EXHIBIT 10.70
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release ("Agreement"), is entered into
as of July __, 2002, between Xxxxxx X. Corp. ("Trebor") and Xxxxxx Xxxx ("Okum")
(collectively "Plaintiffs"), on the one hand, and x-XxxXxxx.xxx, now known as
Med Diversified, Inc. ("Med"), PrimeRX, Inc. ("Prime"), Xxxx X. Xxxxxxx, sued
herein as "Xxxxxxxx Xxxxxxx" ("Xxxxxxx"), Xxxxx Xxxxxx ("Xxxxxx"), Xxxxx
Xxxxxxxxxxxx ("Xxxxxxxxxxxx"), and Chartwell Diversified Services, Inc.
("Chartwell") (collectively "Defendants"), on the other hand, with reference to
the following facts:
RECITALS
A. On or about June 29, 2001, Plaintiffs filed Los Angeles County
Superior Court action No. BC253387, styled XXXXXX X. CORP., ET AL. V.
X-XXXXXXX.XXX, ET AL., seeking, by way of a First Amended Compliant filed on or
about October 1, 2001 (collectively the "Compliant"), declaratory relief and
damages for alleged breach of contract, promissory estoppel, fraud, negligent
misrepresentation, tortious interference with contract and prospective economic
advantage, and breach of confidentiality agreement. (The "Action")
B. Defendants deny each of the allegations in the Complaint and continue
to do so.
C. The parties now desire to settle the claims raised by Plaintiffs in
the Action, in accordance with the terms of this Agreement.
NOW, THEREFORE, it is hereby agreed as follows:
1. Med shall pay Plaintiffs a total of $75,000, payable $25,000 on
execution of this Agreement by Plaintiffs (whether or not all Defendants have so
signed) and $50,000 in five equal installments of $10,000 per week, commencing
seven days from the date of payment of the initial $25,000.
2. Upon execution of this Agreement, Plaintiffs shall cause a Notice of
Settlement to be filed in the Action with the Court pursuant to California Rules
of Court, Rule 225.
3. Upon payment of the final installment, Plaintiffs shall cause a
Request for Dismissal with Prejudice as to the entire action to be filed with
the Court in the Action. Each party shall bear its or his own costs and legal
fees incurred in connection with the Action.
4. Except with respect to the obligations created by this Agreement,
Plaintiffs, on the one hand, and Defendants, on the other hand, mutually release
each other and their respective officers, directors, shareholders, successors,
heirs, assigns,
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representatives, and attorneys, past, present or future, from any and all
claims, demands, actions, causes of action, obligations and/or debts, known or
unknown, for all injuries and damages arising out of, or in any way connected
with, or related to, or due to the filing and/or prosecution of the Action and
any and all claims which were or could have been raised in the Action.
(Collectively, the "Released Claims".)
5. This is a full and final release applying to all unknown and
unanticipated injuries or damages arising out of the Released Claims, as well as
those now known or disclosed, and the parties waive all rights or benefits which
they may now have or in the future may have, arising out of or related to the
Released Claims, under the terms of Section 1542 of the Civil Code of the State
of California which reads:
"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 understand that they must have sustained serious injuries or
consequential damages, arising out of or related to the Released Claims, which
have not manifested themselves and which are presently unknown, but nevertheless
the parties deliberately intend to and do hereby release these possible future
claims.
6. Liability for the subject matter of the Action and the Released Claim
is disputed and this Agreement shall not be construed as an admission thereof.
7. The parties admit, acknowledge and declare that they have had the
advice or the opportunity to receive the advice of counsel of their own choosing
in connection with the form and content of this Agreement and advisability of
entering into same.
8. The parties warrant and represent to each other that they have not
previously assigned, whether involuntarily, or by operation of law, any Released
Claims, or any part of them, to any third party, including any governmental
entity. Each of the parties shall indemnify, defend and hold harmless each other
with respect to any action or claim brought by any third party purporting to be
a transferee or assignee of any of the claims released pursuant to this
Agreement.
9. It is understood and agreed to by the parties that the agreements,
undertakings, warranties, acts, representations and other things done or to be
done by them or their attorneys by virtue of this Agreement shall run to and be
binding upon all shareholders, principals, heirs, beneficiaries, executors,
successors, predecessors, administrators, trustees, agents, assigns, attorneys,
employees, independent contractors, lenders and representatives of the parties.
10. This Agreement contains the entire agreement between the parties
hereto. This Agreement is executed without reliance upon any representation by
any person concerning the nature or extent of injuries or legal liability
therefore, and the parties have
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carefully read and understood the comments of this Agreement and sign their
name, as their own free act.
11. This Agreement may be ? in several ? parts and all so executed shall
continue and agreement which shall be binding on all of the parties hereto.
12. This Agreement shall be governed by California Law.
IN WITNESS WHEREOF the undersigned have approved and executed this
Agreement effective as of the date set forth above.
XXXXXX X. CORPORATION
By: /s/ Xxxxxx Xxxx
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Its: [ILLEGIBLE]
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Title: [ILLEGIBLE]
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/s/ Xxxxxx Xxxx
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XXXXXX XXXX
x-XXXXXXX.XXX, now known as,
MED DIVERSIFIED, INC.
By:
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Its:
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Title:
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PrimeRX, INC.
By:
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Its:
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Title:
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CHARTWELL DIVERSIFIED SERVICES, INC.
By:
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Its:
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Title:
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XXXX X. XXXXXXX
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XXXXX XXXXXX
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XXXXX. XXXXXXXXXXXX
APPROVED AS TO FORM AND CONTENT
ROBINS, KAPLAN, XXXXXX & CRIEST LLP
By: /s/ Xxxxx Xxxxxx
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J. XXXXX XXXXXX
Attorneys for Plaintiffs Xxxxxx X.
Corporation and Xxxxxx Xxxx
FRANDZEL ROBINS BLOOM & CSATU, L.C.
By:
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XXXXXX X. XXXXXX, III
Attorneys for Defendants,
x-XxxXxxx.xxx, now known as Med
Diversified, Inc., Xxxx X. Xxxxxxx,
Xxxxx Rombre, Xxxxx Xxxxxxxxxxxx,
Xxxxxxxx Xxxxx, and Chartwell
Diversified Services, Inc.
MANATT XXXXXX & XXXXXXXX
By:
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XXXXXX XXXXX
Attorneys for Defendant PrimeRX, Inc.
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