EXHIBIT 10.1
SETTLEMENT AGREEMENT, GENERAL RELEASE AND COVENANT NOT TO XXX
This Settlement Agreement, General Release and Covenant Not to Xxx
("Settlement Agreement") is made this 25th day of March, 2009 by and among
Integrated Healthcare Holdings, Inc. ("IHHI"), Xxxx X. Xxxx, M.D. ("Xx. Xxxx"),
Orange County Physicians Investment Network, LLC ("OC-PIN"), Xxxxx Xxxxx
("Xxxxx"), Pacific Coast Holdings Investment, LLC ("PCHI"), West Coast Holdings,
LLC, ("WCH"), Xx. Xxxx X. Xxxxxxxxx ("Xx. Xxxxxxxxx"), Ganesha Realty, LLC
("Ganesha"), Xxxxxxx X. Xxxxxx ("Xxxxxx"), Medical Capital Corporation ("MCC"),
Medical Provider Financial Corporation I ("MPFCI"), Medical Provider Financial
Corporation II ("MPFCII") and Medical Provider Financial Corporation III
("MPFCIII")(MCC, MPFCI, MPFCII and MPFCIII are sometimes hereinafter
collectively referred to as "MedCap"). All the above entities and individuals
are sometimes hereinafter collectively referred to as "Parties" or individually
as a "Party."
RECITALS
A. Certain of the Parties are currently engaged in litigation,
appellate, arbitration and/or court proceedings and/or have certain legal
disputes and issues with each other as more particularly set forth herein below.
B. Specifically:
a. IHHI is now suing Xx. Xxxx in Orange County Superior Court
("OCSC") Case No. 07CC05895 (consolidated with OCSC Case No.
07CC06017) and OCSC Case No. 00-0000-000000;
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b. Xx. Xxxx has filed a cross-complaint against IHHI in OCSC Case
No. 07CC05895;
c. OC-PIN (previously dismissed as a named defendant in OCSC Case
No. 07CC05895) is now suing Xxxxx in OCSC Case No.
00-0000-00000000 (a derivative action purportedly filed on behalf
of IHHI);
d. OC-PIN is also suing IHHI in OCSC Case Nos. 00-0000-00000000,
00-0000-00000000; 00-0000-00000000 and 00-0000-00000000;
e. Xx. Xxxxxxxxx is now suing OC-PIN in OCSC Case No.
00-0000-0000000;
f. Xx. Xxxx presently seeks to perfect an arbitration award in
his favor against PCHI (JAMS Case No. 1200040611) in OCSC Case
No. 00-0000-00000000; and
g. PCHI is suing OC-PIN et al. in OCSC Case No. 00-0000-00000000.
C. The foregoing litigation has spawned various related appellate
proceedings including, but not limited to, California Fourth Appellate District
Case Nos. G041208, G041181, G041491 and California Supreme Court Case No.
S168604.
D. Some of the foregoing litigation has been stayed, while other
aspects of the litigation are now scheduled to be tried on July 27, 2009.
E. All of the above described litigation, arbitration, appellate and
other legal proceedings are hereinafter collectively referred to as the
"Actions."
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F. In addition to the foregoing, periodic threats have been made by Xx.
Xxxx, OC-PIN and/or their legal counsel to hereinafter xxx Xx. Xxxxxxxxx, MedCap
and/or IHHI's individual directors, executives and attorneys on a variety of
theories, either directly or derivatively purportedly on behalf of IHHI.
Periodic allegations have also been made against Xx. Xxxxxxxxx and others
alleging that Xx. Xxxxxxxxx is not properly managing PCHI and that PCHI is not
acting properly defending claims brought against it by Xx. Xxxx. Certain members
of OC-PIN have also made threats and allegations against one another and some
members of OC-PIN have assigned certain threatened claims to IHHI. Xx. Xxxxxxxxx
and PCHI have challenged the confirmation of the Arbitration Award in favor of
Xx. Xxxx and have indicated that they will pursue all appellate avenues.
G. For reasons of their own and without admission of wrongdoing or
liability of any sort, the signatories to this Settlement Agreement wish to
fully and finally resolve the foregoing pending Actions and threatened
litigation, arbitration and discovery disputes, together with any and all
possible claims, disputes or disagreements among certain of the Parties relating
to any past fact, act or occurrence (except as expressly reserved herein)
("Settlement").
H. Certain of the Parties have entered into a separate settlement
agreement ("Second Settlement Agreement") concurrently herewith. No term or
provision of the Second Settlement Agreement contradicts or is inconsistent with
any term or provision of this Settlement Agreement nor does any term or
provision of the Second Settlement Agreement decrease, diminish or reduce any of
the agreements, covenants, waivers, or releases made by or granted to any of the
Parties to this Settlement Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, promises and
undertakings set forth below, the adequacy and sufficiency of which are hereby
expressly acknowledged by each of the Parties hereto, the Parties agree as
follows:
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COVENANTS
1. The foregoing Recitals are incorporated by reference as if fully set
forth herein.
2. The Closing of the Settlement ("Closing") shall occur on or before
March 27, 2009 at Xxxxxxxx & Xxxxxx, 0 Xxxxxx Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxx
Xxx, Xxxxxxxxxx.
3. The Closing shall be contingent upon, subject to and concurrent with
the Closing of the Second Settlement Agreement.
MONETARY.
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4. IHHI shall pay the Xxxxxxxx & Xxxxxx Trust Account as the jointly
designated representative of OC-PIN and Xx. Xxxx the total sum of One Million
Five Hundred Thousand Dollars ($1,500,000) in two installments as follows: Seven
Hundred Fifty Thousand Dollars ($750,000) payable at the Closing; and Seven
Hundred Fifty Thousand Dollars ($750,000) and interest thereon payable at eight
percent (8%) payable on September 25, 2009. Payment of the second installment is
hereby guaranteed by PCHI, who shall make such payment by September 28, 2009, if
not timely paid by IHHI.
5. At the Closing, PCHI will separately pay to the Xxxxxxxx & Xxxxxx
Trust Account, as the designated representative of Xx. Xxxx, Eight Hundred Fifty
Thousand Dollars ($850,000).
