Exhibit 10.30
CONFIDENTIAL MUTUAL SETTLEMENT AGREEMENT AND POLICY RELEASE
This Confidential Mutual Settlement Agreement and Policy Release
("AGREEMENT") is entered into by and between Liberty Mutual Insurance Company
("LIBERTY"), on the one hand, and Endocare, Inc. ("ENDOCARE") on its own behalf
and on behalf of its indemnified directors and officers, Xxxx Xxxxxxxxxx, Xxxx
Xxxxx and Xxxxx Xxxxxx (collectively, the "ENDOCARE INSUREDS"), on the other
hand. LIBERTY and the ENDOCARE INSUREDS are sometimes referred to herein
individually as the "PARTY," and collectively as the "PARTIES."
RECITALS
A. WHEREAS, ENDOCARE was issued an Excess Directors and Officers
Liability insurance policy by LIBERTY, policy number 190222-012 (the "POLICY);
and,
B. WHEREAS, pursuant to its terms and conditions the POLICY provided
first layer excess coverage to the ENDOCARE INSUREDS subject to an aggregate
limit of liability of Five Million Dollars ($5,000,000) in excess of (a) a Five
Million Dollars ($5,000,000) primary insurance policy issued by National Union
Fire Insurance Company of Pittsburgh, Pa. ("NATIONAL UNION") Number 000-00-00
(the "PRIMARY POLICY"); and,
C. WHEREAS, the ENDOCARE INSUREDS were named or targeted in various
investigations, proceedings, arbitrations and lawsuits arising out of, based
upon or attributable to ENDOCARE's revenue recognition policies and restatements
of 2000, 2001 and 2002 financial statements, some of which are continuing as of
the date of this AGREEMENT, including without limitation the following:
1. the various shareholder litigation commenced against the
Respondents, including, but not limited to, a consolidated class
action entitled, In re Endocare, Inc. Securities Litigation,
United States District Court for the Central District of
California, Civil Action No. 02-CV-8429, and a derivative
lawsuit entitled, Venables x. Xxxxx, etc., et al., Orange County
(Cal.) Superior Court, Case No. 02 CC 0036 (collectively, the
"SHAREHOLDER LITIGATION"); and,
2. the various regulatory investigations presently being conducted
with respect to ENDOCARE by the Securities and Exchange
Commission and the Department of Justice (collectively, the
"REGULATORY INVESTIGATIONS");
(collectively, the "REPORTED MATTERS").
D. WHEREAS, the INSUREDS tendered the REPORTED MATTERS to LIBERTY for
coverage under the POLICY, with LIBERTY initially reserving all rights and
defenses including, without limitation, the right to assert rescission of the
POLICY;
E. WHEREAS, the parties to the SHAREHOLDER LITIGATION settled for the
sum of Eight Million Nine Hundred Fifty Thousand Dollars ($8,950,000) (the
"UNDERLYING SETTLEMENT AMOUNT"), with the INSUREDS requesting that all of their
directors and officers liability insurers, including LIBERTY, consent and/or
contribute to the UNDERLYING SETTLEMENT AMOUNT;
F. WHEREAS, ENDOCARE has tentatively settled one or more of the
REGULATORY INVESTIGATIONS without the consent of LIBERTY;
G. WHEREAS, the ENDOCARE INSUREDS incurred costs and expenses in
connection with the defense and settlement of the REPORTED MATTERS ("DEFENSE
COSTS"), with the INSUREDS requesting that NATIONAL UNION and LIBERTY consent
and pay the DEFENSE COSTS incurred;
H. WHEREAS, LIBRTY subsequently denied coverage under its POLICY for any
of the REPORTED MATTERSE, rescinded the POLICY, and in compliance with the
POLICY's Alternative Dispute Resolution provisions, initiated binding
arbitration proceedings against the ENDOCARE INSUREDS before the American
Arbitration Association, captioned as Liberty Mutual Insurance Company, et al.
