EXHIBIT 10.1
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT (the "Settlement Agreement"), made
as of March 6, 1998 by and between Selfcare, Inc. ("Selfcare"), a
corporation organized under the laws of the State of Delaware,
Trinity Biotech PLC ("Trinity"), a public limited company
incorporated in the Republic of Ireland, Flambelle Limited
("Flambelle"), a private limited company incorporated in the
Republic of Ireland and a wholly-owned subsidiary of Trinity, and
Eastcourt Limited ("Eastcourt"), a private limited company
incorporated in England and Wales and a wholly-owned subsidiary
of Flambelle,
WITNESSETH THAT:
WHEREAS, in 1994 Enviromed PLC ("Enviromed"), a public
limited company incorporated in England and Wales, acquired
certain shares of the common stock of Selfcare represented by
Certificate No. 122, dated April 5, 1994, for 45,656 shares of
the common stock of Selfcare (the "April Shares"), and by
Certificate No. 170, dated December 22, 1994, for 14,238 shares
of the common stock of Selfcare (the "December Shares");
WHEREAS, after a 13-for-1 split of the common stock of
Selfcare that occurred on or about June 13, 1996 (the "13-for-1
Split"), the April Shares and the December Shares (together, the
"Disputed Shares") collectively total 778,622 shares of the
common stock of Selfcare;
WHEREAS, Trinity, Flambelle, and Eastcourt contend that, by
means of transactions occurring on or about August 28, 1996 and
November 1, 1996, Enviromed transferred ownership of the Disputed
Shares to Flambelle and Eastcourt, and that Flambelle and
Eastcourt are the lawful owners of the Disputed Shares;
WHEREAS, Selfcare contends that, as a result of Enviromed's
breach and repudiation of certain agreements pursuant to which
Enviromed acquired the Disputed Shares, equitable title to the
Disputed Shares passed to Selfcare prior to the transfer of any
interest in the Disputed Shares to Flambelle or Eastcourt, and
that Flambelle and Eastcourt have no ownership interest in the
Disputed Shares;
WHEREAS, on or about February 12, 1997 Flambelle and
Eastcourt commenced a lawsuit against Selfcare styled FLAMBELLE
LIMITED AND EASTCOURT LIMITED V. SELFCARE, INC., pending as Civil
Action No. C.A. No. 97-10323-GAO in the United States District
Court for the District of Massachusetts ("Civil Action No. 97-
10323-GAO");
WHEREAS, in Civil Action No. 97-10323-GAO Flambelle and
Eastcourt contend, inter alia, that they are the lawful owners of
the Disputed Shares and seek declaratory and injunctive relief as
well as damages for the alleged breach of a certain registration
rights agreement relating to some or all of the Disputed Shares,
and Selfcare contends, INTER ALIA, that equitable title to the
Disputed Shares has passed to it and that Selfcare has no
liability to Flambelle or Eastcourt; and
WHEREAS, Selfcare, Trinity, Flambelle, and Eastcourt at this
time desire to adjust, settle and compromise all claims and
demands made by Flambelle or Eastcourt in Civil Action No. 97-
10323-GAO or arising out of the matters described in any of the
pleadings therein;
NOW, THEREFORE, in consideration of the mutual promises
contained in this Settlement Agreement, and intending to be
legally bound thereby, Selfcare, Trinity, Flambelle and Eastcourt
(collectively, the "Parties") do hereby mutually agree as
follows:
1. With regard to ownership of the Disputed Shares,
a. Flambelle shall have full legal and equitable title
to 80% of the Disputed Shares, totaling 622,898 shares of the
common stock of Selfcare (the "Flambelle-owned Shares"), and
Selfcare hereby relinquishes all claims to any ownership interest
in the Flambelle-owned Shares;
b. Selfcare shall have full legal and equitable title
to 20% of the Disputed Shares, totaling 155,724 shares of the
common stock of Selfcare (the "Selfcare-owned Shares"), and
Flambelle, Eastcourt, and Trinity hereby relinquish all claims to
any ownership interest in the Selfcare-owned Shares;
c. in order to effect the division of the Disputed
shares referred to in the foregoing Subsections 1.a and 1.b,
i. Flambelle and Eastcourt shall indorse in blank
and deliver to Selfcare Certificate No. 122, representing
ownership of the April Shares, and Certificate No. 170,
representing ownership of the December Shares, which stock
certificates together represent ownership of all the Disputed
Shares; and simultaneously
ii. Selfcare shall deliver to Flambelle a stock
certificate representing ownership by Flambelle of 622,898 shares
of the common stock of Selfcare, which certificate shall contain
no restrictions on the transfer of such shares.