6. At the Closing, MedCap will separately pay to the Xxxxxxxx & Xxxxxx
Trust Account, as the jointly designated representative of OC-PIN and Xx. Xxxx,
Three Hundred Fifty Thousand Dollars ($350,000).
7. At the Closing, IHHI shall pay to the Xxxxxxxx & Xxxxxx Trust
Account, as the designated representative of Xx. Xxxx, the sum of Fifteen
Thousand Dollars ($15,000) in satisfaction of all Shah's individual claims
including, but not limited to, his claims for past due director's fees and other
compensation.
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8. [Intentionally Omitted.]
9. At the Closing, IHHI and Xxxxx shall agree and stipulate to the
release and return of the $50,000 bond which was posted in connection with the
shareholder derivative action filed by OC-PIN against Xxxxx and IHHI in OCSC
Case No. 00-0000-00000000.
STOCK PURCHASE AGREEMENTS.
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10. At the Closing, IHHI, Xx. Xxxx, Xx. Xxxxxxxxx and OC-PIN agree to
execute and deliver their respective Stock Purchase Agreements in the forms
attached hereto as Exhibits A, B and C ("Stock Purchase Agreements"). The shares
purchased under the Stock Purchase Agreements shall be referred to as the "Stock
Purchase Shares." The Stock Purchase Agreements are an integral part of this
First Settlement Agreement, the terms of which Stock Purchase Agreements are
incorporated by reference as though fully set forth herein.
If either OC-PIN or Xx. Xxxx choose not to purchase all of the
respective Stock Purchase Shares, then those Stock Purchase Shares which either
party elects not to purchase may be purchased by the other party. Either party
who elects not to purchase all or part of their Stock Purchase Shares shall give
appropriate notice to the other party no later than 20 days after Closing.
Within 30 days after Closing, OC-PIN and Xx. Xxxx shall jointly notify IHHI and
Xx. Xxxxxxxxx in writing ("SPA Notice") of their final determination of the
number of Stock Purchase Shares subject to their respective Stock Purchase
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Agreements whereupon such Stock Purchase Agreements shall be deemed so amended
to reflect the final number of Stock Purchase Shares being purchased. In the
event IHHI and Xx. Xxxxxxxxx do not receive a SPA Notice duly executed by OC-PIN
and Xx. Xxxx within 30 days of Closing there shall be no adjustment in the
number of shares subject to any of the Stock Purchase Agreements.
In the event that OC-PIN and Xx. Xxxx purchase, in the aggregate, fewer
Stock Purchase Shares than the maximum they were entitled to purchase under the
terms of their Stock Purchase Agreements then Xx. Xxxxxxxxx agrees that the
number of Stock Purchase Shares he is entitled to purchase under his Stock
Purchase Agreement shall be automatically reduced to an amount which is 51% of
the aggregate number of Stock Purchase Shares which Xx. Xxxxxxxxx, OC-PIN and
Xx. Xxxx actually purchase under their Stock Purchase Agreements. By way of
illustration, if OC-PIN and Xx. Xxxx actually purchase an aggregate of 15
million shares, then Xx. Xxxxxxxxx is entitled to purchase 15,612,245 shares
which is 51% of the aggregate number of shares being sold under all Stock
Purchase Agreements.
At the same time, as part of the SPA Notice, OC-PIN and Xx. Xxxx must
elect whether they intend to use as a credit all or a portion of the second
Seven Hundred Fifty Thousand Dollars ($750,000) payment (as specified in
Paragraph 4 above and hereinafter referred to as the "Second Payment"), and any
accrued interest thereon, toward OC-PIN and Xx. Xxxx'x payment to IHHI for their
respective Stock Purchase Shares. In the SPA Notice, OC-PIN and Shah will
provide an agreed allocation of the Second Payment signed by each of them.
Neither OC-PIN nor Xx. Xxxx are entitled to use as a credit all or a portion of
the Second Payment unless such a fully signed allocation is so provided. If
OC-PIN and Xx. Xxxx properly provide a SPA Notice with a fully signed
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allocation, they can use so much of the amount allocated as a credit applicable
to their respective obligations under their respective Stock Purchase
Agreements. If the credit is more than what is owed to IHHI, then IHHI will
continue to owe the balance under the terms of Section 4. If the credit is less
than what is owed to IHHI, OC-PIN and Xx. Xxxx will need to furnish the
additional funds at the Closing of their respective Stock Purchase Agreements.
If OC-PIN and Xx. Xxxx fail to timely give the SPA Notice with fully signed
allocation, then no credit shall be given but IHHI shall continue to owe the
Second Payment under the terms of Section 4.
11. IHHI agrees (and MedCap concurs) that IHHI will use the net
proceeds of the sale of the Stock Purchase Shares to pay down the principal
balance of IHHI's $10,700,000 Convertible Term Note, dated October 9, 2007, held
by MPFCIII, and MedCap agrees to promptly advance (or cause its subsidiaries to
promptly advance) to IHHI additional funds equal to such amount by which the
$10,700,000 Convertible Term Note is paid down ("Additional Loaned Funds"). IHHI
agrees (and MedCap concurs) that the source of the Additional Loaned Funds will
be further borrowing on and against IHHI's existing lines of credit with MedCap.
If necessary, IHHI then agrees to use the Additional Loaned Funds to bring
current the Xxxxxxx Lease and the PCHI Lease, including all late fees,
penalties, etc., associated with IHHI's failure to timely pay such rent and
other payments required under the leases.
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12. IHHI shall use its reasonable best efforts to ensure that it has
enough authorized capital stock to issue the Stock Purchase Shares, after
consideration of all previously granted warrants, conversion rights and stock
purchase agreements. The IHHI Board has authorized, and the majority-in-interest
of IHHI's shareholders have consented to an increase in authorized capital stock
to accommodate the Stock Purchase Agreements. IHHI has filed an information
statement on Schedule 14C with the Securities and Exchange Commission ("SEC").
