EXHIBIT 10.68
NO. 2000-47334
XXXX XXXXX XXXXX AND | IN THE DISTRICT COURT OF
XXX X. XXXXX, III, |
|
VS. | XXXXXX COUNTY, TEXAS
|
X-XXXXXXX.XXX AND |
VIDIMEDIX ACQUISITION |
CORPORATION, JOINTLY AND SEVERALLY | 113th JUDICIAL DISTRICT
MUTUAL COMPRISE, SETTLEMENT AND RELEASE AGREEMENT
I.
RECITALS
This Mutual Comprise, Settlement and Release Agreement ("Agreement") is
entered into by the parties identified below and is a binding contract pursuant
to which the parties have fully and finally settled the controversies existing
between them according to the following terms:
II.
THE PARTIES
The parties to this Agreement are as follows:
- Xxx X. Xxxxx, III; his agents, predecessors, successors, affiliates,
subsidiaries, employees, former employees, shareholders, lenders,
officers, directors and attorneys;
- Xxxx Xxxxx Xxxxx; her agents, predecessors, successors, affiliates,
subsidiaries, employees, former employees, shareholders, lenders,
officers, directors and attorneys;
- x-Xxxxxxx.xxx, Inc., a/k/a x-Xxxxxxx.xxx, their agents, predecessors,
successors, affiliates, subsidiaries, employees, former employees,
shareholders, lenders, officers, directors and attorneys;
- MedDiversified, Inc., its agents, predecessors, successors,
affiliates, subsidiaries, employees, former employees, shareholders,
lenders, officers, directors and attorneys;
- Vidimedix Acquisition Corporation its agents, predecessors,
successors, affiliates, subsidiaries, employees, former employees,
shareholders, lenders, officers, directors and attorneys.
The foregoing are hereinafter at times referred to collectively as the
"Parties" or "Parties releases herein". Xxx X. Xxxxx, III and Xxxx Xxxxx Xxxxx
are hereinafter at times referred to collectively as "Plaintiffs" x-Xxxxxxx.xxx,
Inc., Vidimedix Acquisition Corporation and MedDiversified, Inc., are
hereinafter at times referred to collectively as "Defendants".
III.
AGREEMENT
Whereas, Plaintiffs have sued Defendants in Cause No. 2000-47334 in the
113th Judicial District Court of Xxxxxx County, Texas over the merger and
transfer of assets of Vidimedix Corporation into Vidimedix Acquisition
Corporation, a wholly owned subsidiary of x-Xxxxxxx.xxx, and over the transfer
of stock, the handling of the settlement of claims, the settlement of claims
related to that merger, breaches of contract, consulting agreements, settlement
agreements, fraud, defamation, misrepresentation, devaluation of stock, claims
for attorneys' fees, interest, expenses and costs of court, and other torts and
claims, the subjects of which are involved in this lawsuit.
For the mutual covenants and consideration set forth herein, it is the
intention of the Parties to irrevocably and unconditionally release all of the
Parties, from all obligations, claims, or causes of actions, suits, proceedings,
or otherwise, known or unknown, now existing or hereinafter arising from or in
any way connected with any of the claims and causes of action
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which were brought in or could have been brought in Cause No. 2000-47334,
provided that the partial consideration in the amount of SIX HUNDRED THOUSAND
AND NO/100 DOLLARS ($600,000) is paid by Defendants on or before July 15, 2002.
If this partial consideration is not paid, then this release is null, void and
unenforceable. Further, if the $600,000 is paid, the sole remedy by Plaintiffs
against Defendants in the event of any default will be enforcement of the
Judgment, which is attached hereto as Exhibit "A", less any payment made on that
judgment.
For the mutual covenants and consideration set forth herein, it is also the
intention of the Parties to irrevocably and unconditionally release all of the
Parties, from all obligations, claims, or causes of actions, suits, proceedings,
or otherwise, known or unknown, now existing or hereinafter arising from or in
any way connected with any of the claims and causes of action which were brought
in or could have been brought in Cause No. EDCV 01-00803-VAP, currently on file
in the United States District Court for the Central District of California, or
which were brought in or could have been brought in Cause No. BC249782,
previously on file in the Superior Court of the State of California, for the
County of Los Angeles.
