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EXHIBIT 10.16
SETTLEMENT AGREEMENT AND MUTUAL RELEASES
THIS SETTLEMENT AGREEMENT AND MUTUAL RELEASES (this "Agreement") is
entered into effective the 19th day of March 2001 (the "Effective Date") by and
among x-XxxXxxx.xxx, a Nevada corporation ("e-Med"), XxxxxXX.xxx, Inc., a
Delaware corporation ("PrimeRX"), Network Pharmaceuticals, Inc., a Delaware
corporation ("Network"), PrimeMed Pharmacy Services, Inc., a Delaware
corporation ("PrimeMed"), Xxxx Xxxxx, M.D. ("Reddy"), Prime A Investments, LLC
("Prime A"), Xxxxx X. Xxxxxx ("Rombro"), Xxxxxxx Xxxxx ("Xxxxx") and Xxxxxxx X.
Xxxxx ("Xxxxx").
RECITALS:
WHEREAS, PrimeRX and e-Med are parties to a Management Services and
Joint Venture Agreement (the "Management Agreement") and a Master Preferred
Provider Agreement (the "Provider Agreement"); and
WHEREAS, e-Med and all of the shareholders of PrimeRX, including Reddy
and Prime A, entered into an Agreement dated April 7, 2000 (the "Stock
Agreement"); and
WHEREAS, Reddy and Prime A (collectively the "Shareholders") currently
hold common stock and preferred stock of PrimeRX as set forth in Exhibit "A"
attached hereto (the "PrimeRX Shares"). Reddy executed a written notice dated as
of April 12, 2000 for the acquisition by the Shareholders of 2,640,000 shares
(hereinafter "Shares") of common stock of e-Med (the "Stock Option Exercise") in
exchange for a portion of the common stock included in the PrimeRX shares
constituting approximately twenty nine (29) percent of the common stock of
PrimeRX (the "PrimeRX Option Shares"), pursuant to the Stock Agreement, and the
Shareholders abandoned the Shares by written notice on December 30, 2000 and
have not yet transferred the PrimeRX Option Shares to e-Med. Reddy and PrimeA
acquired no other shares in PrimeRX from and after April 12, 2000; and
WHEREAS, PrimeMed and Network are both wholly owned subsidiaries of
PrimeRX, and engaged in the business of owning, operating and managing
pharmacies and providing pharmacy related services; and
WHEREAS, disputes have arisen over the Management Agreement, the
Provider Agreement, the Stock Agreement and the validity of the Stock Option
Exercise, and the parties entered into a Standstill Agreement in order to
provide time for resolution of the disputes; and
WHEREAS, the parties now desire to resolve all of the disputes by
providing for an exchange by the Shareholders of all of their shares in PrimeRX
for all of the outstanding shares of Network, and providing for termination or
modification of the various agreements.
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NOW THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
EXCHANGE OF SHARES; CLOSING
1.1 Exchange of Shares. Subject to the terms and conditions set forth in
this Agreement, (i) the Shareholders will exchange all of their common and
preferred stock in PrimeRX, other than the PrimeRX Option Shares, for all of the
outstanding stock of Network (the "Share Exchange"); and (ii) the Shareholders
will transfer the PrimeRX Option Shares to e-Med. At the request of the
Shareholders, Prime RX will make a Section 338(h)(10) election with respect to
Network. It is understood that all of the outstanding the shares of Network (the
"Network Shares") are held as collateral for the CNB Loan (as hereinafter
defined), and that as a result, PrimeRX may not be able to transfer the Network
Shares to the Shareholders at the Closing. Accordingly, the PrimeRX Shares will
be held in escrow until such time as the Network Shares are free and clear of
all debts, liens and liabilities of Network, PrimeRX and PrimeMed or the consent
of City National Bank is obtained. If City National Bank agrees, the Network
Shares shall be re-issued in the name of the Shareholders and held until
released by City National Bank.
1.2 Exchange Value. The parties agree that the value of Network in
connection with the Share Exchange is the sum of Seven Million Five Hundred
Thousand Dollars ($7,500,000.00), and each party hereto agrees to use such value
for tax reporting purposes.
1.3 California Operations. Immediately prior to the Closing, e-Med,
PrimeRX and PrimeMed (collectively the "e-Med Parties") shall transfer to and
consolidate into Network the pharmacies, pharmacy assets, pharmacy management
and ancillary pharmacy businesses owned or conducted by the e-Med Parties and
their subsidiaries located in the High Desert Region in the State of California
(the "High Desert Operations"). For purposes of this Agreement, the High Desert
Operations shall be deemed to be included in Network.
1.4 Debts and Liabilities of Network.
1.4.1 Closing Obligations. Except for the obligations as
hereinafter provided, within sixty (60) days after the Closing, the e-Med
Parties will pay out of their own funds, and not out of assets of Network, all
of the legitimate debts, obligations and liabilities of Network, and expressly
including payment of all of Network's trade payables that are greater than
fifteen (15) days old (collectively the "Closing Obligations"). All
inter-company obligations appertaining or relating to the e-Med Parties and
Network (e.g., monies carried on the books of e-Med prior to this Agreement as
owed by PrimeRX to Network and by Network to an e-Med Party) are hereby
confirmed to have been forever and finally discharged, waived and given up by
virtue of this Agreement and the releases set forth below.
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1.4.2 City National Bank Loan. Network is currently indebted to
City National Bank in the approximate amount of Six Million Dollars
($6,000,000.00) (the "CNB Loan"), which is secured by all of the assets of
Network and the Network Shares (the "Security"). The e-Med Parties agree, within
one hundred eighty (180) days of the Closing, to pay or assume the CNB Loan in
such fashion as to obtain release of Reddy and Network from liability on the CNB
Loan and release of the Security for the CNB loan, so that all of the assets and
the stock of Network are owned by Network free and clear from all liens, debts
and encumbrances (hereinafter "CNB Release"). The e-Med Parties shall have the
right to extend the time for obtaining the CNB Release for an additional thirty
(30) days in consideration for the contribution of the then existing balance on
the e-med Advances, as hereinafter defined. The e-Med Parties acknowledge that
their failure to obtain the CNB Release will cause Network to incur costs not
contemplated by this Agreement, and the exact amount of such costs being
extremely difficult and impracticable to fix. Therefore, if the e-Med Parties do
not obtain the CNB Release in a timely manner hereunder within two hundred and
(210) days after the Closing, the e-Med Parties shall pay to Network the
additional sum of ten percent (10%) of the then unpaid balance of the CNB Loan
as a late charge. The parties agree that this late charge represents a fair and
reasonable estimate of the costs that Network will incur by reason of late
payment. Subsequent to paying this late charge, the e-Med Parties shall
nonetheless have the affirmative obligation obtain the CNB Release hereunder.