IHHI covenants to promptly (1) seek to have such information statement declared
effective by the SEC, (2) respond to any comments by the SEC, (3) mail the
information statement to the shareholders, and (4) file restated articles of
incorporation with the Nevada Secretary of State. The increase in authorized
capital stock shall be completed within 45 days subject to reasonable extension
if IHHI must respond to SEC comments. Notwithstanding the foregoing, in no event
shall IHHI be required to perform under the Stock Purchase Agreements if the
effect would be to require IHHI to issue shares, including outstanding warrants,
conversion rights and stock purchase options, in excess of its authorized and
unreserved capital stock.
13. OC-PIN expressly acknowledges the validity and enforceability of
the preemptive rights granted by IHHI to Xx. Xxxxxxxxx. OC-PIN recognizes that
in connection with this Settlement Agreement, OC-PIN is releasing its claim that
IHHI granted or should have granted OC-PIN competing or superior preemptive
rights and acknowledges that as of the Closing, it does not have any preemptive
rights with respect to securities of IHHI; provided, however, nothing herein is
intended to affect the Stock Purchase Agreements described in Section 10 of this
Settlement Agreement or the OC-PIN members' Tag Along Right described in the
Shareholder's Agreement referenced in the Second Settlement Agreement.
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LOAN INTEREST AND RENT REDUCTION.
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14. MPFCII agrees, effective as of the Closing, to reduce the interest
rate on the $45,000,000 Term Note dated October 9, 2007 ("Term Note") to simple
interest of 10.25% and to maintain such interest rate up to and including the
Maturity date of such Term Note, or any extension thereof, as defined in the
$80,000,000 Credit Agreement dated October 9, 2007 ("Credit Agreement"), under
which Credit Agreement the Term Note was issued ("MedCap Debt Service
Reduction"). Provided, however, the MedCap Debt Service Reduction shall have no
force or effect, and shall be suspended, at any time an Event of Default shall
have occurred and continues under the Credit Agreement. PCHI agrees that during
the period of the MedCap Debt Service Reduction it will reduce the rent payable
by IHHI to PCHI in an amount equal to the MedCap Debt Service Reduction (I.E.,
the difference between 14% and 10.25%). At Closing, all parties to the Credit
Agreement will execute and deliver to MPFCII a written amendment to the Credit
Agreement memorializing the MedCap Debt Service Reduction set forth immediately
above.
PCHI RENT.
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15. IHHI agrees to bring the PCHI lease and the Xxxxxxx leases current
and pay all arrearages due under the PCHI Lease and the Xxxxxxx leases within
forty-five (45) days after the Closing.
IHHI BY-LAWS AND BOARD CHANGES.
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16. OC-PIN's obligation to fulfill its agreements at the Closing shall
be subject to the following actions by IHHI's Board of Directors:
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i. Approve an amendment to IHHI's Bylaws to provide that the number
of members serving on IHHI's Board of Directors shall be fixed at
seven. This amendment shall be made not later than Closing.
ii. Approve an amendment to Section 4 of Article III of IHHI's Bylaws
to provide that, effective immediately after IHHI's 2009 Annual
Meeting of Shareholders, a Shareholder who owns fifteen percent
(15%) or more of the voting stock of IHHI is entitled to call one
special shareholders meeting per year. This amendment shall be
made not later than Closing; and
iii. Appoint an OC-PIN representative selected by a
majority-in-interest of OC-PIN to fill the seat to be vacated by
Xxx Xxxxxxxxx at Closing until the September 2009 annual meeting
of shareholders.
17. In connection with the provisions set forth in Paragraph 16
immediately above, MedCap (and all related and affiliated persons and entities)
makes no representation or takes any position other than as set forth in the $80
Million Loan Documents and the Other Loan Documents (as said terms are defined
in Paragraph 23(x) below.)
18. Xx. Xxxx and OC-PIN agree to make, within five (5) business days
after the Closing, and keep current on a timely basis, all such filings and
reports that are required to be made by each of them under Section 13(d) of the
Securities Exchange Act of 1934, as amended, including such filings or reports
that are required to publicly disclose or report to the SEC the transactions
contemplated by this Settlement Agreement.
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19. Xx. Xxxx covenants and agrees that for a period of two (2) years
after the Closing Xx. Xxxx will not accept any nomination, appointment or serve
in the capacity as a director, officer or employee of IHHI, so long as IHHI
keeps the PCHI and Xxxxxxx leases current ("current" means payment is made
within forty-five (45) days of when payment is due).
DISMISSALS AND RELEASES.
------------------------
20. Xx. Xxxx and OC-PIN specifically covenant not to xxx, and further
covenant not to assist anyone else in suing, directly or derivatively on behalf
of IHHI or any other entity, Xx. Xxxxxxxxx or MedCap (and all related and
affiliated persons and entities). Xx. Xxxxxxxxx and MedCap specifically covenant
not to xxx, and further covenant not to assist anyone else in suing, directly or
derivatively on behalf of IHHI or any other entity, Xx. Xxxx and OC-PIN based on
any act, occurrence or omission which occurred or allegedly occurred prior to
the Closing.
21. At the Closing, Xx. Xxxx and OC-PIN shall sign and deliver to IHHI,
PCHI, Chaudhuri and Xxxxx dismissals with prejudice of all Xx. Xxxx and OC-PIN's
claims in the Actions described in the Recitals.
22. At the Closing, IHHI, PCHI and Chaudhuri shall sign and deliver to
Shah and OC-PIN dismissals with prejudice of all IHHI, PCHI and Chaudhuri's
claims against Xx. Xxxx and/or OC-PIN in the Actions described in the Recitals.
