements or undertakings herein, or in the event any third party shall assert
any of the claims released pursuant to this Settlement based upon the purported
assignment or transfer thereof to such third party.
7. FLORIDA LAW. All questions with respect to the construction of this
Settlement and the rights and liabilities of the parties hereto shall be
governed by the laws of the State of Florida.
8. NO ADMISSIONS. Notwithstanding any other provisions hereof, each
party acknowledges that this Settlement effects the settlement of claims which
are denied and contested by the other, and that nothing contained herein shall
be construed as an admission of liability by or on behalf of the other parties,
all of which liability is expressly denied.
9. OWN COUNSEL. Each party to the Settlement acknowledges that it has
been represented by counsel of its own choice throughout all of the negotiations
which preceded the execution of this Settlement and in connection with the
preparation and execution of this Settlement.
10. COVENANT NOT TO XXX. Except insofar as a party's rights are
concerned in connection with a breach or default of this Settlement by the other
party, each party agrees that it will forever refrain and forebear from
commencing, instituting or prosecuting any lawsuit, action or other proceeding
against the other parties based on, arising out of, or in connection with any
claim, debt, liability, demand, obligation, cost, expense, action, or cause of
action that is released and discharged by reason of this Settlement. Without
limitation and notwithstanding any other provisions hereof, each party's rights
and remedies in connection herewith shall be limited solely to the right to
recover damages, if any, in an action at law. No party shall be entitled to, and
each party hereby absolutely, irrevocably and unconditionally waives and agrees
not to seek or assert any form of equitable or injunctive relief including, but
not limited to, any temporary, preliminary or permanent injunction with respect
to, or other right to impair or interfere with, the rights or exercise thereof
granted to or retained by a party hereunder, as the case may be.
11. COUNTERPARTS. This Settlement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute one and the same
instrument, respectively. This Settlement may be transmitted for reproduction
and execution by any means now known or hereafter devised including, without
limitation, facsimile or electronic file transmission, and may be printed on
different paper formats or in different fonts, any or all of which may result in
variations to the pagination and appearance of the counterpart versions of this
Settlement. The execution and delivery of counterparts of this Settlement, by
facsimile or by original manual signature, regardless of the means or any such
variation in pagination or appearance shall be binding upon the parties
executing this Settlement.
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12. FURTHER ACTS. Each party agrees to perform such further acts and
execute, acknowledge and deliver such additional instruments or documents,
promptly upon the other party's request therefor, which are reasonably necessary
or desirable to confirm, protect, or carry out any of the provisions of this
Settlement.
13. CAPTIONS. The captions of paragraphs contained in this Settlement
are for reference only and are not to be construed in any way as a part of this
Settlement.
14. OWN COSTS. Each party will bear its own costs, expenses, and
attorney's fees that it has heretofore incurred in connection with or arising
out of the matters set forth in the Recitals hereinabove.
15. ATTORNEY'S FEES. In the event of any action, suit, petitions,
appeals or other proceeding concerning the interpretation, validity, performance
or breach of any of the terms and conditions of this Settlement, the prevailing
party shall recover reasonable attorney's fees, costs and expenses incurred in
each and every such proceedings.
16. ENTIRE AGREEMENT. This Settlement represents the entire agreement
between the parties to the Settlement with respect to the subject matter hereof
and supersedes all prior and contemporaneous oral and written agreements and
discussions. Each party hereto covenants that it has not entered into this
Settlement as a result of any representation, agreement, inducement or coercion,
except to the extent specifically provided herein. Each party hereto further
covenants that the consideration recited herein is the only consideration for
entering into this Settlement, and that no promises or representations of other
or further consideration have been made by any person. This Settlement may be
amended only by an agreement in writing and duly executed by both parties
hereto. This Settlement shall be binding upon and inure to the benefit of the
parties hereto and to their respective heirs, representatives, successors and
assigns.
17. SEVERABILITY. In the event any covenant, condition, or other
provision herein is held to be invalid, void, or illegal, the same shall be
deemed severed from the remainder of this Settlement and shall in no way affect,
impair or invalidate any other covenant, condition, or other provision herein.
If any covenant, condition, or other provision herein is held to be invalid due
to its scope or breadth, such covenant, condition, or other provision shall be
deemed valid to the extent of the scope or breadth permitted by law.
18. AUTHORITY. Each party warrants and represents that each of the
persons and/or entities executing this Settlement is duly empowered and
authorized to do so.
[SIGNATURES ON THE FOLLOWING PAGE]
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WHEREFORE, the parties have executed this Settlement as of the date
first above written.
HEALTH EXPRESS USA, INC.
___________________________________
By:________________________________
Its:________________________________
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Xxxxxxx X. Xxxxxxxx
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