1.4.3 Bergen Xxxxxxxx Guaranty. It is acknowledged that Reddy
has personally guaranteed the payment of obligations to Bergen Xxxxxxxx incurred
by the e-Med Parties and Network in the purchase of pharmaceutical products (the
"Bergen Guaranty"). The e-Med Parties agree, within one hundred fifty (150) days
of the Closing, to obtain the release of Reddy from the Bergen Guaranty. It is
agreed that Reddy will not terminate his Bergen Guaranty so long as the total
liability under the Bergen Guaranty is not increased from the amount due as of
the Effective Date. The e-Med Parties acknowledge that their failure to obtain
the release of Reddy from the Bergen Guaranty will cause Reddy to incur costs
not contemplated by this Agreement, and the exact amount of such costs being
extremely difficult and impracticable to fix. Therefore, if Reddy is not timely
released from the Bergen Guaranty, the e-Med Parties shall pay to Reddy the sum
of ten percent (10%) of the then unpaid balance of the Bergen Guaranty as a late
charge. The parties agree that this late charge represents a fair and reasonable
estimate of the costs that Reddy will incur by reason of failure of the e-Med
Parties to perform their obligations under this Section 1.4.3. Subsequent to
paying this late charge, the e-Med Parties shall nonetheless have the
affirmative obligation to obtain the release of the Bergen Guaranty hereunder.
1.4.4 Other Personal Guarantees. The e-Med Parties agree, within
one hundred fifty (150) days of the Closing, to obtain the release of Reddy from
all legitimate debts, obligations and liabilities of the e-Med Parties and
Network which Reddy has either personally guaranteed or incurred direct
liability (such as entering into a lease in his name for the benefit of an e-Med
Party) by reason of a written instrument signed by Reddy, but not including
facility leases for pharmacies currently operated by Network. In order to assist
e-Med Parties in identifying and releasing these guaranteed obligations, Reddy
shall, within five
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(5) days following the Closing -- deliver copies of the written guaranty
instruments to the e-Med Parties with respect to all such legitimate
liabilities.
1.4.5 Working Capital Loan. Until such time as the e-Med Parties
have performed all of their obligations under this Section 1.4.2, the e-Med
Parties agree to provide working capital funding to Network in the amount of
Three Hundred Thousand Dollars ($300,000.00) per month (the "e-Med Advances").
The e-Med Advances will be repayable in full by Network no later than one (1)
year following the discharge of all obligations provided in Section 1.4.2, with
interest at the "applicable federal rate" (as defined in the Internal Revenue
Code) in existence as of the Closing. In the event that e-Med fails to timely
perform its obligations under Section 1.4.2, then the e-Med Advances shall be
contributed to the capital of Network as additional consideration for this
transaction. Network's obligations under this Section 1.4.5 are hereby
unconditionally guaranteed by Reddy.
1.4.6 Network Shall Pay $2.2 Million. Network hereby agrees to
pay a total of Two Million Two Hundred Thousand Dollars ($2,200,000.00) towards
debts of Network, to be applied first towards trade payables of Network not more
than fifteen (15) days old, then to other trade payables of Network, and then if
any portion of the assumed amount remains, to general debts of Network.
1.5 Management and Other Agreements. At the Closing, (i) the Management
Agreement and the Provider Agreement will be amended to expressly exclude
Network; (ii) the Stock Agreement shall be amended to eliminate the Shareholders
and Xxxxx; (iii) Xxxxx hereby agrees that he has abandoned, released and given
up -- forever any and all shares of capital stock he or anybody acting on his
behalf ever held in PrimeRX; (iv) other than the obligations under this
Agreement, all agreements, understandings and commitments by or among the
parties hereto shall be effectively terminated and of no further force and
effect in view of the effectiveness of the mutual general releases set forth
below. By executing this Agreement, Xxxxx acknowledges that Xxxxx has released
and forever given up any and all shares of capital stock he or anybody acting on
his behalf ever held in PrimeRX.
1.6 Network Management Agreement. Within thirty (30) days after the
Closing. Network and e-Med will enter into a new management services agreement
in the manner provided in this paragraph (the "Network Agreement"). Absent the
preparation and execution of a written instrument confirming the Network
Agreement , this paragraph shall constitute the Network Agreement. The Network
Agreement shall provide, and the legal agreement between the parties is, that
all accounting and financial functions of Network shall be managed exclusively
by a management team headed by Reddy, Xxx Xxxxx or assignee and on an ongoing
basis which is appointed under the Network Agreement and which is approved by
either Reddy, Xxx Xxxxx or their assignee (the "Network Management"). The
persons constituting the Network Management shall be employees of e-Med, but
shall have full operational authority to manage Network absent theft or fraud.
E-Med shall have no obligation to pay such employees. E-med shall have the right
to designate one or more persons who will, at the sole cost and expense of e-Med
and not Network, assist the Network Management in performing the management
functions under the Network Agreement. It is
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understood that the Network Management may devote such time and attention to
the business of Network as they deem necessary. Although the financial
statements of Network shall be consolidated with the financial statements of
e-Med while the Network Agreement are in effect (and it shall be obligation of
all parties, without any further consideration due any party, to do all
reasonable acts to effectuate consolidation of Network into e-Med, so long as
the Network Agreement is consistent with the provisions of this Agreement and
such acts do not increase costs to Network or the Reddy Parties), all operations
of Network shall be conducted out of its Redlands facility, which shall be
solely occupied by Network. The Network Management shall have sole authority
over all aspects of the business of Network, and all Network assets and
liabilities shall remain segregated from the assets and liabilities of the e-Med
Parties. Network liabilities shall be limited to those specifically related to
the business of Network or those historically paid by Network as a part of its
operations, and Network shall not be obligated to incur or guaranty or provide
assets as collateral for debts or obligations of the e-Med Parties, or any of
their subsidiaries or affiliated entities. No management fees shall be payable
to e-Med for services rendered under the Network Agreement. Network shall have
the right to terminate the Network Agreement immediately upon the occurrence of
any of the following: (i) in the event that there is any change to the Network
Management or interference with the operations of Network without the express
written consent of Reddy, Xxx Xxxxx or their assignee; or (ii) the sale of
Network to a third party which sale may not take place until after January 1,
2002; or (iii) the breach by an e-Med party of any of the material provision of
this Agreement.