23. Except as to such rights or claims as may be created by this
Settlement Agreement, the Second Settlement Agreement or expressly reserved in
either of them, the following releases are provided:
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i. RELEASE OF CLAIMS BY IHHI. IHHI irrevocably, unconditionally and
fully releases and forever discharges OC-PIN, Xx. Xxxx, PCHI,
WCH, MedCap (and all related and affiliated persons and
entities), Xx. Xxxxxxxxx, Ganesha, Xxxxxx and their respective
past and present subsidiaries, affiliates, officers, directors,
partners, agents, employees, members, managers, representatives,
lawyers and law firms, and all persons acting by, through, under
or in concert with them, or any of them, from any and all rights,
suits, claims, actions, accounts, demands, contracts, debts,
controversies, agreements, promises, liabilities, duties,
obligations, costs, expenses, damages and causes of action,
whether presently known or unknown, vested or contingent,
suspected or unsuspected, accrued or yet to accrue, in law or in
equity, which IHHI may now or hereafter have, own or claim to
have arising out of, connected with or otherwise related to or
concerning the Actions, any facts, circumstances or claims which
were alleged or which could have been alleged in the pleadings in
the Actions, or which could have been asserted in any action or
proceeding in any legal, administrative or other forum whatsoever
in any jurisdiction, including, but not limited to, any legal
fees, court costs or expenses relating to the Actions; provided,
however, nothing in this Settlement Agreement shall constitute or
include a release or compromise of any claims by IHHI against
Xxxxx, either in his individual or representative capacity as an
agent for any party.
THIS IS A GENERAL RELEASE.
ii. RELEASE OF CLAIMS BY OC-PIN OC-PIN irrevocably, unconditionally
and fully releases and forever discharges IHHI, Xxxxx, PCHI, Xx.
Xxxxxxxxx, Ganesha, Thomas, MedCap (and all related and
affiliated persons and entities), and their respective past and
present subsidiaries, affiliates, officers, directors, partners,
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agents, employees, members, managers, insurers, representatives,
lawyers and law firms, and all persons acting by, through, under
or in concert with them, or any of them, from any and all rights,
suits, claims, actions, accounts, demands, contracts, debts,
controversies, agreements, promises, liabilities, duties,
obligations, costs, expenses, damages and causes of action,
whether presently known or unknown, vested or contingent,
suspected or unsuspected, accrued or yet to accrue, in law or in
equity, which OC-PIN may now or hereafter have, own or claim to
have arising out of, connected with or otherwise related to or
concerning the Actions, any facts, circumstances or claims which
were alleged or which could have been alleged in the pleadings in
the Actions, or which could have been asserted in any action or
proceeding in any legal, administrative or other forum whatsoever
in any jurisdiction, including, but not limited to, any legal
fees, court costs or expenses relating to the Actions; provided,
however, nothing in this Settlement Agreement shall constitute or
include a release or compromise of OC-PIN's rights to enforce its
preexisting ownership of IHHI's stock (acknowledging that it does
not have preemptive rights) or previous releases which IHHI has
executed in favor of OC-PIN.
THIS IS A GENERAL RELEASE.
iii. RELEASE OF CLAIMS BY XX. XXXX. Xx. Xxxx irrevocably,
unconditionally and fully releases and forever discharges IHHI,
Xxxxx, PCHI, Xx. Xxxxxxxxx, Ganesha, Thomas, MedCap (and all
related and affiliated persons and entities), and their
respective past and present subsidiaries, affiliates, officers,
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directors, partners, agents, employees, members, managers,
insurers, representatives, lawyers and law firms, and all persons
acting by, through, under or in concert with them, or any of
them, from any and all rights, suits, claims, actions, accounts,
demands, contracts, debts, controversies, agreements, promises,
liabilities, duties, obligations, costs, expenses, damages and
causes of action, whether presently known or unknown, vested or
contingent, suspected or unsuspected, accrued or yet to accrue,
in law or in equity, which Xx. Xxxx may now or hereafter have,
own or claim to have arising out of, connected with or otherwise
related to or concerning the Actions, any facts, circumstances or
claims which were alleged or which could have been alleged in the
pleadings in the Actions, or which could have been asserted in
any action or proceeding in any legal, administrative or other
forum whatsoever in any jurisdiction, including, but not limited
to, any legal fees, court costs or expenses relating to the
Actions; provided, however, nothing in this Settlement Agreement
shall constitute or include a release or compromise of Xx. Xxxx'x
right to enforce his preexisting ownership and contractual rights
with OC-PIN or WCH.
THIS IS A GENERAL RELEASE.
iv. RELEASE OF CLAIMS BY XXXXX. Xxxxx irrevocably, unconditionally
and fully releases and forever discharges IHHI, OC-PIN, Xx. Xxxx,
PCHI, WCH, Xx. Xxxxxxxxx, Ganesha, Thomas, MedCap (and all
related and affiliated persons and entities), and their
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respective past and present subsidiaries, affiliates, officers,
directors, partners, agents, employees, members, managers,
representatives, lawyers and law firms, and all persons acting
by, through, under or in concert with them, or any of them, from
any and all rights, suits, claims, actions, accounts, demands,
contracts, debts, controversies, agreements, promises,
liabilities, duties, obligations, costs, expenses, damages and
causes of action, whether presently known or unknown, vested or
contingent, suspected or unsuspected, accrued or yet to accrue,
in law or in equity, which Xxxxx may now or hereafter have, own
or claim to have arising out of, connected with or otherwise
related to or concerning the Actions, any facts, circumstances or
claims which were alleged or which could have been alleged in the
pleadings in the Actions, or which could have been asserted in
any action or proceeding in any legal, administrative or other
forum whatsoever in any jurisdiction, including, but not limited
to, any legal fees, court costs or expenses relating to the
Actions; provided, however, nothing in this Settlement Agreement
is intended to or shall be construed to extinguish, release,
waive, restrict, reduce, or modify any rights of Xxxxx under his
pre-existing Resignation Agreement dated November 4, 2008
("Resignation Agreement") with IHHI or rights recognized in such
Resignation Agreement including, but not limited to, Xxxxx'x
rights to indemnification as set forth and recognized in Section
7(d) of the Resignation Agreement, and nothing in this Settlement
Agreement shall constitute or include a release or compromise of
Xxxxx'x right to enforce his pre-existing Resignation Agreement
with IHHI.
THIS IS A GENERAL RELEASE.
