Exhibit 10.1
OAK TREE
MEDICAL SYSTEMS, INC.
000-00 XXXXXX XXXXXXX XXXXXXXXXX, XXXXXXXX, XX 00000
TEL: (000) 000-0000
TEL: (000) 000-0000
FAX: (000) 000-0000
SETTLEMENT AGREEMENT
This Settlement Agreement ("Agreement") is made this 3rd day of September, 1997,
by and between
Oak Tree Medical Systems, Inc. and its various subsidiaries, directors and
officers (hereafter collectively referred to as "Oak Tree") and Xxxxxxx Xxxxxxxx
("Xxxxxxxx"), all such parties collectively referred to as the "Parties".
WITNESSETH
WHEREAS, Xxxxxxxx served as Chief Executive Officer of Oak Tree for the period
of time from October, 1996 through April 30, 1997; and
WHERE AS, Xxxxxxxx entered into an Employment Agreement with Oak Tree dated
December, 1996 ("Employment Agreement"). Such Employment Agreement finalized the
terms of the employment relationship between Xxxxxxxx as Oak Tree's Chief
Executive Officer and Oak Tree as employer; and
WHEREAS, Xxxxxxxx claims that monies and other property are due him from Oak
Tree, under the terms of the Employment Agreement; and
WHEREAS, Oak Tree denies that it is in any way indebted to Xxxxxxxx; and
WHEREAS, Oak Tree and Xxxxxxxx desire to resolve certain of their differences
without resort to litigation;
NOW THEREFORE, in consideration of the mutual covenants, agreements and promises
contained herein and for other consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties agree as follows, upon the advice and
assistance of their respective counsel:
1. Oak Tree and their respective directors, officers, heirs, successors and
assigns hereby release, remit and forever discharge Xxxxxxx Xxxxxxxx from
and against any claims, demands, causes of action, suits and liabilities
whatever, whether claimed or known, that any of them has or might
hereafter assert for or on account of any act, event, matter, debt or
obligation arising or occurring prior to the date of this Agreement and
relating in any way to Xxxxxxx Xxxxxxxx personally, as a shareholder, as
an officer, Chief Executive Officer or director of Oak Tree.
2. Oak Tree and their respective directors, heirs, successors and assigns
hereby indemnify Xxxxxxxx and hold Xxxxxxxx harmless from and against any
losses, judgments, or expenses and costs, including those of legal counsel
incurred for Kedersha's defense or other representation, that might
hereafter be incurred, entered against or sustained by Xxxxxxxx as a
result of any legal matters or action being filed or a finding by a Court
of competent jurisdiction or any voluntary stipulation by Oak Tree or
Xxxxxxxx that Xxxxxxxx is indebted to Oak Tree or is or may be liable to
Oak Tree or any others for any acts or omissions occurring while Xxxxxxxx
had any relationship with Oak Tree, its officers, directors, employees,
shareholders or others whatsoever. This provision shall not apply to
criminal acts committed by Xxxxxxxx.
0. Xxxxxxxx and his respective heirs, successors and assigns hereby release,
remit and forever discharge Oak Tree, its directors and officers from and
against any claims, demands, causes of action, suits and liabilities
whatever, whether claimed or known, that any of them has or might
hereafter assert for or on account of any act, event, matter, debt or
obligation arising or occurring prior to the date of this Agreement and
relating in any way to Oak Tree and its obligations to him as a result of
his relationship with Oak Tree while acting as an officer, Chief Executive
Officer or director of Oak Tree.
4. a) Xxxxxxxx hereby covenants, warrants and represents that he will not,
within a twenty (20) mile radius of any existing or previously owned Oak
Tree facility and for a period of one (1) year from the date of this
Agreement, directly or indirectly own, manage, operate, finance or
participate in the ownership, management, operation or financing of any
physical therapy facility. Such radial measurement shall also include
such sites as are presently being researched or considered for acquisition
or management by Oak Tree. Oak Tree will provide Xxxxxxxx, at the time of
execution of this Agreement, a list of the sites referred to herein.
b) For the term of this provision, Xxxxxxxx will not disclose or refer to
any third parties, act as agent or broker, or personally develop or
utilize any business opportunity or confidential information which he
learned of or which came to him while acting as or in relation to his
position as Chief Executive Officer or director of Oak Tree, including
those business acquisition opportunities which Oak Tree may or may not
have finalized, considered or is presently considering. If however, Oak
Tree has terminated negotiations with potential future or previous targets
of acquisition or management, Xxxxxxxx may freely approach such parties
after six (6) months has lapsed from Oak Tree's termination of
negotiations.