v. Endocare, Inc., et al., case number 74 195 00402 04 SAT (the "RESCISSION
ARBITRATION");
I. WHEREAS, the INSUREDS filed a cross-claim against LIBERTY in the
RESCISSION ARBITRATION alleging claims for breach of contract and breach of the
implied covenant of good faith and fair dealing;
J. WHEREAS, the entire NATIONAL UNION primary policy's limit of
liability has been exhausted by the payment of DEFENSE COSTS and of a portion of
the UNDERLYING SETTLEMENT AMOUNT;
K. WHEREAS, LIBERTY paid the POLICY'S entire $5,000,000 limit of
liability towards the UNDERLYING SETTLEMENT AMOUNT under a full reservation of
rights, including the right to recoup, while proceeding with the RESCISSION
ARBITRATION; and,
L. WHEREAS, the PARTIES now wish to compromise, settle and resolve all
disputes, claims, potential claims, actions, suits, demands, causes of action,
debts, liabilities, agreements, contracts or promises between them arising out
of or relating to the POLICY and the RESCISSION
2
ARBITRATION on the terms set forth in this AGREEMENT.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises herein
exchanged, and for good and valuable consideration, the sufficiency and receipt
of which is hereby acknowledged, intending to be legally bound hereby, the
PARTIES agree as follows:
1. Within ten (10) calendar days of the execution of this AGREEMENT,
ENDOCARE will pay to LIBERTY the sum of One Million Dollars ($1,000,000), in
partial reimbursement of the amount paid by LIBERTY towards the UNDERLYING
SETTLEMENT AMOUNT (the "SETTLEMENT AMOUNT"). Within ten (10) calendar days of
ENDOCARE's payment, the PARTIES will jointly dismiss the RESCISSION ARBITRATION,
including all cross-claims, in its entirety and with prejudice.
2. In consideration of ENDOCARE's payment of the SETTLEMENT AMOUNT and
the mutual release set forth herein, LIBERTY, on the one hand, and the ENDOCARE
INSUREDS, on the other hand, forever release, discharge, and acquit each other
and each of their respective present and former directors, partners, principals,
officers, employees, agents, trustees, attorneys, reinsurers, parents,
subsidiaries, affiliates, divisions, representatives, predecessors, heirs,
executors, administrators, successors and assigns, from any and all rights,
demands, claims, potential claims, suits, debts, obligations, actions, and
causes of action of whatever nature, character, or description, which have been
or could be or could have been asserted or brought against each other, in any
way related to or connected with:
(a) the REPORTED MATTERS and the subject matter of each such
REPORTED MATTER;
(b) any claim made against the ENDOCARE INSUREDS after the June 10,
2002, effective date of the POLICY;
(c) any fees or costs billed by any attorney and/or consultant on
behalf of the ENDOCARE INSUREDS in connection with the REPORTED
MATTERS, the RESCISSION ARBITRATION and/or any claim made
against the ENDOCARE INSUREDS after the June 10, 2002, effective
date of the POLICY;
(d) the RESCISSION ARBITRATION, including all cross-claims, and the
subject matter of the RESCISSION ARBITRATION, inclusive of all
cross-claims;
(e) LIBERTY's coverage position(s) in connection with the REPORTED
MATTERS, any claim made against the ENDOCARE INSUREDS after the
June
3
10, 2002, effective date of the POLICY, including all claims of
entitlement to recoupment of policy proceeds;
(f) the INSURED's demands for payment of DEFENSE COSTS; and,
(g) the POLICY, including but not limited to all claims for bad
faith or other violations under any statute, common law claims
for bad faith insurance practices or breach of the implied
covenant of good faith and fair dealing,
(collectively, the "RELEASED MATTERS"); provided, however, that the foregoing
releases shall not become effective until the SETTLEMENT AMOUNT is paid in full
and the RESCISSION ARBITRATION has been dismissed in its entirety and with
prejudice.