1.7 Stock Agreement. It is understood that after the Network Shares have
been released from the security, for the CNB Loan, substantially all of the
outstanding stock of PrimeRX shall be held by e-Med, and e-Med shall be
responsible for resolving the claims of Rombro and Xxxxx as stockholders and
stock option holders of PrimeRX, and any other stock option holders of PrimeRX.
By executing this Agreement, Rombro and Xxxxx agree that e-Med shall and hereby
does have an irrevocable proxy over all of their shares of stock in PrimeRX for
all purposes.
1.8 Closing. The Share Exchange and other transactions contemplated by
this Agreement (the "Closing") shall take place at 10:00 a.m. on March 26, 2001
in the lobby of the St. Regis Hotel, or such other time and date as is agreed
upon by the parties (the "Closing Date").
1.8.1 Deliveries by e-Med. At the Closing, e-Med shall deliver
to Reddy the following: (i) corporate resolutions of the e-Med Parties
authorizing the execution and delivery of this Agreement and the performance by
the e-Med Parties of their obligations hereunder; (ii) stock assignment separate
from certificate for the Network Shares; (iii) evidence of the full satisfaction
of the Closing Obligations; and (iv) any other documents requested by Reddy and
reasonably required or necessary for the consummation of the transactions
contemplated by this Agreement.
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1.8.2 Deliveries by Reddy. At the Closing, Reddy shall deliver
to e-Med the following: (i) stock assignment separate from certificate for the
PrimeRX Option Shares, duly endorsed for transfer to e-Med; (ii) stock
assignment separate from certificate for the PrimeRX Shares other than the
PrimeRX Option Shares, duly endorsed for transfer to PrimeRX, with the original
certificates delivered to an escrow holder mutually agreed upon by the
Shareholders and e-Med; and (iii) any other documents requested by e-Med and
reasonably required or necessary for the consummation of the transactions
contemplated by this Agreement.
1.9 Releases.
1.9.1 Release by the e-Med Parties. Excepting the obligations
set out in this Agreement, the e-Med Parties, Rombro and Xxxxx, for themselves
and for their respective officers, directors, legal predecessors, successors,
assigns, and those who at any time purport for any reason to be acting in
association with it or on its behalf (collectively the "e-Med Group"), do hereby
forever and finally release, relieve, acquit, remise, absolve and discharge
Reddy, Prime A, Network and Xxxxx (collectively the "Reddy Parties") and their
respective past and present employees, officers, partners, associates,
affiliates, subsidiaries, related companies, joint venture partners, directors,
agents, representatives, attorneys, shareholders, spouses, children, fiancees
and former spouses from any and all losses, claims, debts, liabilities, demands,
obligations, promises, acts, omissions, agreements, costs and expenses, damages,
injuries, suits, actions and causes of action, of whatever kind or nature,
whether known or unknown, suspected or unsuspected, contingent or fixed, that
the e-Med Group may have against the Reddy Parties (or against their past and
present employees, officers, partners, associates, affiliates, subsidiaries,
related companies, joint venture partners, directors, agents, representatives,
attorneys, shareholders, spouses, children, fiancees and former spouses) based
upon, related to, or by reason of any matter, cause, fact, act or omission
occurring or arising at any moment from the beginning of time to the Closing ,
including, without limitation matters existing by reason of any contract
(express or implied in fact or implied in law), lien, liability, cause, fact,
thing, act or omission whatever, occurring or existing at any time up to the
Closing. Each person released by operation of this Agreement is an intended
third party beneficiary of this Agreement. Immediately upon execution of this
Agreement, e-Med shall dismiss with prejudice the pending action filed by e-Med
against Reddy, et al.
1.9.2 Release by the Reddy Parties. Excepting the obligations
set out in this Agreement, the Reddy Parties, for themselves and for their,
officers, directors, legal predecessors, successors, assigns, and those who at
any time purport for any reason to be acting in association with it or on its
behalf, do hereby forever and finally release, relieve, acquit, remise, absolve
and discharge the e-Med Group and their respective past and present employees,
officers, partners, associates, affiliates, subsidiaries, related companies,
joint venture partners, directors, agents, representatives, attorneys,
shareholders, spouses, children, fiancees and former spouses from any and all
losses, claims, debts, liabilities, demands, obligations, promises, acts,
omissions, agreements, costs and expenses, damages, injuries, suits, actions and
causes of action, of whatever kind or nature, whether known or unknown,
suspected or unsuspected, contingent or fixed, that the Reddy Parties may have
against the e-
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Med Group (or against their past and present employees, officers, partners,
associates, affiliates, subsidiaries, related companies, joint venture partners,
directors, agents, representatives, attorneys, shareholders, spouses, children,
fiancees and former spouses) based upon, related to, or by reason of any matter,
cause, fact, act or omission occurring or arising at any moment from the
beginning of time to the Closing, including, without limitation matters existing
by reason of any contract (express or implied in fact or implied in law), lien,
liability, cause, fact, thing, act or omission whatever, occurring or existing
at any time up to the Closing. Each person released by operation of this
Agreement is an intended third party beneficiary of this Agreement. The Reddy
parties represent and warrant that there are not, as of the date of this
Agreement, any pending lawsuits by any of them against any party hereto and thus
there is no lawsuit for them to dismiss after execution of this Agreement.
Notwithstanding the foregoing, Xxx Xxxxxx shall not be released individually
unless and until he executes an agreement releasing the Reddy Parties in the
exact same form and content of the releases contained herein; in the event he
does so, this Agreement and all releases set forth herein shall inure to Xxx
Xxxxxx'x benefit.