c) The provisions of this fourth paragraph, except as stated herein, shall
not apply to any relationship Xxxxxxxx may have had or has with either
Xxxxx Xxxxxx, Xxxxxxx Xxxxxx, or Dr. Xxxx Xxxxx. Xxxxxxxx may not,
however, compete in any way with Oak Tree within a twenty (20) mile radius
for one (1) year, as stated previously in paragraph 4. a).
d) All the provisions of this fourth paragraph shall be immediately null
and void if Oak Tree fails to satisfy all the terms of this Agreement. In
the event that Oak Tree fails to adhere to all the terms of this
Agreement, it is understood that this Agreement will not prevent Xxxxxxxx
from seeking any legal remedy that he may have had under his employment
contract prior to the signing of this Agreement
5. The Employment Agreement shall henceforth be considered to be null and
void, except as noted otherwise in this agreement and in the event, Oak
Tree defaults in any of the provisions of this Agreement.
6. All unpaid past due Oak Tree related business expenses placed on the
Xxxxxxxx Oak Tree Corporate American Express account shall be paid by
Xxxxxxxx. If the unpaid balance of this American Express exceeds $10,000,
Oak Tree will immediately reimburse Xxxxxxxx in the amount that exceeds
$10,000. Xxxxxxxx will also accept full financial responsibility for the
corporate vehicle (1997 Range Rover) presently being leased through BMW.
7. Xxxxxxxx will return any Oak Tree business records (if any) in his
possession at the time of the signing of this Agreement. In the event
Xxxxxxxx has knowledge that any such assets are actually in the possession
or control of Oak Tree or others, Xxxxxxxx shall cooperate with Oak Tree
in identifying and locating such assets. This provision shall survive the
execution and Release provisions of this Agreement. After Xxxxxxxx has
received his stock and after the balance of the shares are delivered to
Xxxxxxxxx X. Xxxx, Esq., Xxxxxxxx shall return the corporate lap top
computer and any related software.
8. Xxxxxxxx shall be issued 22,500, unrestricted shares, of Oak Tree Medical
Systems, Inc. common stock within a 14 day period from the signing of this
agreement. Xxxxxxxx will be given 7,500 shares within 14 days of the
signing of this document. Xxxxxxxx agrees not to sell more than 5,000
shares during the month September and no more than 2.500 shares during the
month of October. The balance of the shares will be delivered Xxxxxxxxx
Xxxx, Esq. within 14 days following the signing of this agreement. He
will release a minimum of 1,500 shares per month thereafter on the 15th of
each month, beginning October 15st, 1997. Xxxxxxxx may sell all, part or
none of the shares immediately upon receipt or thereafter. Xxxxxxxx may
sell, in any subsequent month after October 15th, 1997, any or all shares
he has previously received.
9. The Parties hereto warrant and represent that they are duly authorized to
execute this Agreement. The Parties further warrant and represent that
each person signing the Agreement in a representative capacity is also
duly authorized to execute the Agreement on behalf of their respective
principals.
10. This Agreement sets forth in its entirety the understanding of the Parties
as it relates to the subject matter hereof, and there exists among the
Parties no agreements, understandings, representations, warranties,
inducements or consideration except as recited herein. The Agreement may
not be amended or modified in whole or in part except in a writing duly
executed by the Parties.
11. Neither the fact of this Agreement nor of any of its specific terms shall
constitute or be deemed an admission or acknowledgment of any kind, except
as and to the extent necessary to prove and enforce the terms hereof.
12. This Agreement shall be binding upon the Parties hereto and upon their
respective heirs, successors and assigns.
13. This Agreement may be executed in one or more counterparts and by
different parties on separate counterparts, each of which shall be deemed
an original, but all of which shall constitute one and the same
instrument.
14. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York. Actions to enforce this Agreement or
otherwise arising from or concerning this Agreement shall be brought in
Queens County, New York. For purposes of any such action, the Parties
hereby consent to the jurisdiction of the New York Courts and waive any
venue objection(s) that they might otherwise assert.
15. This Agreement shall become effective as of the date first indicated
above.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
as of the day and year first above written.
By: /s/ XXXX XXXXXXXX By: /s/ XXXX XXXXXX
--------------------------------------- ---------------------
Xxxx Xxxxxxxx, Chief Operating Officer Xxxx Xxxxxx, Board Member
and Board Member
Oak Tree Medical Systems, Inc.
Oak Tree Medical Systems, Inc.
and its subsidiaries
By: /s/ XXXXXXX XXXXXXXX
--------------------
Xxxxxxx Xxxxxxxx
By: /s/ XXXXX XXXXXX
---------------------------------------
Xxxxx Xxxxxx, President and Board Member
Oak Tree Medical Systems, Inc.
and its subsidiaries
