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Exhibit 10.115
TOLLING AGREEMENT
This Tolling Agreement (this "Agreement") is made by and between Unison
HealthCare Corporation, a Delaware corporation (the "Company"), and Xxxxx X.
Xxxxxxx ("Xxxxxxx") as of March 31, 1997.
RECITALS
A. Pursuant to the Agreement and Plan of Merger among the Company,
Signature Health Care Corporation, Xxxxxxx and Xxxx X. Xxxxxxxx dated as of
August 2, 1996, the Company issued shares of its common stock, par value $0.001,
to Xxxxxxx in connection with which Xxxxxxx may have claims against the Company.
B. The Company and Xxxxxxx have agreed that Xxxxxxx will provide
services to the Company pursuant to the Services Agreement between the Company
and Xxxxxxx dated as of March 31, 1997 (the "Services Agreement").
AGREEMENT
In consideration of the mutual covenants set forth in this Agreement
and as an inducement for the parties to enter into the Services Agreement, the
parties agree as follows:
1. Definitions. As used in this Agreement, the following terms with
initial capital letters will have the meanings set forth below.
1. "Tolling Period" means the period commencing upon the date
of this Agreement and ending on the date Xxxxxxx ceases to serve on the board of
directors of the Company and perform services for the Company, whether pursuant
to the Services Agreement or otherwise.
2. "Statutes of Limitations Defense" means any defense or
avoidance of any claim Xxxxxxx may have against the Company, whether
individually or as a member of a class, based on the passage of time during the
Tolling Period, including without limitation any defense or avoidance of any
claim based upon any statute of limitation, any statute of repose or the
doctrines of waiver or laches.
2. Tolling.
1. The Company will not in any manner assert a Statute of
Limitations Defense in connection with any claim Xxxxxxx may have against the
Company. The Company further agrees that all applicable statutes of limitation
and statutes of repose will be tolled
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during the Tolling Period.
2. Xxxxxxx will not file or initiate any legal action against
the Company during the Tolling Period.
3. Miscellaneous.
1. Execution in Counterparts. This Agreement may be executed
in two or more counterparts, each of which will be deemed an original, and all
of which taken together will constitute one and the same agreement.
2. Notices. All notices and other communications under this
Agreement will be in writing and will be deemed to have been duly given when:
(a) personally delivered (including delivery by Federal Express or other
nationally recognized overnight courier) or (b) sent by telecopy, receipt
confirmed, as follows:
If to the Company, to:
Unison HealthCare Corporation
0000 Xxxxx Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxx & Xxxxx
Xxx Xxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
Telecopy: (000) 000-0000
Attn: Xxxx X. Xxxxxx, Esq.
If to Xxxxxxx, to:
Xxxxx X. Xxxxxxx
000 Xxxxxx Xxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxx & Xxxxxx L.L.C.
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
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Xxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxx, Esq.
or to such other addresses and numbers as may be provided by the parties from
time to time by notice.
3. Amendment. No provision of this Agreement may be modified,
amended, waived or discharged in any manner except by a written instrument
executed by each of the parties.
4. Entire Agreement. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter of this Agreement,
and supersedes all prior agreements and understandings of the parties, oral or
written, with respect to the subject matter of this Agreement.
5. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of Colorado without reference
to conflicts of law provisions.
6. Headings. The headings contained in this Agreement are for
convenience of reference only and will not in any way limit or affect the
meaning or interpretation of any of the terms or provisions of this Agreement.
7. Binding Effect; Successors. This Agreement may not be
assigned by either party without the prior written consent of the other. Subject
to the foregoing limitation, this Agreement will inure to the benefit of, and be
binding upon, the parties and their respective heirs, legal representatives,
successors and permitted assigns.
8. Waiver. The failure or delay of either party at any time to
enforce any provision of this Agreement will not be deemed to be a waiver of any
such provision or in any way to affect the validity of any provision of this
Agreement or the right of either party thereafter to enforce any provision of
this Agreement. No waiver of any breach of any provision of this Agreement will
be effective unless in writing executed by the party against whom or which
enforcement of such waiver is sought and no waiver of any such breach will be
construed or deemed to be a waiver of any other or subsequent breach.
9. Severability. If any provision of this Agreement, or the
application of such provision to any person or circumstance, is found by a court
of competent jurisdiction to be unenforceable for any reason, such provision may
be modified or severed from this Agreement to the extent necessary to make such
provision enforceable against such person or in such circumstance. Neither the
unenforceability of such provision nor the modification or
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severance of such provision will affect (i) the enforceability of any other
provision of this Agreement or (ii) the enforceability of such provision against
any person or in any circumstance other than those against or in which such
provision is found to be unenforceable.
10. Authority. Xxxxxxx hereby represents and warrants to the
Company that: (i) he has full power, authority and capacity to execute and
deliver this Agreement, and to perform his obligations hereunder; and (ii) this
Agreement is a valid and binding obligation of Xxxxxxx enforceable against
Xxxxxxx in accordance with its terms. The Company hereby represents and warrants
to Xxxxxxx that: (i) it has full power, authority and capacity to execute and
deliver this Agreement, and to perform its obligations hereunder; (ii) the board
of directors of the Company has approved the terms and conditions of and has
authorized the execution of this Agreement; and (iii) this Agreement is a valid
and binding obligation of the Company enforceable against the Company in
accordance with its terms.
IN WITNESS WHEREOF, the parties have executed this Tolling Agreement as
of the date first written above.
UNISON HEALTHCARE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
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Name:Xxxxxxx X. Xxxxxxx
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Its:EVP/COO
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/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
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