SETTLEMENT AGREEMENT WITH MUTUAL RELEASES
This SETTLEMENT AGREEMENT WITH MUTUAL RELEASES ("Settlement") is
entered into as of June 15, 2005, by and among HEALTH EXPRESS USA, INC. ("Health
Express"), HEALTH EXPRESS FRANCHISE COMPANY ("Health Franchise"), THE XXXXXX
CORP. ("Xxxxxx"), THE JUNIE CORP. ("Junie") and XXXXX XXXXXXXXXX ("Xxxxxxxxxx")
with reference to the following facts and claims:
RECITALS
A. Health Express' wholly-owned subsidiaries are Health Franchise,
Healthy Bites Grill, Inc. and Healthy Bites Grill of Boca, Inc. Health Express,
together with its wholly-owned subsidiaries, are collectively
referred to as "Health Corp."
X. Xxxxxxxxxx was a director of Health Express and obtained franchises
from Health Franchise through her wholly-owned subsidiaries, Junie and Xxxxxx in
2003.
C. Health Franchise and Junie entered into a Healthy Bites Grill
Franchise Agreement on February 14, 2003 (the "Junie Franchise Agreement").
D. Health Franchise and Xxxxxx entered into a Healthy Bites Grill
Franchise Agreement on September 30, 2003 (the "Xxxxxx Franchise Agreement").
E. On December 27, 2003, Health Express issued a Five and One Half
Percent (5.5%) Promissory Note to Greenfield in amount of One Hundred
Seventy-One Thousand Six Hundred Sixty Dollars ($171,660.00) (the "Note"). The
outstanding balance, including interest, on the Note as of April 30, 2005 is One
Hundred Ninety Thousand Nine Hundred Twenty-Seven and 74/100 ($190,927.74) (the
"Outstanding Note Amount").
F. Health Franchise, Junie and Greenfield desire to terminate all of
the obligations due and owning under the Junie Franchise Agreement and to
mutually release one another from any liability arising prior to the date hereof
in connection with the matters set forth herein, the Junie Franchise Agreement
or the business relationship between Junie and Greenfield on the one hand, and
Health Corp. on the other hand.
G. Health Franchise, Xxxxxx and Xxxxxxxxxx desire to terminate all of
the obligations due and owning under the Xxxxxx Franchise Agreement and to
mutually release one another from any liability arising prior to the date hereof
in connection with the matters set forth herein, the Xxxxxx Franchise Agreement
or the business relationship between Xxxxxx and Greenfield on the one hand, and
Health Corp. on the other hand.
X. Xxxxxxxxxx and Health Express desire to simultaneously terminate and
convert the Note into shares of Health Express' common stock, par value $0.001
per share (the "Common Stock").
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I. As additional consideration, Health Express shall transfer its One
Hundred Percent (100%) ownership interest in Health Franchise to Greenfield.
K. Each of the parties to the Settlement expressly acknowledges that
the provisions of the Settlement require approval of the shareholders of Health
Express pursuant to a Schedule 14C Information Statement (the "Information
Statement").
NOW, THEREFORE, in consideration of the foregoing, and the mutual
covenants and conditions contained herein, the parties hereto agree as follows:
1. PURPOSE OF AGREEMENT. This Agreement is entered into in good faith
for the purpose of settling completely those claims of each of the parties to
this Settlement with regard to the matters described in the Recitals
hereinabove. Neither this Settlement nor any of its terms is admissible in any
proceeding between the parties, except a proceeding to interpret or enforce its
terms.
2. EFFECTIVE DATE AND VOTING AGREEMENT. The provisions of Sections 3, 4
and 5 of the Settlement shall be effective as of a date five (5) business days
after the shareholders of Health Express approve the provisions of the
Settlement pursuant to the Information Statement (the "Closing Date"). Each of
the parties to the Settlement agree to vote all shares of Common Stock of Health
Express owned by it in favor of all proposals presented in the Information
Statement, including but not limited, the terms of the Settlement and the terms
of the share exchange between Health Express and Aim American Mortgage, Inc.
3. TERMINATION OF THE OBLIGATIONS. Effective as of the Closing Date,
the obligations due and owing under the Junie Franchise Agreement and the Xxxxxx
Franchise Agreement are terminated, including but not limited to the franchise
fees due thereunder and the support obligations on the part of Health Franchise
and Health Express referenced therein.
