EXHIBIT 10.150
AGREEMENT AND MUTUAL RELEASE
THIS AGREEMENT AND MUTUAL RELEASE ("Agreement") is entered into January
___, 2003 by and among Associated Staffing Resources, Inc., a California
corporation which is a wholly owned subsidiary of OptimumCare Corporation
("Buyer"), and Social Work Services, Inc., a California corporation ("Seller")
and Xxxx Xxxxxxxxxx Xxxxx ("Shareholder"). Certain capitalized terms used herein
are defined in the Asset Purchase Agreement.
R E C I T A L S
A. Buyer, Seller and Shareholder entered into an Asset Purchase
Agreement ("Purchase Agreement") effective as of November 1, 2002 pursuant to
which Buyer agreed to acquire certain assets of Seller.
B. Buyer and Shareholder entered into an Employment Agreement
("Employment Agreement") which was to be effective as of December 1, 2002 but
which has not commenced due to Shareholder's desire to delay commencement.
C. Buyer, Seller and Shareholder desire to modify the Purchase Agreement
and to rescind the Employment Agreement prior to its commencement such that it
is void and does not become effective.
A G R E E M E N T
NOW, THEREFORE, in consideration of the mutual premises as set forth
herein, the parties hereto agree as follows:
1. Recitals. The Recitals are incorporated herein by this reference.
2. Delivery of Assets. Seller and Shareholder agree to deliver to Buyer
not later than February 7, 2003, the computer (including all hardware, software,
manuals and passwords), the four 4-button AT&T telephones, the inactive employee
files and any and all copies thereof, the inactive employee physical files and
any and all copies thereof, any and all copies of the active employee files, any
and all copies of the active customer files. Seller and Shareholder agree to
sign any documents and provide any information required by Buyer to transfer the
domain name "xxx.xxxxxxxxxxxxxxxxxx.xxx" to Buyer not later than February 7,
2003.
3. Amendment of Purchase Agreement.
(a) Section 1.4 of the Purchase Agreement is amended to read in
its entirety as follows:
"1.4 Purchase Price. The total consideration to be paid by
Buyer to Seller for the Assets (the "Purchase Price") will be $26,671.39.
(b) Section 1.5 of the Purchase Agreement is amended to read in
its entirety as follows:
1
"1.5 Payment of Purchase Price; Contingencies. Buyer will
pay the Purchase Price to Seller or for the benefit of Seller in immediately
available funds on the Closing Date."
(c) Section 9 of the Purchase Agreement is deleted in its
entirety.
4. Accounts Receivable. Seller shall notify Buyer of all payments
received by Seller after the Closing Date from any third part in connection with
or arising out of any of the Seller's receivables as listed on Exhibit A to this
Agreement which aggregate $24,532.70 (the "Receivables"). Seventy-five percent
(75%) of all payments received by Buyer of the Receivables shall be held by
Buyer in trust for the benefit of Seller. Within five business days following
receipt by Buyer of such a payment, Buyer shall deposit said payment and pay, or
cause to be paid, over to Seller, seventy five percent (75%) of the amount of
such payment or reimbursement without right of setoff. In the event a payment is
received which does not specify whether it is applicable to an invoice for
Receivables or for receivables generated by Buyer following the Effective Date,
Buyer shall first apply the payment to any unpaid Receivables of the payor.
Buyer shall be entitled to retain twenty-five percent (25%) of the Receivables
it collects.
5. Continued Assumption of Liability. Buyer shall continue to assume all
liability under (i) the Standard Multi-Tenant Office Lease -Gross dated May 25,
2001 for the real property located at 000 Xxxx Xxxxxx, Xxxx Xxxxx, Xxxxxxxxxx
(the "Real Property Lease"), (ii) the Equipment Lease Agreement dated June 6,
2001 for a Savin 9922 copier (the "Copier Lease"), and (iii) any agreements for
the utilization or maintenance of telephone services or utilities services
presently servicing the premises covered by the Real Property Lease (the
"Utilities Contracts").
6. Payment. Provided the Shareholder and Seller have delivered the
assets as set forth in Section 2 above on or before February 7, 2003, Buyer
shall pay Shareholder $7,500.00 on or before February 11, 2003.
7. Rescission of Employment Agreement. Buyer and Shareholder agree that
the Employment Agreement is hereby rescinded such that it is void and does not
become effective. Shareholder shall not be entitled to receive the options
contemplated by the Employment Agreement.