Now, therefore, for and in consideration of the mutual obligations and
promises herein contained, and for good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the Parties to this Agreement
agree as follows:
1) Defendants will pay to Plaintiffs and their attorneys, Xxxxx, Ortesky
& Xxxxxxxxx, P.C., the sum of SIX HUNDRED THOUSAND AND NO/100 DOLLARS
($600,000) on or before July 15,2002. Defendants will pay to
plaintiffs and their attorneys the additional sum of THREE HUNDRED
THOUSAND AND NO/100 DOLLARS ($300,000), paid in the amount of ONE
HUNDRED THOUSAND AND NO/100 DOLLARS ($100,000) per month, for the
months of August,
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September and October. These monthly payments for August, September
and October shall be paid in equal weekly installments for each week
of each month of said three month period, with each weekly installment
to be delivered to an account of Plaintiffs' counsel's choice, via
wire transfer, on or before close of business on the Friday of each
week of each payment month. Defendants shall pay to Plaintiffs and
their attorneys the additional sum of SIX HUNDRED THOUSAND AND NO/100
DOLLARS ($600,000), paid in the amount of ONE HUNDRED FIFTY THOUSAND
AND NO/100 DOLLARS ($150,000) per month for the months of November and
December, 2002, and January and February, 2003. The monthly payments
for November, December, January and February shall be paid in equal
weekly installments for each week of each month of said four month
period, with each weekly installment to be delivered to an account of
Plaintiffs' counsel's choice, via wire transfer, on or before the
close of business on the Friday of each week of each payment month.
Should any payment fall on a banking holiday in which the banks for
either Defendant's payor bank or Plaintiffs' payee bank is closed,
payment may be made on the following business day which is not a
banking holiday and on which said bank or banks are open for business.
2) The payments by Defendants to Plaintiffs, as set forth in the
preceding paragraph, will be secured by an Agreed Judgment in the
amount of ONE MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS
($1,500,000), in the form of the Judgment attached hereto as Exhibit
"A". Each payment made by Defendants to Plaintiffs, as set forth
herein, shall automatically reduce the Judgment and Judgment lien by
the amount of that payment. Said Judgment shall only be filed by
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Plaintiffs in the event that Defendants are in default in their
payments, as set forth herein, and have failed to come current on
their payments within fifteen days of the receipt of written notice of
default by Plaintiffs. Plaintiffs acknowledged the receipt of this
Agreed Judgment by their execution of this Agreement and by their
signatures herein. Within five business days of the receipt of the
final payment under this Agreement, Plaintiffs shall file a Take
Nothing Judgment in the above referenced cause, in the form of the
Judgment attached hereto as Exhibit "B", which fully and finally
releases Defendants from any and all obligations and debts under the
above referenced Agreed Judgment, with each party to bear its own
costs of court. Within five business days of the execution of this
Agreement, Defendants and Plaintiffs agree to file a stipulation of
dismissal and request for the entry of an agreed Order of Dismissal in
Cause No. EDCV 01-00803-VAP, without prejudice and with all costs to
be borne by the party incurring same, and to be made with prejudice
after the filing of the Take Nothing Judgment in Cause No. 2000-47334.
3) Plaintiffs agree to release, discharge, and forever hold Defendants,
their agents, employees, officers, assigns, directors, attorneys,
affiliates, lenders, shareholders, predecessors, successors and
subsidiaries harmless from any and all claims, demands or suits, known
or unknown, fixed or contingent, liquidated or unliquidated, including
but not limited to any and all claims over the Vidimedix merger, the
transfer of stock, the handling of the settlement of claims, the
settlement of claims related to that merger, claims for or pertaining
to breaches of contract, consulting agreements, settlement agreements,
fraud, defamation, misrepresentation, conversion, theft/use of trade
secrets, devaluation of stock,
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attorneys' fees, interest, tax obligations, expenses and costs of
court, and any and all other claims, in contract or in tort, whether
or not asserted in the above cause, in Cause No. EDCV 01-00803-VAP, or
in Cause No. BC249782, or arising from or related to the events and
transactions which are the subject matter of those causes. WAIVER OF
CALIFORNIA CIVIL CODES SECTION 1542. Plaintiffs hereby acknowledge
their familiarity with the provisions of Section 1542 of the
California Civil Code and hereby expressly waive and release any and
all rights or benefits they have or may have there under, or under any
other federal or statutory rights or rules, or principals of common
law or equity, or those of any jurisdiction, government or political
subdivision, similar to Section 1542 ("similar provision"). Thus, no
party to this agreement may invoke the benefits of Section 1542 or any
similar provision in order to prosecute or insert in any manner any
claims that are released under this agreement. Section 1542 of the
California Code provides:
"A general release does not extend to claims which the creditor
does not know or which 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."