4. ISSUANCE OF SHARES. On the Closing Date, Health Express shall issue
a number of shares of its Common Stock based on the following formula: (a) the
Outstanding Note Amount plus accrued interest of Five and One Half Percent
(5.5%) per annum from the date hereof through the Closing Date, divided by (b)
Eighty Percent (80%) of the average closing bid price of the Common Stock for
the three lowest trading days of the five trading days immediately preceding the
Closing Date.
5. OWNERSHIP IN HEALTH EXPRESS. On the Closing Date, Health Express
shall transfer its One Hundred Percent (100%) ownership interest in Health
Franchise to Greenfield. The authorized capital stock of Health Franchise
consists of One Hundred (100) shares of common stock, par value $1.00 per share,
One Hundred (100) of which are issued and outstanding (the "Shares"). Health
Express shall deliver to Greenfield original stock certificates representing the
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Shares, together with stock powers duly executed in blank on the Closing Date.
Health Express represents and warrants that the Shares are owned of record,
legally and beneficially by Health Express. Health Express represents and
warrants that the Shares are free and clear of any and all security interests,
encumbrances, and rights of any kind or nature whatsoever (collectively,
"Encumbrances"), and upon delivery of the Shares hereunder, Greenfield will
acquire title thereto, free and clear of any and all Encumbrances.
6. MUTUAL RELEASES OF ALL CLAIMS. Except to the extent expressly set
forth herein:
(a) As of the Closing Date, Health Corp. releases and
discharges Junie, Xxxxxx and Xxxxxxxxxx and their respective stockholders,
officers, directors, agents, employees, parent corporation, subsidiaries,
affiliates, successors and assigns (collectively, the "Greenfield Released
Parties") from all actions, causes of action, suits, debts, dues, sums of money,
accounts, reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses, damages, judgments,
extents, executions, claims and demands whatsoever, in law or equity, which
Health Corp. and its respective stockholders, officers, directors, agents,
employees, parent corporation, subsidiaries, affiliates, successors and assigns
ever had, now have, or hereafter can, shall or may have against Junie, Xxxxxx
and Xxxxxxxxxx and the Greenfield Released Parties for, upon, or by reason of
any matter, cause or thing whatsoever from the beginning of the world to the
Closing Date.
(b) As of the Closing Date, Junie, Xxxxxx and Xxxxxxxxxx
release and discharge Health Corp. and its respective stockholders, officers,
directors, agents, employees, parent corporation, subsidiaries, affiliates,
successors and assigns (collectively, the "Health Corp. Released Parties") from
all actions, causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, extents,
executions, claims and demands whatsoever, in law or equity, which Junie, Xxxxxx
and Xxxxxxxxxx and their respective stockholders, officers, directors, agents,
employees, parent corporation, subsidiaries, affiliates, successors and assigns
ever had, now have, or hereafter can, shall or may have against Health Corp. and
the Health Corp. Released Parties for, upon, or by reason of any matter, cause
or thing whatsoever from the beginning of the world to the Closing Date.
(c) Each of the parties to the Settlement acknowledges and
agrees that nothing contained in paragraph (b) and (c) of this Section 6 shall
release or discharge the parties from the rights, duties and obligations assumed
under this Settlement.
7. REPRESENTATIONS AND WARRANTIES.
(a) Each of the parties to the Settlement represents and
warrants that it has not heretofore assigned or transferred, or purported to
assign or transfer, any of the claims released pursuant to this Settlement to
any other person not a party hereto and that it is fully entitled to compromise
and settle same.
(b) Each of the parties shall indemnify the other parties
against all costs, expenses, and judgments, including all attorney's fees
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incurred, arising in connection with the breach of a parties' representations,
warranties, agreements or undertakings herein, or in the event any third party
shall assert any of the claims released pursuant to this Settlement based upon
the purported assignment or transfer thereof to such third party.
8. FLORIDA LAW. All questions with respect to the construction of this
Settlement and the rights and liabilities of the parties hereto shall be
governed by the laws of the State of Florida.
9. NO ADMISSIONS. Notwithstanding any other provisions hereof, each of
the parties acknowledges that this Settlement effects the settlement of claims
which are denied and contested by the other, and that nothing contained herein
shall be construed as an admission of liability by or on behalf of the other
parties, all of which liability is expressly denied.