1.9.3 Release of Xxxxxxxx X. Xxxxx. The parties hereto
acknowledge that Xxxxxxxx X. Xxxxx -- a former director of the e-Med Group --
acted as an intermediary in connection with this Settlement Agreement and Mutual
Releases and the parties hereto absolutely and completely (a) stipulate, recite
and agree that Xxxxxxxx X. Xxxxx has no affirmative or implied obligation
hereunder; and (b) for themselves and for their, officers, directors, legal
predecessors, successors, assigns, and those who at any time purport for any
reason to be acting in association with it or on its behalf, do hereby, except
for the obligations under this Agreement, forever and finally release, relieve,
acquit, remise, absolve and discharge Xxxxxxxx X. Xxxxx and any of his past and
present employees, officers, partners, associates, affiliates, subsidiaries,
related companies, joint venture partners, directors, agents, representatives,
attorneys, shareholders, spouses, children, fiancees and former spouses from any
and all losses, claims, debts, liabilities, demands, obligations, promises,
acts, omissions, agreements, costs and expenses, damages, injuries, suits,
actions and causes of action, of whatever kind or nature, whether known or
unknown, suspected or unsuspected, contingent or fixed, that the Reddy Parties
or the e-Med Parties may have against Xxxxxxxx X. Xxxxx (or his past and present
employees, officers, partners, associates, affiliates, subsidiaries, related
companies, joint venture partners, directors, agents, representatives,
attorneys, shareholders, spouses, children, fiancees and former spouses) based
upon, related to, or by reason of any matter, cause, fact, act or omission
occurring or arising at any moment from the beginning of time to the Closing,
including, without limitation matters existing by reason of any contract
(express or implied in fact or implied in law), lien, liability, cause, fact,
thing, act or omission whatever, occurring or existing at any time up to the
Closing, but not including any obligations under this Agreement. Each person
released by operation of this Agreement is an intended third party beneficiary
of this Agreement. This release is subject to Xxxxxxxx X. Xxxxx executing the
mutual general release attached hereto as Exhibit "B."
1.9.4 Related Parties. As used in this Agreement, the term
"related companies" shall mean any person or company that a person released by
operation of this Agreement has an ownership interest in or a legal affiliation
with, whether that interest or
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legal affiliation is held or reflected as a partnership interest (in the case of
a partnership), a membership interest (in the case of a limited liability
company), a stock interest (in the case of a corporation), a joint venture
interest (in the case of other contractual relationships) or any other interest
recognized under the law, it being the intention of the parties that all
"related companies" of the persons released above shall by this document be
released as well from any liability and shall receive the same protection under
this Agreement as has been provided to the persons actually named herein.
1.9.5 Full Releases. By executing this Agreement below, Rombro,
Matko and Xxxxx approve of all terms and conditions of this Agreement and they
hereby agree that the foregoing releases are binding against each and all of
them.
1.9.6 Finality and Scope of Releases. The parties hereto
acknowledge and agree that it is their intention, through this Agreement and the
releases set forth above, to fully, finally and forever settle and release each
other from all those matters released herein, and all claims related thereto,
which do now exist, may exist or heretofore have existed or may hereafter exist.
It is the intent of the parties to this Agreement to release each other from
claims or causes of action arising from facts that were willfully, wrongfully,
or tortuously concealed from the aggrieved party.
1.9.7 Releases of Unknown or Unsuspected Claims. THE PARTIES
HAVE BEEN INFORMED BY THEIR RESPECTIVE ATTORNEYS AND ADVISORS ABOUT CALIFORNIA
CIVIL CODE SECTION 1542, AND THE PARTIES ACKNOWLEDGE THAT THEY ARE FAMILIAR WITH
AND HEREBY EXPRESSLY WAIVE THE PROVISIONS OF THIS SECTION, AND ANY SIMILAR
STATUTE, CODE, LAW OR REGULATION OF ANY STATE IN THE UNITED STATES TO THE
FULLEST EXTENT THAT THEY MAY WAIVE SUCH RIGHTS AND BENEFITS. SECTION 1542 OF THE
CALIFORNIA CIVIL CODE PROVIDES:
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.
1.9.8 Final Accord and Satisfaction. This Agreement and the
releases contained herein are intended to be final and binding between the
parties hereto and are further to be effective as a full and final accord and
satisfaction between the parties hereto, and each party to this Agreement
expressly relies on the finality of this Agreement as a substantial, material
factor inducing that party's execution of this Agreement.
1.9.9 The Effect of Discovery of Different or Additional Facts.
The parties hereto acknowledge that they are aware that they may hereafter
discover claims presently unknown or unsuspected, or facts in addition to or
different from those which they now know
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or believe to be true, or related or associated parties in addition to or
different from those which are listed herein and which the parties believe to
exist, pertaining to the matters released herein. Nevertheless, it is the
intention of the parties hereto, through this Agreement and the releases herein,
to fully, finally, and forever settle and release all such matters, and all
claims and parties related thereto, which do now exist, may exist in the future
or heretofore have existed. In furtherance of such intention, the releases
herein given shall be and remain in effect as a full and complete release of
such matters and parties, notwithstanding the discovery or existence of any such
additional or different claims or facts or parties related thereto by the
parties hereto. In entering into these releases, the parties hereto are not
relying upon any statement, representation, inducement or promise of any other
parties, except as expressly stated in this Agreement. It is the intent of the
parties to this Agreement to release each other from claims or causes of action
arising from facts that were willfully, wrongfully, or tortuously concealed from
the aggrieved parties.
1.9.10 Assumption of Risks. In entering into this Agreement and
the releases contained herein, the parties hereto recognize that no facts or
representations are ever absolutely certain; accordingly, each party hereto
assumes the risk of any misrepresentation, concealment or mistake, and if any
party hereto should subsequently discover that any fact the said party relied
upon in entering into this Agreement was untrue, or that any fact was concealed
from that party, or that any understanding of the facts or the law was
incorrect, said party shall not be entitled to set aside this Agreement by
reason thereof, regardless of any claim of fraud, misrepresentation, promise
made without the intention of performing it, fraud in the inducement,
concealment of fact, mistake of fact or law, or any other circumstances
whatsoever. This Agreement and the releases contained herein are intended to be
final and binding upon the parties hereto, and each of them, and is further
intended to be effective as a full and final accord and satisfaction among the
parties hereto, regardless of any claim of fraud, misrepresentation, promise
made without the intention of performing it, fraud in the inducement,
concealment of fact, mistake of fact or law, or any other circumstances
whatsoever. Each party relies upon the finality of this Agreement and the
releases herein as a material factor inducing the party's execution of this
Agreement.
1.9.11 Generality and Specificity of Releases; Covenant Not to
Xxx or Make Claims. The parties hereto intend these releases to be construed in
the broadest possible terms so that the effect of this Agreement is that the
persons released hereby may not be sued by the persons releasing them hereby,
whether directly or indirectly, and no claims may be made related to such
releases whether by way of offset or otherwise or indeed in any manner and for
any reason, under any theory of fact, under any theory of law, under any alleged
set of facts, under any alleged reading of the law and under or pursuant to any
claim of any kind, including (without limitation) claims for negligence, breach
of contract, fraud, theft, breach of fiduciary duty, lender liability and indeed
for any of the disputes set out in any of the recitals set forth above.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
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Each party to this Agreement hereto represents and warrants to the other
parties hereto as follows:
2.1 Authority and Authorization of Agreement. Such party has all
necessary power and authority to execute and deliver this Agreement and the
other closing documents to which it is a party, to consummate the transactions
contemplated by this Agreement, and to perform all the terms and conditions of
this Agreement and any closing documents to be performed by him or it. No other
proceedings on the part of such party are necessary to authorize this Agreement
or to consummate such transactions. This Agreement, and the other documents,
certificates, and instruments delivered by such party hereunder, have been duly
executed and delivered by such party and constitute the legal, valid, and
binding obligations of such party, enforceable against him or it in accordance
with their terms.