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v. RELEASE OF CLAIMS BY PCHI. PCHI irrevocably, unconditionally and
fully releases and forever discharges its members and managers,
IHHI, OC-PIN, Xx. Xxxx, Xx. Xxxxx Xxxxxxx, WCH, Xx. Xxxxxxxxx,
Ganesha, Thomas, Xxxxx MedCap (and all related and affiliated
persons and entities), and their respective past and present
subsidiaries, affiliates, officers, directors, partners, agents,
employees, members, managers, representatives, lawyers and law
firms, and all persons acting by, through, under or in concert
with them, or any of them, from any and all rights, suits,
claims, actions, accounts, demands, contracts, debts,
controversies, agreements, promises, liabilities, duties,
obligations, costs, expenses, damages and causes of action,
whether presently known or unknown, vested or contingent,
suspected or unsuspected, accrued or yet to accrue, in law or in
equity, which PCHI may now or hereafter have, own or claim to
have arising out of, connected with or otherwise related to or
concerning the Actions, any facts, circumstances or claims which
were alleged or which could have been alleged in the pleadings in
the Actions, or which could have been asserted in any action or
proceeding in any legal, administrative or other forum whatsoever
in any jurisdiction, including, but not limited to, any legal
fees, court costs or expenses relating to the Actions; provided,
however, nothing in this Settlement Agreement shall constitute or
include a release or compromise of PCHI's right to enforce its
pre-existing lease with IHHI.
THIS IS A GENERAL RELEASE.
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vi. Release of Claims by WCH. WCH irrevocably, unconditionally and
fully releases and forever discharges IHHI, Xxxxx, PCHI, Xx.
Xxxxxxxxx, Xx. Xxxx, Xx. Xxxxx Xxxxxxx, Ganesha, Thomas, MedCap
(and all related and affiliated persons and entities), and their
respective past and present subsidiaries, affiliates, officers,
directors, partners, agents, employees, members, managers,
representatives, lawyers and law firms, and all persons acting
by, through, under or in concert with them, or any of them, from
any and all rights, suits, claims, actions, accounts, demands,
contracts, debts, controversies, agreements, promises,
liabilities, duties, obligations, costs, expenses, damages and
causes of action, whether presently known or unknown, vested or
contingent, suspected or unsuspected, accrued or yet to accrue,
in law or in equity, which WCH may now or hereafter have, own or
claim to have arising out of, connected with or otherwise related
to or concerning the Actions, any facts, circumstances or claims
which were alleged or which could have been alleged in the
pleadings in the Actions, or which could have been asserted in
any action or proceeding in any legal, administrative or other
forum whatsoever in any jurisdiction, including, but not limited
to, any legal fees, court costs or expenses relating to the
Actions; provided, however, nothing in this Settlement Agreement
shall constitute or include a release or compromise of WCH's
right to enforce its preexisting ownership and contractual rights
in and with PCHI.
THIS IS A GENERAL RELEASE.
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vii. RELEASE OF CLAIMS BY XX. XXXXXXXXX. Xx. Xxxxxxxxx irrevocably,
unconditionally and fully releases and forever discharges IHHI,
Xx. Xxxx, Xxxxx, XX-PIN, PCHI, WCH, MedCap (and all related and
affiliated persons and entities), and their respective past and
present subsidiaries, affiliates, officers, directors, partners,
agents, employees, members, managers, representatives, lawyers
and law firms, and all persons acting by, through, under or in
concert with them, or any of them, from any and all rights,
suits, claims, actions, accounts, demands, contracts, debts,
controversies, agreements, promises, liabilities, duties,
obligations, costs, expenses, damages and causes of action,
whether presently known or unknown, vested or contingent,
suspected or unsuspected, accrued or yet to accrue, in law or in
equity, which Xx. Xxxxxxxxx may now or hereafter have, own or
claim to have arising out of, connected with or otherwise related
to or concerning the Actions, any facts, circumstances or claims
which were alleged or which could have been alleged in the
pleadings in the Actions, or which could have been asserted in
any action or proceeding in any legal, administrative or other
forum whatsoever in any jurisdiction, including, but not limited
to, any legal fees, court costs or expenses relating to the
Actions; provided, however, nothing in this Settlement Agreement
shall constitute or include a release or compromise of Xx.
Xxxxxxxxx'x right to enforce his pre-existing ownership and
contractual rights in and with IHHI including, but not limited
to, the above-described preemptive rights and Stock Purchase
Agreement.
THIS IS A GENERAL RELEASE.
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viii. RELEASE OF CLAIMS BY GANESHA. Ganesha irrevocably,
unconditionally and fully releases and forever discharges IHHI,
Xx. Xxxx, Xxxxx, XX-PIN, PCHI, WCH, MedCap (and all related and
affiliated persons and entities), and their respective past and
present subsidiaries, affiliates, officers, directors, partners,
agents, employees, members, managers, representatives, lawyers
and law firms, and all persons acting by, through, under or in
concert with them, or any of them, from any and all rights,
suits, claims, actions, accounts, demands, contracts, debts,
controversies, agreements, promises, liabilities, duties,
obligations, costs, expenses, damages and causes of action,
whether presently known or unknown, vested or contingent,
suspected or unsuspected, accrued or yet to accrue, in law or in
equity, which Ganesha may now or hereafter have, own or claim to
have arising out of, connected with or otherwise related to or
concerning the Actions, any facts, circumstances or claims which
were alleged or which could have been alleged in the pleadings in
the Actions, or which could have been asserted in any action or
proceeding in any legal, administrative or other forum whatsoever
in any jurisdiction, including, but not limited to, any legal
fees, court costs or expenses relating to the Actions; provided,
however, nothing in this Settlement Agreement shall constitute or
include a release or compromise of Ganesha's right to enforce its
pre-existing ownership and contractual rights in and with PCHI.
THIS IS A GENERAL RELEASE.