8. Non-Compete Agreement. Seller, Buyer and Shareholder agree that the
terms of the Non-Compete Agreement dated November 7, 2002 between Seller, Buyer
and Shareholder shall remain unchanged.
9. Mutual Release. Except for the obligations imposed by Sections 2, 4,
5, 6, 7 and 8 of this Agreement, each of the parties does hereby release, acquit
and forever discharge the others, their heirs, executors, administrators,
predecessors, successors and assigns, agents, representatives, officers,
directors, employees, attorneys, insurers, adjusters, subsidiaries and
affiliates, from any and all claims, demands, actions, causes of action,
damages, costs, or other claims whatsoever in law or equity, which any party may
have against any of the other parties pertaining to, relating to, in connection
with, or arising out of any matter or thing whatsoever, including without
limitation any incident, including but not limited to claims of bad faith, which
2
occurred or which are alleged to have occurred in connection with the Purchase
Agreement or the Employment Agreement. In entering into this Agreement, the
parties release, relinquish, remise, waive forever, discharge, absolve and quit
each other of and from each, every and all things, including by way of example,
but not limitation, each, every and all manner of actions, causes of action,
liabilities, debts, sums of money, controversies, indebtedness, breaches of
contract, breaches of duty or any relationships, acts, omissions, promises,
agreements, representations, damages and any demand of any type, nature, kind or
description, whether in law or in equity, or otherwise, by reason of any
matters, causes or things, whatsoever, whether known or unknown, suspected or
unsuspected, heretofore or now existing or which could, might or may be claimed
to exist from the beginning of time to the present date.
(a) Waiver of Code Provisions. Each of the parties hereto does
hereby acknowledge and agree that it is their intention that this Agreement
shall be effective as a full and final accord and satisfaction and settlement of
and as a bar to each and every claim, demand, debt, account, reckoning,
liability, obligation, cost, expense, lien, action and cause of action,
heretofore referred to and released, which any party hereto has, or has had
against the other parties hereto. In connection with such waiver and
relinquishment, each of the parties hereto acknowledges that they are aware that
they or their attorney may hereafter discover facts different from or in
addition to the facts which they or their attorney now know or believe to be
true with respect to the subject matter of this Agreement, but that it is their
intention to fully, finally, absolutely and forever settle any and all claims,
disputes and differences which now may exist or heretofore have existed between
any of the parties to this Agreement, and that in furtherance of such intention
the mutual releases herein given shall be and remain in effect as full and
complete general mutual releases notwithstanding the discovery of any such
different or additional facts. Therefore, each of the parties hereto
acknowledges that they have been informed by their respective attorneys and/or
advisors of, and that they are familiar with Section 1542 of the Civil Code of
the State of California which provides as follows:
"A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially
affected his settlement with the debtor."
Each of the parties hereto does hereby abandon, release, waive and relinquish
all rights and benefits which they may acquire under Section 1542 of the Civil
Code of the State of California or any other similar statute from any other
relevant jurisdiction pertaining to the subject matters of this Agreement.
(b) Release Not Admission of Liability. It is expressly
understood, acknowledged and agreed to that by reason of entering into this
Agreement, none of the parties admit, expressly or impliedly, any fact or
liability of any type or nature with respect to any matter, whether or not
referred to herein, and none of the parties have made any such admission and
this Agreement is entered into solely by way of compromise and settlement only.
(c) No Assignment of Claim. The parties represent and warrant
that there has been no assignment or other transfer of any interest in any claim
which they might have and therefore each of the undersigned agrees to indemnify
and hold the other harmless from any liabilities, claims, demands, damages,
costs, expenses and attorney's fees incurred by the other as
3
a result of any person asserting any such assignment or transfer of any rights
or claims under such assignment or transfer.
10. Counterparts. This Agreement may be executed simultaneously in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
11. Attorneys' Fees. In any dispute between the parties, whether or not
resulting in litigation, the party substantially prevailing shall be entitled to
recover from the other party all reasonable costs, including, without
limitation, reasonable attorney's fees.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
"Seller"
SOCIAL WORK SERVICES, INC.
By:
----------------------------------------
Xxxx Xxxxxxxxxx Xxxxx, President and
Secretary
"Buyer"
ASSOCIATED STAFFING RESOURCES, INC.
By:
----------------------------------------
Xxxxxx X. Xxxxxxx, Chief Executive
Officer
"Shareholder"
--------------------------------------------
XXXX XXXXXXXXXX XXXXX
4
Exhibit A
Remaining Account Receivables
Attached
5