2.2 Consents and Approvals; No Violations. The execution and delivery by
such party of this Agreement and the other closing documents to which he or it
is a party do not, and the consummation by such party of the transactions
contemplated hereby and compliance by such party with the provisions hereof will
not, conflict with, or result in any violation of, or default (with or without
notice or lapse of time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligations or the loss of a benefit under
or result in the creation of any lien upon or right of first refusal with
respect to any of the properties or assets of such party under, (i) any
provision of the articles of incorporation or bylaws of such party; and (ii) any
loan or credit agreement, note, bond, mortgage, indenture, lease or other
agreement, obligation, instrument, permit, concession, franchise of license
applicable to such party.
2.3 Brokers. No agent, broker, person or firm acting on behalf of such
party, is, or will be, entitled to any commission or broker's or finder's fees
from such party, or from any person controlled by such party, in connection with
any of the transactions contemplated by this Agreement.
2.4 Litigation. There is no action pending or, to the knowledge of such
party, threatened against or affecting such party that would affect materially
the ability of such party to carry out the transactions contemplated by this
Agreement.
2.5 No Material Transactions. Except as set forth in Schedule 2.5, the
all parties hereto warrant to one another that, since April 7, 2000 to the
Closing, there have not been any (i) transactions by or on behalf of Network
other than in the ordinary course of business; (ii) change in the accounting
methods or practices; (iii) revaluation by Network of any of its assets; (iv)
declaration, setting aside, or payment of a dividend or other distribution in
respect of any of the capital stock of Network; (v) sale or transfer of any
Network assets, except in the ordinary course of business, or mortgage, pledge
or other encumbrance of any asset of Network other than in the ordinary course
of business; or (vi) transfer of any of the pharmacies or assets of the
pharmacies owned or operated by Network.
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2.6 Disclosure. There is no event, fact, condition or occurrence that
makes any of the representations and warranties contained in this Article II or
any certificate, schedule or exhibit prepared and delivered by or on behalf of
such party pursuant to this Agreement untrue or, if not disclosed, would make
such representations and warranties misleading in light of the circumstances
under which they were furnished.
ARTICLE III
POST-CLOSING COVENANTS
3.1 Cooperation. The parties hereto agree to cooperate as is necessary
to effectuate the terms of this Agreement and a smooth transition from an
accounting, tax and operational standpoint.
3.2 PrimeMed Name. From and after the Closing, Network shall have the
sole and exclusive right to use for all purposes the names "PrimeMed", "PrimeMed
Network", or any variation thereof, and the e-Med Parties shall have the sole
and exclusive right to use for all purposes the names PrimeRX or any variation
thereof.
3.3 Indemnity.
3.3.1 Indemnification by the e-Med Parties. The e-Med Parties
covenant and agree to indemnify, defend and hold harmless Reddy, Prime A and
Network (the "Reddy Group") and their subsidiaries, shareholders, managers,
members, directors, officers, employees, agents and affiliates from any and all
demands, claims, actions or causes or action, costs, expenses, losses, damages
and liabilities incurred or suffered, directly or indirectly, by any of them
(including, without limitation, reasonable legal fees and expenses) resulting
from or attributable to (i) the breach of any of the covenants, representations
or warranties of the e-Med Parties under this Agreement or any misstatement in
any one or more of the representations or warranties of the e-Med Parties made
in or pursuant to this Agreement; (ii) any and all obligations, debts or other
liabilities of Network relating to operations of Network by e-Med under the
Management Agreement prior to the Closing, other than Network's trade payables
not more than fifteen (15) days old, and not including breach of contract of an
obligation not arising in the ordinary course of business, or third party tort
claims, relating to operations of Network prior to April 7, 2000; and (iii) all
pharmacy leases and other obligations of PrimeMed and PrimeRX (but not Network)
personally guaranteed by Reddy or personally entered into by Reddy on behalf of
an e-Med Party.
3.3.2 Indemnification by the Reddy Group. The Reddy Group
covenants and agrees to indemnify, defend and hold harmless the e-Med Parties
from any and all costs, expenses, losses, damages and liabilities incurred or
suffered by the e-Med Parties (including reasonable legal fees and costs)
resulting from or attributable to (i) the breach of any of the covenants,
representation or warranties of the Reddy Group under this Agreement, or any
misstatement in any one or more of the representations or warranties of the
Reddy Group
11
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made in or pursuant to this Agreement; (ii) any and all obligations, debts or
other liabilities of Network relating to operations of Network subsequent to the
Closing; and (iv) breach of contract of an obligation not arising in the
ordinary course of business or third party tort claims relating to operations of
Network prior to April 7, 2000.
3.3.3 Notice, Cooperation and Opportunity to Defend. The party
indemnified under this Section 3.3 (the "Indemnified Party") shall promptly
notify in writing the indemnifying party (the "Indemnifying Party") of any
matter giving rise to an obligation to indemnify, and the Indemnifying Party
shall defend such claim at its expense with counsel reasonably acceptable to the
Indemnified Party, provided that the Indemnifying Party may not settle any such
claim without the consent of the Indemnified Party, which consent will not be
unreasonably withheld or delayed. The Indemnified Party agrees to cooperate with
the Indemnifying Party and to make reasonably available to the Indemnifying
Party any necessary records or documents in the possession of the Indemnified
Party that are necessary to defend such claim. If the Indemnified Party desires
to participate in the defense of a claim being defended by the Indemnifying
Party it may do so at its sole cost and expense, provided that the Indemnifying
Party shall retain control over such defense. In the event the Indemnifying
Party does not defend or settle such claim, the Indemnified Party may do so
without the Indemnifying Party's participation, in which case the Indemnifying
Party shall pay the expenses of such defense, and the Indemnified Party may
settle or compromise such claim without the Indemnifying Party's consent. The
failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations hereunder except to the extent
that the Indemnifying Party is actually prejudiced by such failure to give
notice.
3.4 Sale of Network. The Shareholders agree that they will not close a
transaction for the sale of tall of substantially all of the Network Shares or
the assets of Network at any time prior to January 1, 2002.