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ix. RELEASE OF CLAIMS BY XXXXXX. Xxxxxx irrevocably, unconditionally
and fully releases and forever discharges IHHI, Xx. Xxxx, Xxxxx,
XX-PIN, PCHI, WCH, MedCap (and all related and affiliated persons
and entities), and their respective past and present
subsidiaries, affiliates, officers, directors, partners, agents,
employees, members, managers, representatives, lawyers and law
firms, and all persons acting by, through, under or in concert
with them, or any of them, from any and all rights, suits,
claims, actions, accounts, demands, contracts, debts,
controversies, agreements, promises, liabilities, duties,
obligations, costs, expenses, damages and causes of action,
whether presently known or unknown, vested or contingent,
suspected or unsuspected, accrued or yet to accrue, in law or in
equity, which Xxxxxx may now or hereafter have, own or claim to
have arising out of, connected with or otherwise related to or
concerning the Actions, any facts, circumstances or claims which
were alleged or which could have been alleged in the pleadings in
the Actions, or which could have been asserted in any action or
proceeding in any legal, administrative or other forum whatsoever
in any jurisdiction, including, but not limited to, any legal
fees, court costs or expenses relating to the Actions; provided,
however, nothing in this Settlement Agreement shall constitute or
include a release or compromise of Xxxxxx' right to enforce his
pre-existing ownership and contractual rights in and with IHHI.
THIS IS A GENERAL RELEASE.
20
x. RELEASE OF CLAIMS BY MEDCAP. MedCap (and all related and
affiliated persons and entities) irrevocably, unconditionally and
fully releases and forever discharges IHHI, Xx. Xxxx, Xxxxx,
XX-PIN, PCHI, WCH, Xx. Xxxxxxxxx, Ganesha, Xxxxxx and their
respective past and present subsidiaries, affiliates, officers,
directors, partners, agents, employees, members, managers,
insurers, representatives, lawyers and law firms, and all persons
acting by, through, under or in concert with them, or any of
them, from any and all rights, suits, claims, actions, accounts,
demands, contracts, debts, controversies, agreements, promises,
liabilities, duties, obligations, costs, expenses, damages and
causes of action, whether presently known or unknown, vested or
contingent, suspected or unsuspected, accrued or yet to accrue,
in law or in equity, which MedCap may now or hereafter have, own
or claim to have arising out of, connected with or otherwise
related to or concerning the Actions, any facts, circumstances or
claims which were alleged or which could have been alleged in the
pleadings in the Actions, or which could have been asserted in
any action or proceeding in any legal, administrative or other
forum whatsoever in any jurisdiction, including, but not limited
to, any legal fees, court costs or expenses relating to the
Actions; provided, however, nothing in this Settlement Agreement
or in the Second Settlement Agreement shall constitute or include
a release, waiver, compromise, limitation or diminishment of the
right of MedCap (and of its related and affiliated entities) to
enforce the provisions of the Term Note, the Credit Agreement or
of any other notes, documents or instrument executed or delivered
in connection therewith (collectively and together, the "$80
21
Million Loan Documents") against any Party to this Settlement
Agreement and/or against any Party to the Second Settlement
Agreement which is or was a party to the $80 Million Loan
Documents, and nothing in this Settlement Agreement or in the
Second Settlement Agreement shall constitute or include a
release, waiver, compromise, limitation or diminishment of the
right of MedCap (and of its related and affiliated entities) to
enforce the provisions of the $50,000,000 Credit Agreement dated
October 9, 2007 and the $10,700,000 Credit Agreement dated
October 9, 2007 and/or any notes, documents or instruments
executed or delivered in connection therewith (collectively and
together, the "Other Loan Documents") against any Party to this
Settlement Agreement and/or against any party to the Second
Settlement Agreement which is or was a party to the Other Loan
Documents.
THIS IS A GENERAL RELEASE.
xi. Without limiting the generality of the foregoing, Xx. Xxxx,
OC-PIN and WCH generally release Xx. Xxxxxxxxx, Ganesha, Xxxxxx
and PCHI's counsel Gaines, Weil, West & Xxxxxxx from any claims
relating or pertaining to the management of PCHI, the defense of
Xx. Xxxx'x claims against PCHI or PCHI's claims against OC-PIN.
xii. Notwithstanding the foregoing, a WCH or OC-PIN Member who has not
executed the Second Settlement Agreement shall not be entitled to
a release herein or a release under the Second Settlement
Agreement.
22
24. Each Party agrees not to commence, maintain, initiate, prosecute,
cause, assist or cooperate with any other person to commence, maintain, initiate
or prosecute any action, suit, proceeding or any claim before any court or
administrative agency in any jurisdiction against a Party of the matters
released in this Settlement Agreement. If a Party violates this covenant then
(a) this Settlement Agreement shall be a complete defense to any such action,
suit, proceeding or claim, and (b) the suing Party may not attack the legal
validity or sufficiency of this Settlement Agreement.
25. Each Party acknowledges that he, she or it has been advised by
counsel of his, her or its own choosing and is familiar with and understands the
provisions of California Civil Code section 1542, which section provides as
follows: 1.
"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."
26. Each Party hereby voluntarily and expressly waives and relinquishes
each and every right or benefit which he, she or it may have under California
Civil Code section 1542 to the full extent that he, she or it may lawfully waive
such rights. Each Party acknowledges that he, she or it may hereafter discover
facts in addition to or different from those which he, she or it presently knows
or believes to be true regarding the subject matter of the dispute, but that the
intention here is to fully, finally and forever settle and release the matters,
disputes, differences, now known or unknown, suspected or unsuspected, arising
out of or in any way relating to the matters released pursuant to this
Settlement Agreement.
23
27. The Parties hereto acknowledge that they expressly understand that
this Settlement Agreement and the Settlement it represents is (a) entered into
solely for the purpose of avoiding on-going and future expenses, burdens or
distractions of litigating the Actions, and (b) in no way constitutes an
admission by any Party hereto of any liability of any kind to any other Party or
of any wrongdoing. In this connection, the Parties specifically deny liability
in connection with any claims which have been made or could have been made, or
which are the subject matter of, or arise from, or are connected directly or
indirectly with or related in any way to any of the allegations raised in the
Actions.
28. Notwithstanding the foregoing, PCHI reserves its claims against
IHHI for unpaid rent and other violations of the IHHI\PCHI lease.
29. Xx. Xxxx represents that, to date, he and his wife have not
incurred any attorneys' fees on account of their guaranty of the Xxxxxxx leases.