4) Defendants agree to release, discharge, and forever hold Plaintiffs,
their agents, employees, officers, assigns, directors, attorneys,
affiliates, lenders, shareholders, predecessors, successors and
subsidiaries harmless from any and all claims, demands or suits, known
or unknown, fixed or contingent, liquidated or unliquidated, including
but not limited to any and all claims over the Vidimedix merger, the
transfer of stock, the handling of the settlement of claims, the
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settlement of claims related to that merger, claims for or pertaining
to breaches of contract, consulting agreements, settlement agreements,
fraud, defamation, misrepresentation, conversion, theft/use of trade
secrets, devaluation of stock, attorneys' fees, interest, expenses and
costs of court, and any and all other claims, in contract or in tort,
whether or not asserted in the above cause, in Cause No. EDCV
01-00803-VAP, or in Cause No. BC249782, or arising from or related to
the events and transactions which are the subject matter of those
causes. WAIVER OF CALIFORNIA CIVIL CODES SECTION 1542. Defendants
hereby acknowledge their familiarity with the provisions of Section
1542 of the California Civil Code and hereby expressly waive and
release any and all rights or benefits they have or may have there
under, or under any other federal or statutory rights or rules, or
principals of common law or equity, or those of any jurisdiction,
government or political subdivision, similar to Section 1542 ("similar
provision"). Thus, no party to this agreement may invoke the benefits
of Section 1542 or any similar provision in order to prosecute or
insert in any manner any claims that are released under this
agreement. Section 1542 of the California Code provides:
"A general release does not extend to claims which the creditor
does not know or which, 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) Each signatory to this Agreement warrants and represents that he or
she has the authority to bind the parties for whom that signatory
acts.
6) Each of the Parties to this Agreement has entered into the Agreement
freely and
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without duress, after having consulted with attorneys and advisors of
their own choice. Each of the Parties understands and agrees that the
terms and conditions of this Agreement are contractual and not mere
recital. The Parties further understand and agree that this Agreement
has been fully negotiated by Plaintiffs and Defendants and that
neither Plaintiffs nor Defendants are to be considered to be the
drafters of this Agreement.
7) This Agreement is a compromise of disputed claims between the Parties
to this Agreement only, and shall never, at any time for or for any
purpose, be considered an admission of liability or wrongdoing by any
of the Parties released herein. The Parties released herein expressly
deny any such liability or wrongdoing. The consideration set forth
herein is hereby accepted by the Parties in full compromise, and
settlement, and in accord and satisfaction of the released matters,
including all consequences thereof which may thereafter develop, as
well as those already developed or now apparent. The Parties hereby
acknowledge that the consideration recited herein is good, valuable
and sufficient consideration for the Agreements herein.
8) The Parties to this Agreement, for themselves and for all persons
claiming by, through or under them, hereby fully, finally and forever
release, acquit, discharge and covenant not to xxx the Parties
released herein, or their respective successors, predecessors, agents,
employees, officers, assigns, directors, attorneys, affiliates,
lenders and shareholders or similar entities or individuals, jointly
and severally, of and from and with respect to any and all
obligations, claims, liabilities, demands, losses, expenses,
controversies, or causes of action of every kind and character
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whatsoever, known or unknown, whether asserted or unasserted, whether
now existing or hereafter arising, which are directly or indirectly
related to any or all of the claims and causes of action released
herein, except that the Parties expressly reserve the right to xxx for
breach of this settlement agreement. This covenant is only to become
effective upon the completion of all payments called for under this
agreement. The Parties hereto further agree that all consulting
agreements and employment agreements between Plaintiffs and Defendants
are hereby terminated and are of no force or effect.
9) This Agreement shall be binding upon and inure to the benefit of the
Parties released herein, their heirs, agents, representatives,
successors, predecessors, agents, employees, officers, assigns,
directors, attorneys, affiliates, lenders and shareholders.
10) This Agreement contains the entire agreement between the Parties and
supersedes any and all prior agreements, arrangements or
understandings, whether written or oral, between any or all of the
Parties relating to the matters released herein. No oral
understandings, statements, promises or inducements contrary to the
terms of this Agreement exist.
11) If any provision of this Agreement is held to be illegal, invalid or
unenforceable under present or future state or federal laws or rules
and regulations propagated there under, such provision shall be fully
severable, and this Agreement shall be construed and enforced as if
such illegal, invalid or unenforceable provision had never compromised
a part hereof, and the remaining provisions of this Agreement shall
remain in full force and effect and shall not be effected by any
illegal, invalid
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or unenforceable provision or by its severance from this Agreement.