3.5 Survival of Representations, Warranties and Covenants.
Notwithstanding the closing of the transactions contemplated under this
Agreement, or any investigation made by or on behalf of a party hereto, the
representations, warranties and covenants of each of the parties to this
Agreement will continue to survive.
ARTICLE IV
MISCELLANEOUS
4.1 Knowledge of the Parties. Each party hereto is entering into this
Agreement based upon his and its knowledge of PrimeRX, Network, e-Med and
PrimeMed, that all parties stipulate that such knowledge was independently
sufficient justification for them to enter into the transactions contemplated
hereby, including the business, financial condition and prospects of such
entities, and that none of the agreements set out herein were founded upon any
representation or warranty by a party, other than as set forth herein. It is
understood that this Agreement is entered into in settlement and compromise of
disputed claims between the parties, and this Agreement does not constitute and
shall not be construed as an admission by any of the parties of any liability or
of any fact or matter whatsoever. The parties agree
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13
that they have exchanged consideration that is reasonably equivalent in value.
Each of the parties acknowledges and represents that such party has been given
an opportunity to consult with, and has been represented by and has consulted
with an attorney of such party's own choice in connection with the execution of
this Agreement, and such party has relied upon the advice of such attorney in
negotiating and executing this Agreement.
4.2 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, without regard to its
conflicts of laws provisions. Should any provision of this Agreement require
interpretation by an arbitrator or court of competent jurisdiction, it is agreed
by the parties that the arbitrator or court interpreting this Agreement shall
not apply a presumption that the terms of this Agreement shall be more strictly
construed against one party by reason of the rule of construction that a
document is to be construed more strictly against the party who by such party or
through such party's agent prepared such document, it being agreed that the
agents of all parties have participated in the preparation of this Agreement.
4.3 Notices. Any notice or other communication required or permitted
under this Agreement shall be sufficiently given if delivered in person or sent
by telecopy (confirmed telephonically) or by registered or certified mail
(postage prepaid), or by courier (return receipt requested), addressed as
follows, with a copy provided to each of the other parties: (i) to the e-Med
Parties: 0000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx 00000,
Attention: Xxxx Xxxxxxx Facsimile Number: (000) 000-0000; (ii) to PrimeRX,
PrimeMed and Network: 00000 Xxxx Xxxxxx Xxxx, Xxxxxxxxxxx, XX 00000, Attention:
Xxxx X. Xxxxx, M.D. Facsimile Number (000) 000-0000; and (iii) to Reddy and
Prime A: 00000 Xxxx Xxxxxx Xxxx, Xxxxxxxxxxx, XX 00000, Attention: Xxxx X.
Xxxxx, M.D. Facsimile Number (000) 000-0000. A party may change the address and
facsimile number to which notices are to be given by giving written notice as
provided above.
4.4 Parties in Interest. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors and permitted assigns.
4.5 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. In addition, the
signatures to this Agreement may be made by fax transmission, and the fax
transmittal signature may be attached to this Agreement as if it was an
original.
4.6 Entire Agreement. The parties warrant and represent that their
entering into this Agreement is free and voluntary and has not been induced or
influenced by any representation, promise or other agreements or understandings
other than those expressed herein. This Agreement, including the other documents
referred to herein and therein which form a part hereof and thereof, contain the
entire understanding of the parties hereto with respect to the subject matter
contained herein and therein. This Agreement supersedes all prior agreements and
understandings between the parties of any kind.
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14
4.7 Amendments and Waivers. This Agreement may not be modified or
amended except by a written instrument executed by all of the parties. Any
waiver of any term, covenant or condition of this Agreement by any party hereto
shall not be effective unless set forth in writing, signed by the party granting
such waiver, and in no event shall any such waiver be deemed to be a waiver of
any other term, covenant or condition of this Agreement or of any subsequent
waiver of the same term, covenant or condition.
4.8 Severability. In case any provision in this Agreement shall be held
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions hereof will not in any way be affected or impaired
thereby.
4.9 Additional Acts. The parties hereto agree to execute such other
documents and to take such other actions as may be reasonably necessary or
appropriate in order to carry out the purposes of this Agreement.
4.10 Arbitration and Jurisdiction. Any controversy or claim arising out
of or relating to this Agreement, or the breach thereof, shall be settled by
arbitration in accordance with the rules of the American Arbitration Association
in the County of Los Angeles, and judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. Each party
hereby irrevocably waives, and agrees not to assert, by way of motion, as a
defense, counterclaim or otherwise, in any action or proceeding with respect to
this Agreement, (i) any claim that is not personally subject to the jurisdiction
as provided herein for any reason other than the failure to lawfully serve
process; (ii) that it or its property is exempt or immune from such
jurisdiction; (iii) that the proceeding is brought in an inconvenient forum;
(iv) that the venue of such proceeding is improper; and (v) any right to a trial
by jury.
4.11 Remedies. Except as otherwise expressly provided herein, none of
the remedies set forth in this Agreement is intended to be exclusive, and each
party shall have all other remedies now or hereafter existing at law or in
equity or by statute or otherwise, and the election of any one or more remedies
shall not constitute a waiver of the right to pursue other available remedies.
4.12 Time of Essence. Time of is expressly made of the essence of this
Agreement.
4.13 Attorneys' Fees. If an arbitration or other proceeding is brought
for the enforcement of this Agreement, or because of any alleged or actual
dispute, breach, default or misrepresentation in connection with any of the
provisions of this Agreement, the successful or prevailing party shall be
entitled to recover reasonable attorney's fees and other costs incurred in that
action or proceeding in addition to any other relief to which such party may be
entitled.
4.14 Gender and Number. As used in this Agreement, the masculine,
feminine or neuter gender, and the singular or plural number shall be deemed to
include the others whenever the context so indicates.
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15
WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed on its own behalf or by its respective officer thereunto duly
authorized, all as of the day and year first above written.
XxxxxXX.xxx, Inc.
By: /s/ Xxxx Xxxxx, M.D.
-------------------------------------
Xxxx Xxxxx, M.D., Chairman
PrimeMed Pharmacy Services, Inc.
By: /s/ Xxx Xxxxx
-------------------------------------
Xxx Xxxxx, President
Network Pharmaceuticals, Inc.
By: /s/ Xxx Xxxxx
-------------------------------------
Xxx Xxxxx, President
x-XxxXxxx.xxx
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Xxxx Xxxxxxx, President
Prime A Investments LLC
By: /s/ Xxxx Xxxxx, M.D.