However, should Xx. Xxxx or his wife incur any liability, including, but not
limited to, damages, losses or attorneys' fees, caused by IHHI's past failure to
pay rent on the Xxxxxxx leases, Xx. Xxxx hereby expressly reserves, and nothing
herein shall be deemed to release, impair or diminish, any and all rights Xx.
Xxxx and his wife may have against IHHI or any other party in connection with
any damages, losses or attorney's fees reasonably incurred by Xx. Xxxx or his
wife in satisfaction or defense of claims brought by the landlord(s) of the
Xxxxxxx leases or Xxxxx relating to Xx. Xxxx or his wife's guaranty of the
Xxxxxxx leases, or any affirmative claims related thereto, including without
limitation the recent action filed by Xxxxx Healthcare Corporation against Xx.
Xxxx and IHHI (OCSC Case No. 30-2009-00119836).
24
COMPLIANCE WITH THE LAW.
------------------------
30. All performance under this Settlement Agreement shall at all times
be subject to compliance by all Parties with applicable law and regulation then
in effect including, without limitation, federal and California law and
regulation relating to financial relationships between IHHI and its referring
physicians, such as the federal "Xxxxx Law" contained in provisions of the
Social Security Act.
MISCELLANEOUS.
--------------
31. The Parties each independently represent, warrant and agree that
each is now and shall remain through the Closing the sole and lawful owner of
all right, title and interest in and to every right, claim or other matter
released herein, and that such Party has not assigned or transferred or
purported to or attempted to assign or transfer or had involuntary assigned or
transferred to any person or entity any right, claim, or other matter released
herein, and that no third party is subrogated to any such rights or has any
claim upon the payments being made herein.
32. The Parties named as parties to the Actions stipulate that this
Settlement Agreement may be entered as a judgment pursuant to California Code of
Civil Procedure section 664.6 and that the Orange County Superior Court shall
retain jurisdiction over the Parties to enforce the terms of this Settlement
Agreement until they have been performed in full. For the purposes of this
Settlement Agreement only, and without affecting any other agreements which may
exist between the Parties, California law shall govern this Settlement
Agreement.
25
33. The Parties agree to execute all further and additional documents
and to take such other action necessary under the circumstances to accomplish
the purposes set forth in this Settlement Agreement. Each person or entity who
executes this Settlement Agreement acknowledges and represents that to the
extent that he, she or it is a signatory that he, she or it (a) has fully and
carefully read and understands the Settlement Agreement; (b) has had the
opportunity to be fully apprised by his, her or its attorneys of the legal
effect and meaning of this Settlement Agreement; (c) has had the opportunity to
make whatever investigation or inquiry he, she or it has deemed necessary or
appropriate in connection with the subject matter of this Settlement Agreement;
(d) has been afforded the opportunity to negotiate as to any and all terms of
this Settlement Agreement; and (e) is executing this Settlement Agreement
voluntarily, free from undue influence, coercion, duress, menace or fraud of any
kind.
34. In executing this Settlement Agreement, the Parties hereto do not
rely on any inducements, promises or representations made by any other Party
other than as contemporaneously set forth in writing, including those set forth
in the Second Settlement Agreement, the Shareholder Agreement and the Stock
Purchase Agreements with respect to those Parties who are also parties to those
agreements, respectively. This Settlement Agreement contains the entire
agreement and understanding between the Parties with respect to the Actions and
the subject matters which gave rise to the Actions and supersedes and replaces
and all prior negotiations, proposed and actual agreements, whether written or
26
oral, except for the Second Settlement Agreement, the Shareholder Agreement and
the Stock Purchase Agreements, with respect to the Actions and subject matters
which gave rise to the Actions. Except as expressly set forth herein, nothing in
this Settlement Agreement is intended to modify, change or affect the rights or
obligations of any Party to any pre-existing written contracts or written
agreements between them.
35. The failure of any of the Parties to insist upon strict adherence
to any term, condition or provision of this Settlement Agreement on any occasion
shall not be considered a waiver thereof or deprive that party of the right
thereafter to insist upon strict adherence of that term, condition, or provision
or any other term, condition or provision of this Settlement Agreement.
36. The failure of any Party to fully perform its duties and
obligations under this Settlement Agreement and/or to pay any amounts when due
under this Settlement Agreement ("Defaulting Party") shall not affect, impact,
change, reduce, diminish or eliminate the settlements, covenants, releases and
waivers granted to any other Party to this Settlement Agreement ("Non-Defaulting
Party") so long as the Non-Defaulting Party has fully performed its obligations
under this Settlement Agreement.
37. Each of the signatories for the Parties declares and represents
that he or she is competent and authorized to execute this Settlement Agreement
on behalf of the Party for whom he or she is signing.
27
38. Each Party to this Settlement Agreement shall bear all of his, her
or its own attorneys' fees, costs and expenses as well as fees, costs and
expenses of any of his, her or its advisors with respect to the matters and
Actions released herein and in the negotiation and drafting of this Settlement
Agreement; provided, however, that this provision is not intended to and shall
not be construed to extinguish, release, waive, restrict, reduce, or modify
Xxxxx'x rights to indemnification as set forth and recognized in Section 7(d) of
the Resignation Agreement.
39. This Settlement Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which shall
together constitute one and the same agreement.
40. A photocopied and/or faxed signature page will suffice for the
purposes of executing this Settlement Agreement.
41. Any notice required by this Settlement Agreement shall be made in
writing and sent via certified mail, return receipt requested, DHL, Fed-Ex,
Courier hand-delivered or similar means to give actual notice and proof thereof
("Dispatch") and by facsimile (if facsimile number is provided hereinafter) on
the same day of Dispatch and shall be effective upon Dispatch and facsimile, if
applicable. Notice shall be made as follows:
Xx. Xxxx Xxxx
0000 Xxxxx Xxxxxxx, Xxxxx 000
Xxxxx Xxx, XX 00000
Fax: (000) 000-0000
With copy to:
Xxxxxx X. Xxxxxxxx, Esq.