Furthermore, in lieu of such illegal, invalid, or unenforceable
provision, there shall be automatically included as part this
Agreement a provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible and be legal, valid and
enforceable.
12) It is understood and agreed that this Agreement shall be governed by,
construed and enforced in accordance with, and subject to the laws of
the State of Texas, without regard to any conflict of laws principles.
Venue for and jurisdiction over any claim or dispute pertaining to
this agreement shall be in the 113th Judicial District Court of Xxxxxx
County, Texas. The parties agree that prior to filing suit over any
dispute pertaining to this Agreement, the Parties will first seek to
resolve any such dispute through mediation with Xxxxxxx "Micky" Xxxxx.
This Agreement may be amended only by a written instrument executed
and agreed to by all the Parties, and may not be changed, terminated
or modified orally.
13) This Agreement may be executed in multiple counterparts, each of which
shall be deemed an original for all purposes. The Parties further
agree that faxed signatures to this Agreement may be accepted as
originals. All such signatures shall be effective as of the 15th day
of July, 2002.
14) Plaintiffs understand and agree that they are solely responsible for
the payment of all of their attorney's fees, expenses and costs of
court, and that Plaintiffs will defend and indemnify Defendants from
any such claims which are brought by, through or under Plaintiffs.
15) As of the date of this Agreement, July, 15, 2002, the Parties agree to
keep the terms,
10
conditions and amounts of settlement confidential and may not disclose
the same, except as required by law, the Internal Revenue Service, the
Securities and Exchange Commission, or by any lenders, C.P.A.'s,
attorneys, financial advisors, potential business partners, or
business partners, but only for tax purposes, as required to
effectuate and complete this agreement, or to the extent necessary
to respond to legitimate business enquiries. This confidentiality
agreement does not apply to communications with immediate family
members. The Parties agree that this confidentiality is waived in the
event of non-performance under this agreement.
16) Not withstanding the foregoing or anything in this agreement to the
contrary, all rights, if any, and all defenses, if any, between Xxx X.
Xxxxx, III, and any of the Defendants concerning Xxx X. Xxxxx, III's
limited guarantee in the approximate amount of $37,000 for an alleged
debt of Vidimedix Corporation to Mid-South Telecommunications Company
survives this agreement. It is expressly understood by the Parties
that by this paragraph , Defendants are not agreeing or admitting to
any liability, obligation or responsibility what so ever to anyone,
including Xxx Mo. Xxxxx, III, and do not waive their rights, if any,
to anyone, including Xxx X. Xxxxx, III, with regard to an alleged debt
to Mid-South Telecommunications Company.
/S/ Xxx X. Xxxxx III 07/15/02
--------------------
Xxx X. Xxxxx III
/s/ Xxxx Xxxxx Xxxxx 07/15/02
--------------------
Xxxx Xxxxx Xxxxx
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/s/ Xxxxx Xxxxxxxxxxxx
----------------------
XXXXX XXXXXXXXXXXX
Chief Executive Officer of MedDiversified, Inc.,
formerly known as x-Xxxxxxx.xxx, and on behalf of
Vidimedix Acquisition Corporation, predecessor in interest
to MedDiversified, Inc.
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NO. 2000-47334
XXXX XXXXX XXXXX AND | IN THE DISTRICT COURT OF
XXX X. XXXXX, III, |
|
VS. | XXXXXX COUNTY, TEXAS
|
X-XXXXXXX.XXX AND |
VTDIMEDIX ACQUISITION |
CORPORATION, JOINTLY AND SEVERALLY | 113th JUDICIAL DISTRICT
FINAL JUDGMENT
BE IT REMEMBERED that on this _____ day of _________________________, 2003,
came on to be heard the above captioned and numbered cause of action, wherein
came the Plaintiffs Xxxx Xxxxx Xxxxx and Xxx X. Xxxxx, III, individually or by
and through their respective attorneys of record, and announced to the Court
that they request that a Final Judgment that they take nothing by reason of this
suit and in favor of Defendants be entered in this cause, and it is accordingly:
ORDERED, ADJUDGED, and DECREED by the Court that Defendants have Judgment
in their favor, and that Plaintiffs Xxxx Xxxxx Xxxxx and Xxx X. Xxxxx, III, take
nothing by reason of this suit.