-------------------------------------
Xxxx Xxxxx, M.D., Manager
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16
/s/ Xxxx Xxxxx, M.D.
-------------------------------------
Xxxx Xxxxx, M.D.
/s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxxxx Xxxxx
-------------------------------------
Xxxxxxx Xxxxx
/s/ Xxxxxxx X. Xxxxx
-------------------------------------
Xxxxxxx X. Xxxxx
16
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EXHIBIT A
PrimeRX Shares
Xxxx Xxxxx, M.D. 7,168,500 Shares Common Stock
729,544 Shares Series A Preferred Stock
Prime A Investments, LLC 931,500 Shares Common Stock
17
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EXHIBIT B
MUTUAL RELEASES
This MUTUAL RELEASES ("Agreement") is made and created this 14th day of
March, 2001, by and between Xxxx Xxxxx, M.D., Prime A Investments, LLC, Xxxxx
X. Xxxxxx, Xxxxxxx Xxxxx, Xxxxxxx X. Xxxxx and Xxxxxxxx X. Xxxxx.
WHEREAS, the parties hereto have engaged in several disputes which they
now intend to settle and release.
NOW, THEREFORE, the parties - for the mutual promises and covenants set
out below - do hereby agree as follows:
ARTICLE I
1. Releases. Excepting the obligations set out in this Agreement, the
parties hereto, for their respective officers, directors, legal predecessors,
successors, assigns, and those who at any time purport for any reason to be
acting in association with them or on their behalf, do hereby forever and
finally release, relieve, acquit, remise, absolve and discharge each other and
their respective past and present employees, officers, partners, associates,
affiliates, subsidiaries, related companies, joint venture partners, directors,
agents, representatives, attorneys, shareholders, spouses, children, fiancees
and former spouses from any and all losses, claims, debts, liabilities, demands,
obligations, promises, acts, omissions, agreements, costs and expenses, damages,
injuries, suits, actions and causes of action, of whatever kind or nature,
whether known or unknown, suspected or unsuspected, contingent or fixed, that
they may have against each other (or against their past and present employees,
officers, partners, associates, affiliates, subsidiaries, related companies,
joint venture partners, directors, agents, representatives, attorneys,
shareholders, spouses, children, fiancees and former spouses) based upon,
related to, or by reason of any matter, cause, fact, act or omission occurring
or arising at any moment from the beginning of time to and including the date
hereof, including, without limitation matters existing by reason of any contract
(express or implied in fact or implied in law), lien, liability, cause, fact,
thing, act or omission whatever, occurring or existing at any time up to the
current date. Each person released by operation of this Agreement is an intended
third party beneficiary of this Agreement.
2. Related Parties. As used in this Agreement, the term "related
companies" shall mean any person or company that a person released by
operation of this Agreement has an ownership interest in or a legal affiliation
with, whether that interest or legal affiliation is held or reflected as a
partnership interest (in the case of a partnership), a membership interest (in
the case of a limited liability company), a stock interest (in the case of a
corporation), a joint venture interest (in the case of other contractual
relationships) or any other interest recognized under the law, it being the
intention of the parties that all "related companies" of the persons released
above shall by this document
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be released as well from any liability and shall receive the same protection
under this Agreement as has been provided to the persons actually named herein.
3. Finality and Scope of Releases. The parties hereto acknowledge and
agree that it is their intention, through this Agreement and the releases set
forth above, to fully, finally and forever settle and release each other from
all those matters released herein, and all claims related thereto, which do now
exist, may exist or heretofore have existed or may hereafter exist. It is the
intent of the parties to this Agreement to release each other from claims or
causes of action arising from facts that were willfully, wrongfully, or
tortuously concealed from the aggrieved party.
4. Releases of Unknown or Unsuspected Claims. THE PARTIES HAVE BEEN
INFORMED BY THEIR RESPECTIVE ATTORNEYS AND ADVISORS ABOUT CALIFORNIA CIVIL CODE
SECTION 1542, AND THE PARTIES ACKNOWLEDGE THAT THEY ARE FAMILIAR WITH AND
HEREBY EXPRESSLY WAIVE THE PROVISIONS OF THIS SECTION, AND ANY SIMILAR STATUTE,
CODE, LAW OR REGULATION OF ANY STATE IN THE UNITED STATES TO THE FULLEST EXTENT
THAT THEY MAY WAIVE SUCH RIGHTS AND BENEFITS. SECTION 1542 OF THE CALIFORNIA
CIVIL CODE PROVIDES:
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.
5. Final Accord and Satisfaction. This Agreement and the releases
contained herein are intended to be final and binding between the parties hereto
and are further to be effective as a full and final accord and satisfaction
between the parties hereto, and each party to this Agreement expressly relies
on the finality of this Agreement as a substantial, material factor inducing
that party's execution of this Agreement.
6. The Effect of Discovery of Different or Additional Facts. The
parties hereto acknowledge that they are aware that they may hereafter
discover claims presently unknown or unsuspected, or facts in addition to or
different from those which they now know or believe to be true, or related or
associated parties in addition to or different from those which are listed
herein and which the parties believe to exist, pertaining to the matters
released herein. Nevertheless, it is the intention of the parties hereto,
through this Agreement and the releases herein, to fully, finally, and forever
settle and release all such matters, and all claims and parties related
thereto, which do now exist, may exist in the future or heretofore have
existed. In furtherance of such intention, the releases herein given shall be
and remain in effect as a full and complete release of such matters and
parties, notwithstanding the discovery or existence of any such additional or
different claims or facts or parties related thereto by the parties hereto. In
entering into these releases, the parties hereto are not relying upon any
statement, representation, inducement
20
or promise of any other parties, except as expressly stated in this Agreement.
It is the intent of the parties to this Agreement to release each other from
claims or causes of action arising from facts that were willfully, wrongfully,
or tortuously concealed from the aggrieved parties.
7. Assumption of Risks. In entering into this Agreement and the releases
contained herein, the parties hereto recognize that no facts or representations
are ever absolutely certain; accordingly, each party hereto assume the risk of
any misrepresentation, concealment or mistake, and if any party hereto should
subsequently discover that any fact the said party relied upon in entering into
this Agreement was untrue, or that any fact was concealed from that party, or
that any understanding of the facts or the law was incorrect, said party shall
not be entitled to set aside this Agreement by reason thereof, regardless of
any claim of fraud, misrepresentation, promise made without the intention of
performing it, fraud in the inducement, concealment of fact, mistake of fact or
law, or any other circumstances whatsoever. This Agreement and the releases
contained herein are intended to be final and binding upon the parties hereto,
and each of them, and is further intended to be effective as a full and final
accord and satisfaction among the parties hereto, regardless of any claim of
fraud, misrepresentation, promise made without the intention of performing it,
fraud in the inducement, concealment of fact, mistake of fact or law, or any
other circumstances whatsoever. Each party relies upon the finality of this
Agreement and the releases herein as a material factor inducing the party's
execution of this Agreement.