3. Payment of the SETTLEMENT AMOUNT by ENDOCARE shall be in compromise
and in full settlement of any and all claims of the ENDOCARE INSUREDS against
LIBERTY, as well as any and all claims of LIBERTY against the ENDOCARE INSUREDS,
relating to the RELEASED MATTERS, and shall result in the unconditional
surrender and release of the POLICY by the ENDOCARE INSUREDS.
4. Except as set forth in paragraph 1 above, LIBERTY will not seek any
payment or reimbursement from the ENDOCARE INSUREDS of any additional amounts
spent in defense or settlement of the REPORTED MATTERS, and LIBERTY shall not be
responsible for any additional administrative fees or other costs and expenses
associated with the REPORTED MTTERS.
5. ENDOCARE shall reimburse, defend, indemnify and hold LIBERTY
harmless, from and against any liability and all loss, costs, damages, expenses,
including attorneys' fees, LIBERTY, its present and former directors, partners,
principals, officers, employees, agents, trustees, attorneys, reinsurers,
parents, subsidiaries, affiliates, divisions, representatives, predecessors,
heirs, executors, administrators, successors and assigns, incur on account of or
for any and all demands, claims, potential claims, suits, debts, obligations,
actions, and causes of action of whatever nature, character, or description,
that are asserted or might be asserted by or on behalf of any third party or
parties, including any non-signatory insured, arising out of the POLICY or the
policy releases provided for herein, including, but not limited to, any claim
that the release of the POLICY was improper.
6. The PARTIES acknowledge that this AGREEMENT constitutes a compromise
to terminate all controversy or claims or causes of action for damages of any
nature, known or unknown, suspected or unsuspected, accrued or unaccrued,
foreseen or unforeseen with respect to the RELEASED MATTERS, including those
claims with respect to the RELEASED MATTERS which the PARTIES do
4
not know or suspect to exist in their favor at the time of execution of this
AGREEMENT but which, if known to them, might have affected their decisioi to
enter into this AGREEMENT, and to release the remaining PARTIES herein. The
PARTIES and their respective directors, partners, principals, officers,
trustees, attorneys, parents, subsidiaries, affiliates, divisions,
representatives, predecessors, heirs, executors, administrators, successors and
assigns, expressly waive any and all rights they may have under statute or
common law principle that would limit the effect of the foregoing releases to
those claims actually known or suspected to exist at the time of execution of
this AGREEMENT, including but not necessarily limited to, the provisions of
Section 1542 of the California Civil Code, whict provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST
HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
Each PARTY agrees to assume the risk of any and all unknown,
unanticipated or misunderstood defenses, claims, causes of action, contracts,
liabilities, indentures and obligations, and hereby waives, releases and forever
discharges all rights and benefits which such PARTY might otherwise have under
section 1542 of the California Civil Code regarding such unknown, unanticipated
or misunderstood defenses, claims, causes of action, contracts, liabilities,
indentures and obligations as to the matters released in this AGREEMENT.
7. The releases and waivers set forth above shall not restrict, impinge
upon, or nullify any right or claim that the PARTIES have or may have in the
future because of, arising from, or attributable to any breach of the covenants
or warranties set forth in this AGREEMENT.
8. It is understood and agreed that this AGREEMENT constitutes a
compromise and settlement, and is not intended, nor to be construed, as an
admission by any PARTY of liability as to the REPORTED MATTERS, nor of coverage
for the same under the POLICY. This AGREEMENT therefore shall not be taken or
used, nor be deemed admissible in evidence, in any action, cause of action or
proceeding, except to enforce the terms of this AGREEMENT.