10. OWN COUNSEL. Each of the parties to the Settlement acknowledges
that it has been represented by counsel of its own choice throughout all of the
negotiations which preceded the execution of this Settlement and in connection
with the preparation and execution of this Settlement.
11. COVENANT NOT TO XXX. Except insofar as a party's rights are
concerned in connection with a breach or default of this Settlement by the other
party, each party agrees that it will forever refrain and forebear from
commencing, instituting or prosecuting any lawsuit, action or other proceeding
against the other parties based on, arising out of, or in connection with any
claim, debt, liability, demand, obligation, cost, expense, action, or cause of
action that is released and discharged by reason of this Settlement. Without
limitation and notwithstanding any other provisions hereof, each party's rights
and remedies in connection herewith shall be limited solely to the right to
recover damages, if any, in an action at law. No party shall be entitled to, and
each party hereby absolutely, irrevocably and unconditionally waives and agrees
not to seek or assert any form of equitable or injunctive relief including, but
not limited to, any temporary, preliminary or permanent injunction with respect
to, or other right to impair or interfere with, the rights or exercise thereof
granted to or retained by a party hereunder, as the case may be.
12. COUNTERPARTS. This Settlement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute one and the same
instrument, respectively. This Settlement may be transmitted for reproduction
and execution by any means now known or hereafter devised including, without
limitation, facsimile or electronic file transmission, and may be printed on
different paper formats or in different fonts, any or all of which may result in
variations to the pagination and appearance of the counterpart versions of this
Settlement. The execution and delivery of counterparts of this Settlement, by
facsimile or by original manual signature, regardless of the means or any such
variation in pagination or appearance shall be binding upon the parties
executing this Settlement.
13. FURTHER ACTS. Each party agrees to perform such further acts and
execute, acknowledge and deliver such additional instruments or documents,
promptly upon each of the other parties' request therefor, which are reasonably
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necessary or desirable to confirm, protect, or carry out any of the provisions
of this Settlement.
14. CAPTIONS. The captions of paragraphs contained in this Settlement
are for reference only and are not to be construed in any way as a part of this
Settlement.
15. OWN COSTS. Each party will bear its own costs, expenses, and
attorney's fees that it has heretofore incurred in connection with or arising
out of the matters set forth in the Recitals hereinabove.
16. ATTORNEY'S FEES. In the event of any action, suit, petitions,
appeals or other proceeding concerning the interpretation, validity, performance
or breach of any of the terms and conditions of this Settlement, the prevailing
party shall recover reasonable attorney's fees, costs and expenses incurred in
each and every such proceedings.
17. ENTIRE AGREEMENT. This Settlement represents the entire agreement
between the parties to the Settlement with respect to the subject matter hereof
and supersedes all prior and contemporaneous oral and written agreements and
discussions. Each of the parties hereto covenants that it has not entered into
this Settlement as a result of any representation, agreement, inducement or
coercion, except to the extent specifically provided herein. Each of the parties
hereto further covenants that the consideration recited herein is the only
consideration for entering into this Settlement, and that no promises or
representations of other or further consideration have been made by any person.
This Settlement may be amended only by an agreement in writing and duly executed
by both parties hereto. This Settlement shall be binding upon and inure to the
benefit of the parties hereto and to their respective heirs, representatives,
successors and assigns.
18. SEVERABILITY. In the event any covenant, condition, or other
provision herein is held to be invalid, void, or illegal, the same shall be
deemed severed from the remainder of this Settlement and shall in no way affect,
impair or invalidate any other covenant, condition, or other provision herein.
If any covenant, condition, or other provision herein is held to be invalid due
to its scope or breadth, such covenant, condition, or other provision shall be
deemed valid to the extent of the scope or breadth permitted by law.
19. AUTHORITY. Each of the parties warrants and represents that each of
the persons and/or entities executing this Settlement is duly empowered and
authorized to do so.
[SIGNATURES ON THE FOLLOWING PAGE]
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WHEREFORE, the parties have executed this Settlement as of the date
first above written.
HEALTH EXPRESS USA, INC.
___________________________________
By:________________________________
Its:________________________________
HEALTH EXPRESS FRANCHISE COMPANY
___________________________________
By:________________________________
Its:________________________________
THE JUNIE CORP.
___________________________________
By:________________________________
Its:________________________________
THE XXXXXX CORP.
___________________________________
By:________________________________
Its:________________________________
___________________________________
Xxxxx Xxxxxxxxxx