It is further ORDERED, ADJUDGED AND DECREED that this is a Final Judgment
of all claims of all parties, that all costs of court are borne by the party
incurring same and that all relief not expressly granted herein is denied.
SIGNED FOR ENTRY, this ______ day of ___________________________, 2003.
------------------------
JUDGE PRESIDING
1
APPROVED AS TO FORM AND CONTENT:
XXXXX, XXXXXXX & XXXXXXXXX, P.C.
------------------------------
XXXXX X. XXXXXXX
State Bar No. 16666000
0000 Xxxxxxxxx, Xxx. 0000
Xxxxxxx, Xxxxx 00000
Telephone: (000 000-0000
Facsimile: (000) 000-0000
ATTORNEYS FOR PLAINTIFFS
XXX X. XXXXX, III AND XXXX XXXXX XXXXX
XXXXXXXX & XXXXX, P.C.
------------------------------
Xxxxxx X. Xxxxx
TBA: 15244800
Xxxxx X. Xxxxx
TBA: 21873800
Xxxxxxx X. Xxxxx
TBA: 20759900
0000 Xxxxxxxxx Xxxxxxx, Xxx. 0000
Xxxxxxx, Xxxxx 00000
(000) 000-0000
(000) 000-0000 (Fax)
ATTORNEYS FOR DEFENDANTS
X-XXXXXXX.XXX, N/K/A MEDDIVERSIFIED, INC.,
AND VIDIMEDIX ACQUISITION CORPORATION
2
NO. 2000-47334
XXXX XXXXX XXXXX AND | IN THE DISTRICT COURT OF
XXX X. XXXXX, III, |
|
VS. | XXXXXX COUNTY, TEXAS
|
X-XXXXXXX.XXX AND |
VIDIMEDIX ACQUISITION |
CORPORATION, JOINTLY AND SEVERALLY | 113th JUDICIAL DISTRICT
AGREED JUDGMENT
BE IT REMEMBERED that on this _____ day of _________________________, 2002,
came on to be heard the above captioned and numbered cause of action, wherein
came the parties, individually or by and through their respective attorneys of
record, and announced to the Court that the parties having agreed that Judgment
should be entered herein in favor of Plaintiffs Xxx X. Xxxxx, III and Xxxx Xxxxx
Xxxxx against Defendants x-Xxxxxxx.xxx, now known as Meddiversified, Inc., and
Vidimedix Acquisition Corp., jointly and severally, in the amount of ONE MILLION
FIVE HUNDED THOUSAND AND NO/100 DOLLARS ($1,500,000), and it is accordingly:
ORDERED, ADJUDGED, and DECREED by the Court that Plaintiffs, Xxx X. Xxxxx,
III and Xxxx Xxxxx Xxxxx have Judgment against Defendants x-Xxxxxxx.xxx now
known as Meddiversified, Inc., and Vidimedix Acquisition Corp., jointly and
severally, in the amount of ONE MILLION FIVE HUNDED THOUSAND AND NO/100 DOLLARS
($1,500,000).
IT IS FURTHER ORDERED THAT Costs of Court incurred herein are hereby
assessed against the party incurring same, and that all writs, processes and
executions necessary for collection of this judgment shall issue.
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SIGNED FOR ENTRY, this _____ day of __________________, 200_.
---------------------------------
JUDGE PRESIDING
APPROVED AS TO FORM AND CONTENT:
XXXXXXXX & XXXXX, P.C.
--------------------------------
Xxxxxx X. Xxxxx
TBA: 15244800
Xxxxx X. Xxxxx
TBA: 21873800
Xxxxxxx X. Xxxxx
TBA: 20759900
0000 Xxxxxxxxx Xxxxxxx, Xxx. 0000
Xxxxxxx, Xxxxx 00000
(000) 000-0000
(000) 000-0000 (Fax)
ATTORNEYS FOR DEFENDANTS
X-XXXXXXX.XXX, N/K/A MEDDIVERSIFIED, INC.
AND VIDIMEDIX ACQUISITION CORPORATION
XXXXX, XXXXXXX & XXXXXXXXX, P.C.
--------------------------------
XXXXX X. XXXXXXX
State Bar No. 16666000
0000 Xxxxxxxxx, Xxx. 0000
Xxxxxxx, Xxxxx 00000
Telephone: (000 000-0000
Facsimile: (000) 000-0000
ATTORNEYS FOR PLAINTIFFS
XXX X. XXXXX, III AND XXXX XXXXX XXXXX
2