9. The PARTIES and their counsel agree to maintain the confidentiality
of the terms of this AGREEMENT and of the negotiations leading to this
AGREEMENT, except (and only) to the extent that such terms are required to be
disclosed for accounting, insurance (including reinsurance) or tax
5
purposes, or for purposes of effecting a settlement of any of the REPORTED
MATTERS, or pursuant to regulatory obligations, an order of a court of competent
jurisdiction or other legal process. In the event that a formal request is made
to any PARTY to compel the dissemination of information regarding the terms and
conditions of this AGREEMENT, said PARTY shall promptly notify, in writing, all
other PARTIES of such request so as to afford the other PARTIES the ability (but
not the obligation) to object to and oppose the dissemination of such
information.
10. This AGREEMENT is made and entered into for the sole protection and
benefit of the PARTIES, and no third parties shall be direct or indirect
beneficiaries of, or base any direct or indirect claim or cause of action in
connection with, this AGREEMENT, except that the releases set forth herein shall
inure to the benefit of and be enforceable by the respective released persons
described therein.
11. Each PARTY represents and warrants that he and/or it has been
represented by, and consulted with, counsel of his and/or its own choosing
regarding the provisions, obligations, rights, risks and legal effects of this
AGREEMENT, that such PARTY voluntarily accepts the terms of this AGREEMENT, and
that such PARTY enters into this AGREEMENT without any inducement or
consideration other than that described herein.
12. The PARTIES further acknowledge that after consulting with counsel
of their own choosing and after having performed due diligence with respect to
LIBERTY's rescission claims and alleged coverage defenses, each PARTY
acknowledges that the settlement reflected in this AGREEMENT is fair and in the
best interests of each PARTY and that each PARTY is receiving fair and
equivalent value for the payments, rights and other consideration which each
will surrender under this AGREEMENT.
13. All payments and deliveries required under this AGREEMENT by the
PARTIES shall be made as specified herein and in no event shall any of the
payments described be made on account of an antecedent debt.
14. Each person executing this AGREEMENT on behalf of a PARTY represents
and warrants that he or she is duly authorized and empowered to enter into this
AGREEMENT and has the authority and approval to bind the PARTY so represented to
the terms and representations of this AGREEMENT.
15. This AGREEMENT and any uncertainty or ambiguity later discovered
herein shall not be construed against any one PARTY or several PARTIES but shall
be construed as if all the PARTIES jointly prepared this AGREEMENT.
6
16. In the event that any one or more of the provisions of this
AGREEMENT are deemed, for any reason, to be invalid, illegal or unenforceable,
such determination shall not affect any other provision of this AGREEMENT.
17. This AGREEMENT and the POLICY constitutes the entire agreement
between the PARTIES regarding the subject matter hereof and supersedes all prior
oral and written agreements with respect to the matters provided for herein.
18. Any claim to enforce this AGREEMENT and any dispute arising under
this AGREEMENT or the subject matter contained herein shall be submitted to
binding arbitration pursuant to the terms and conditions set forth in the
POLICY, which includes incorporation of the relevant arbitration provisions
contained in the PRIMARY POLICY.
19. This AGREEMENT may be modified or terminated only by a written
agreement signed by all of the PARTIES.
20. This AGREEMENT may be executed by facsimile and in any number of
counterparts, each of which, so executed, shall be deemed to be an original, and
such counterparts shall together constitute one and the same AGREEMENT.
7
IN WITNESS WHEREOF, the PARTIES have executed this AGREEMENT as of the
dates set forth below.
Date: 11/2/05 ENDOCARE, INC.
(Signatures continue.)
By: /s/ Xxxxxxx Xxxxx
----------------------------------
Name: Xxxxxxx Xxxxx
Title:
Date: 12/22/05 /s/ Xxxx Xxxxxxxxxx
---------------------
XXXX XXXXXXXXXX
Date: 11/4/05 /s/ Xxxx Xxxxx
-----------------------
XXXX XXXXX
Date: 11/8/05 /s/ Xxxxx Xxxxxx
-----------------
XXXXX XXXXXX
Date: 11/3/05 LIBERTY MUTUAL INSURANCE COMPANY
By: /s/ Xxxxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Claims Manager - FI/SPEC CAS CLAIMS
8
