Exhibit 10.3
SETTLEMENT AGREEMENT AND MUTUAL RELEASE OF ALL CLAIMS
-----------------------------------------------------
This Settlement Agreement and Mutual Release of Claims ( Hereinafter
"Agreement") is made and entered into by the following parties: Xxxxxxx X. Xxxx
(Hereinafter "Kray") and Staar Surgical Company, Inc. a Delaware Corporation
(Hereinafter "Staar").
RECITALS
There is now pending before the Superior Court of the State of
California, for the County of Los Angeles, NorthEast District, a civil action
captioned, Kray x. Xxxxx, Case Number GC026905 (Hereinafter "Action"), in which
Kray has received a Judgment for damages.
Whereas, the parties now desire to settle and resolve fully and finally
all of their claims against each other whether they be past, present or future,
as to Kray's Judgment in the Action against Staar, Staar's challenges to and
appeal of Kray's Judgment in the Action, and also as to each and every one of
Staar's alleged claims for damages against Kray, including but not limited to
any specific claims for damages, negligence, breach of contract, professional
negligence and or indemnity concerning the removal of several million dollars of
silicon IOL lenses that had been sold to customers by Staar, including the cost
of removal of said lenses from the market, damages to reputation, and damages
caused by claims made resulting from an increased number of torn lenses, without
any admission of liability or of wrongdoing by either Staar or by Kray .
In consideration of this Agreement, Staar shall pay Kray, the sum of
$150,000.00, payable in three equal installments of $50,000.00, with the first
installment due on July 15, 2002, the second installment due on August 15, 2002
and the third installment due on September 15, 2002, made payable to Xxxxxxx X.
Xxxx and Xxxxxx X. Xxxxxxx ACTA.
In consideration of this Agreement, Kray shall voluntarily stay
enforcement of the Judgment in the Action, while Staar pays the installments as
agreed and under the terms set forth in the above paragraph, and only after full
payment $150,000.00 under the terms set forth above, Kray shall file an
Acknowledgment of Satisfaction of Judgment in the action and provide a conformed
copy to Staar by no later than October 15, 2002.
All parties hereby enter into mutual releases as set forth in this
Agreement.
1
AGREEMENT
Each recital set forth above is incorporated herein by this reference
as if fully set forth.
In consideration of the matters set forth in the recitals above, each
party, Kray and Staar, both as Releasor and as Releasee, agrees to fully and
completely release each other party respectively, on their own behalf, and only
on behalf of their respective past and present employees, their attorneys of
record in the Action, their past and present Officers, Directors and
Shareholders, subsidiaries, parent companies, partnerships and joint ventures,
predecessors, successors and assigns, from any and all demands, liabilities,
causes of action and all claims, whether the claims are known, suspected or
unknown, whether anticipated or unanticipated, whether past or present or
future, whether based in tort, contract, Federal or State Statute, or other
legal theory of recovery, including but not limited to any claims relating as to
Kray's Judgment in the Action against Staar, Staar's challenges to Kray's
Judgment in the Action including any appeal thereof, and also as to each and
every one of Staar's alleged claims for damages against Kray, including but not
limited to any specific claims for damages, negligence, breach of contract,
professional negligence and or indemnity concerning the removal of several
million dollars of silicon IOL lenses that had been sold to customers by Staar,
including the cost of removal of said lenses from the market, damages to
reputation, and damages caused by claims made resulting from an increased number
of torn lenses, and any claims arising from the prosecution of the Action by
Kray or his attorney.
Each party, Kray and Staar, respectively, enter into this Agreement as
a mutual, full and final general release, of all matters, including those set
forth above, and specifically waiving the provisions of California Civil Code
Section 1542, to effectuate the fullest possible general release.
California Civil Code Section 1542 provides that " 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 party, Kray and Staar ,represents and warrants that no promise or
inducement has been offered except as set forth in this Agreement.
Each party, Kray and Staar, represents and warrants that he/she/it has
not assigned or transferred their claims against each other, directly or by way
of subrogation, to any other person or entity.
Each party, Kray and Staar, represents and warrants that he/she/it has
exercised his own judgment after the opportunity to consult with legal counsel
and or any other advisor of his/her/its choice and warrants that in entering
this Agreement that he/she/it has not relied upon any representations made by
any other party or any other third party.
2
Each party, Kray and Staar, represents and warrants that this Agreement
is executed free of duress and without reliance upon any warranty, statement or
representation which is not set forth in writing in this Agreement and that
parole evidence may not be used to augment or interpret this agreement.
Each party, Kray and Staar, understands this Agreement is a compromise
of matters involving disputed liability and disputed issues of law and fact and
that he/she/it assumes the risk of the possibility that they may discover
differences in the law or facts which they now believe to be true, and that this
Agreement shall remain effective notwithstanding any such difference.
Each Releasor, Kray and Staar, warrants that he/she/it is of legal age
and capacity, legally competent, that he/she/it has fully read and understood
and voluntarily accepted this agreement.
Each party, Kray and Staar, shall bear his/her/its own costs, expenses
and attorneys fees arising from the Action and as to the claims discharged in
this Agreement and or relating to this Agreement.
This Agreement shall be construed under the laws of the State of
California and jurisdiction over this Agreement shall be solely in Los Angeles
County California and the Court in the Action shall retain jurisdiction over the
obligations required by this Agreement.
To the extent any term or terms of this Agreement are construed or
adjudged to be invalid or partially enforceable, the remaining terms are to
remain in full force and effect.
This Agreement is deemed to have been drafted jointly by all parties,
Kray and Staar, each, through his/her/its legal representative, who have
reviewed and contributed to the revision of the terms contained in it such that
any uncertainty or ambiguity is not to be construed against any one of the
parties hereto.
This agreement may be executed in counterparts by each party hereto and
is effective upon execution. Fax signatures are binding.
The effective date of this agreement shall be June 20, 2002.
This document is the full integration and the entire agreement of the
parties, Kray and Staar, and replaces any and all prior agreements or
understandings in writing or oral.
3
This Agreement may only be modified or amended by a written document
signed by all parties.
IT IS SO AGREED:
DATED:____________ ____________________________ Xxxxxxx X. Xxxx
DATED: 7/11/02 /s/________________________ Staar Surgical
------------
Company, Inc., a Delaware Corporation by its President, Xxxxx Xxxxxx authorized
to sign on its behalf
APPROVED AS TO FORM AND CONTENT:
DATED:____________ ____________________________ Xxxxxx X. Xxxxxxx,
Counsel for Xxxxxxx X. Xxxx
Xxxxxx, Xxxxxxxxxx & Xxxxx
DATED:____________ _____ ____________________________ by Xxxxxxx Xxxxx,
Counsel for Staar Surgical Company, Inc a Delaware Corporation
4