XXXXXXXX & XXXXXX
0 Xxxxxx Xxxxxx Xxxxx, 0xx Xxxxx
Xxxxx Xxx, XX 00000
Fax: (000) 000-0000
28
Orange County Physicians Investment Network, LLC
0000 Xxxxx Xxxxxxx, Xxxxx 000
Xxxxx Xxx, XX 00000
Fax: (000) 000-0000
With copies to:
Xxxxxx X. Xxxxxxxx, Esq.
XXXXXXXX & XXXXXX
0 Xxxxxx Xxxxxx Xxxxx, 0xx Xxxxx
Xxxxx Xxx, XX 00000
Fax: (000) 000-0000
and
Xxxxxxx X. Xxxxxxxx, Esq. 1168-003
XXXXX XXXXXXX, LLP
00000 Xxxxx Xxxxx Xxxx, Xxxxx 000
Xxx Xxxx Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Integrated Healthcare Holdings, Inc.
0000 X. Xxxxxx Xxx.
Xxxxx Xxx, XX 00000
Fax: (000) 000-0000
With copies to:
Xxxxx X. Xxxxxxxx, Esq.
ENTERPRISE COUNSEL GROUP, ALC
Xxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Fax: (000) 000-0000
and
J. Xxxxx Xxxxxxxxx, Esq.
Integrated Healthcare Holdings, Inc.
0000 X. Xxxxxx Xxx.
Xxxxx Xxx, XX 00000
Fax: (000) 000-0000
and
29
Xxxxx X. Xxxxxxx, Esq.
Xxxx Xxxxx, LLP
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000-0000
Fax: (000) 000-0000
Xxxxx Xxxxx
c/o Xxxxxxx X. Xxxxx, Esq.
O'MELVENY & XXXXX LLP
000 Xxxxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx Xxxxx, XX 00000-0000
Fax: (000) 000-0000
Xxxxxxx X. Xxxxxx, Esq.
Strategic Global Management, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Xx. Xxxx Xxxxxxxxx
Strategic Global Management, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
With copy to:
Xxxxx X. Xxxx, Esq.
Law Office of Xxxxx X. Xxxx
00000 Xxxxxx Xxxx
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
Medical Capital Corporation
Medical Provider Financial Corporation I
Medical Provider Financial Corporation II
Medical Provider Financial Corporation III
c/o Medical Capital Corporation
00000 Xxx Xxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxxxx, President
Xxxxxx X. Xxxxx, Vice President and General Counsel
Tel: 000-000-0000
Fax: 000-000-0000
30
With copy to:
Xxxx Xxxxxxxx, Esq.
Sedgwick Xxxxxx Xxxxx & Xxxxxx
One Market Xxxxx
Xxxxxxx Xxxxx
0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Pacific Coast Holdings Investment, LLC
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
and
0000 Xxxxx Xxxxxxx, Xxxxx 000
Xxxxx Xxx, XX 00000
Fax: (000) 000-0000
With copy to:
Xxxxxxx X. Xxxxxx
------------------
0000 Xxxxxx Xx.
----------------
Xxxxxxxxx, XX 00000
-------------------
West Coast Holdings, LLC
0000 Xxxxx Xxxxxxx, Xxxxx 000
Xxxxx Xxx, XX 00000
Fax: (000) 000-0000
With copy to:
----------------------
----------------------
----------------------
Ganesha Realty, LLC
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
31
With copy to:
Xxxxxxx X. Xxxxxx, Esq.
Strategic Global Management, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
The foregoing is agreed upon this 25th day of March, 2009 at Santa Ana,
California.
INTEGRATED HEALTHCARE HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------------
Printed Name: Xxxxxxx X. Xxxxxxxxx
------------------------------
Its: President and CEO
---------------------------------------
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Printed Name: Xxxxxx X. Xxxxx
------------------------------
Its: CFO
--------------------------------------
ORANGE COUNTY PHYSICIANS INVESTMENT NETWORK, LLC
By: /s/ Xxxx X. Xxxxxxxxxxx, M.D
----------------------------------------
Printed Name: Xxxx X. Xxxxxxxxxxx, M.D.
-----------------------------
Its: Co-Manager
---------------------------------------
By: /s/ Xxxx X. Xxxx, M.D.
----------------------------------------
Printed Name: Xxxx X. Xxxx, M.D.
------------------------------
Its: Co-Manager
--------------------------------------
XXXX X. XXXX, M.D.
/s/ Xxxx X. Xxxx, M.D.
--------------------------------------------
32
PACIFIC COAST HOLDINGS INVESTMENT, LLC
By: /s/ Xxxx X. Xxxxxxxxx, M.D.
----------------------------------------
Printed Name: Xxxx X. Xxxxxxxxx, M.D.
-----------------------------
Its: Manager
---------------------------------------
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Printed Name: Xxxxx Xxxxxxx
------------------------------
Its: Co-Manager
--------------------------------------
MEDICAL PROVIDER FINANCIAL CORPORATION I
MEDICAL PROVIDER FINANCIAL CORPORATION II
MEDICAL PROVIDER FINANCIAL CORPORATION III
MEDICAL CAPITAL CORPORATION
By: /s/ Xxxxxx X. Lampariell
----------------------------------------
Printed Name: Xxxxxx X. Xxxxxxxxxxx
-----------------------------
Its: President
---------------------------------------
By: /s/ Xxxxxx X. Xxxxxxxxxxx
----------------------------------------
Printed Name: Xxxxxx X. Xxxxxxxxxxx
------------------------------
Its: President
--------------------------------------
XXXXX XXXXX
/s/ Xxxxx Xxxxx
--------------------------------------------
XXXX X. XXXXXXXXX, M.D.
/s/ Xxxx X. Xxxxxxxxx, M.D
--------------------------------------------
WEST COAST HOLDINGS, LLC
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Printed Name: Xxxxx Xxxxxxx
------------------------------
Its: Manager
--------------------------------------
33
GANESHA REALTY, LLC
By: /s/ Xxxx X. Xxxxxxxxx, M.D.
----------------------------------------
Printed Name: Xxxx X. Xxxxxxxxx, M.D.
------------------------------
Its: Owner/Manager
--------------------------------------
XXXXXXX XXXXXX
/s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
34