8. Generality and Specificity of Releases; Covenant Not to Xxx or Make
Claims. The parties hereto intend these releases to be construed in the
broadest possible terms so that the effect of this Agreement is that the
persons released hereby may not be sued by the persons releasing them hereby,
whether directly or indirectly, and no claims may be made related to such
releases whether by way of offset or otherwise or indeed in any manner and for
any reason, under any theory of fact, under any theory of law, under any
alleged set of facts, under any alleged reading of the law and under or
pursuant to any claim of any kind, including (without limitation) claims for
negligence, breach of contract, fraud, theft, breach of fiduciary duty, lender
liability and indeed for any of the disputes set out in any of the recitals set
forth above.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Each party to this Agreement hereto represents and warrants to the other
parties hereto as follows:
9. Authority and Authorization of Agreement. Such party has all
necessary power and authority to execute and deliver this Agreement and the
other closing documents to which it is a party, to consummate the transactions
contemplated by this Agreement, and to perform all the terms and conditions of
this Agreement and any closing documents to be performed by him or it. No other
proceedings on the part of such party are necessary to authorize this Agreement
or to consummate such transactions.
21
This Agreement, and the other documents, certificates, and instruments
delivered by such party hereunder, have been duly executed and delivered by
such party and constitute the legal, valid, and binding obligations of such
party, enforceable against him or it in accordance with their terms.
10. Consents and Approvals; No Violations. The execution and delivery
by such party of this Agreement and the other closing documents to which he or
it is a party do not, and the consummation by such party of the transactions
contemplated hereby and compliance by such party with the provisions hereof
will not, conflict with, or result in any violation of, or default (with or
without notice or lapse of time, or both) under, or give rise to a right of
termination, cancellation of acceleration of any obligations or the loss of a
benefit under or result in the creation of any lien upon or right of first
refusal with respect to any of the properties or assets of such party under,
(i) any provision of the articles of incorporation or bylaws of such party; and
(ii) any loan or credit agreement, note, bond, mortgage, indenture, lease or
other agreement, obligation, instrument, permit, concession, franchise of
license applicable to such party.
11. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, without regard to its
conflicts of laws provisions. Should any provision of this Agreement require
interpretation by an arbitrator or court of competent jurisdiction, it is
agreed by the parties that the arbitrator or court interpreting this Agreement
shall not apply a presumption that the terms of this Agreement shall be more
strictly construed against one party by reason of the rule of construction that
a document is to be construed more strictly against the party who by such party
or through such party's agent prepared such document, it being agreed that the
agents of all parties have participated in the preparation of this Agreement.
12. Notices. Any notice or other communication required or permitted
under this Agreement shall be sufficiently given if delivered in person or sent
by telecopy (confirmed telephonically) or by registered or certified mail
(postage prepaid), or by courier (return receipt requested), addressed to the
last known address of the party.
13. Parties in Interest. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors and permitted assigns.
14. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. In addition, the
signature to this Agreement may be made by fax transmission, and the fax
transmittal signature may be attached to this Agreement as if it was an
original.
15. Entire Agreement. The parties warrant and represent that their
entering into this Agreement is free and voluntary and has not been induced or
influenced by any representation, promise or other agreements or understandings
other than those expressed herein. This Agreement, including the other
documents referred to herein and therein which form a part hereof and thereof,
contain the entire understanding of the parties
22
hereto with respect to the subject matter contained herein and therein. This
Agreement supersedes all prior agreements and understandings between the
parties of any kind.
16. Amendments and Waivers. This Agreement may not be modified or amended
except by a written instrument executed by all of the parties. Any waiver of
any term, covenant or condition of this Agreement by any party hereto shall not
be effective unless set forth in writing, signed by the party granting such
waiver, and in no event shall any such waiver be deemed to be a waiver of any
other term, covenant or condition of this Agreement or of any subsequent waiver
of the same term, covenant or condition.
17. Severability. In case any provision in this Agreement shall be held
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions hereof will not in any way be affected or impaired
thereby.
18. Arbitration and Jurisdiction. Any controversy or claim arising out of
or relating to this Agreement, or the breach thereof, shall be settled by
arbitration in accordance with the rules of the American Arbitration
Association in the County of Los Angeles, and judgment upon the award rendered
by the arbitrator may be entered in any court having jurisdiction thereof. Each
party hereby irrevocably waives, and agrees not to assert, by way of motion, as
a defense, counterclaim or otherwise, in any action or proceeding with respect
to this Agreement, (i) any claim that is not personally subject to the
jurisdiction as provided herein for any reason other than the failure to
lawfully serve process; (ii) that it or its property is exempt or immune from
such jurisdiction; (iii) that the proceeding is brought in an inconvenient
forum; (iv) that the venue of such proceeding is improper, and (v) any right to
a trial by jury.
19. Remedies. Except as otherwise expressly provided herein, none of the
remedies set forth in this Agreement is intended to be exclusive, and each
party shall have all other remedies now or hereafter existing at law or in
equity or by statute or otherwise, and the election of any one or more remedies
shall not constitute a waiver of the right to pursue other available remedies.
20. Time of Essence. Time of is expressly made of the essence of this
Agreement.
21. Attorneys' Fees. If an arbitrator or other proceeding is brought for
the enforcement of this Agreement, or because of any alleged or actual dispute,
breach, default or misrepresentation in connection with any of the provisions
of this Agreement, the successful or prevailing party shall be entitled to
recover reasonable attorney's fees and other costs incurred in that action or
proceeding in addition to any other relief to which such party may be entitled.
22. Gender and Number. As used in this Agreement, the masculine, feminine
or neuter gender, and the singular or plural number shall be deemed to include
the others whenever the context so indicates.
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Prime A Investments LLC
By: /s/ XXXX XXXXX, M.D.
-------------------------------
Xxxx Xxxxx, M.D., Manager
/s/ XXXX XXXXX, M.D.
----------------------------------
Xxxx Xxxxx, M.D.
/s/ XXXXX X. XXXXXX
----------------------------------
Xxxxx X. Xxxxxx
/s/ XXXXXXX XXXXX
----------------------------------
Xxxxxxx Xxxxx