iii. Selfcare acknowledges and agrees that the
above-mentioned 622,898 Flambelle-owned Shares are a portion of
the Disputed Shares and are being retained by Flambelle in
accordance with the terms of this Settlement Agreement and do not
represent any newly-issued shares of Selfcare. Selfcare further
(a) represents and warrants that it knows of no reason why the
622,898 Flambelle-owned shares, when delivered to Flambelle, will
not be freely transferable and (b) agrees that it will give no
stop transfer instruction or otherwise impede or interfere in any
way in the transfer of such shares to any third party by
Flambelle or any nominee of Flambelle.
2. Flambelle and Eastcourt shall dismiss Civil Action No.
97-10323-GAO with prejudice.
3. Each of Trinity, Flambelle and Eastcourt hereby remises,
releases and forever discharges Selfcare, its parent
corporations, subsidiaries, affiliates, predecessors, successors
and assigns, and each of their past and present officers,
directors, stockholders, employees, agents, representatives,
counsel, and attorneys and their respective heirs, executors,
administrators, representatives, successors and assigns, of and
from any and all debts, demands, actions, causes of action,
suits, controversies, proceedings, claims, sums of money,
accounts, reckonings, covenants, contracts, agreements, promises,
judgments, executions, damages, and liabilities whatsoever, in
law and in equity, which against any of them Trinity, Flambelle,
or Eastcourt, their parent corporations, subsidiaries,
affiliates, predecessors, successors or assigns ever had, now
have or hereafter can, shall or may ever have arising out of the
matters described in any of the pleadings in Civil Action No. 97-
10323-GAO.
4. Selfcare hereby remises, releases and forever discharges
each of Trinity, Flambelle, and Eastcourt, their parent
corporations, subsidiaries, affiliates, predecessors, successors
and assigns, and each of their past and present officers,
directors, stockholders, employees, agents, representatives,
counsel, and attorneys and their respective heirs, executors,
administrators, representatives, successors and assigns, of and
from any and all debts, demands, actions, causes of action,
suits, controversies, proceedings, claims, sums of money,
accounts, reckonings, covenants, contracts, agreements, promises,
judgments, executions, damages, and liabilities whatsoever, in
law and in equity, which against any of them Selfcare, its parent
corporations, subsidiaries, affiliates, predecessors, successors
or assigns ever had, now have or hereafter can, shall or may ever
have arising out of the matters described in any of the pleadings
in Civil Action No. 97-10323-GAO.
5. Each of Flambelle, Eastcourt and Trinity warrants and
represents to Selfcare that they have not assigned or transferred
or purported to assign or transfer ownership of any rights,
claims, or interests in or to the Disputed Shares.
6. It is the understanding and intent of each of Selfcare,
Trinity, Flambelle, and Eastcourt that by the execution, delivery
and performance of this Settlement Agreement, Selfcare does not
waive, release, discharge, or prejudice in any manner any of its
claims, demands, causes of action, rights or other interests that
it has or may have against Enviromed, its parent, subsidiary or
affiliated corporations, their predecessors, successors, or
assigns, or their officers, directors, stockholders, employees,
agents, or representatives, in connection with the Disputed
Shares, including without limitation in connection with any
agreements pursuant to which Enviromed acquired the Disputed
Shares or any transactions whereby Enviromed transferred or
purported to transfer ownership of the Disputed Shares, and the
execution, delivery and performance of this Settlement Agreement
by the Parties shall not be construed to waive, release,
discharge, or prejudice in any manner any such claims, demands,
causes of action, rights or other interests of Selfcare.
7. Each Party warrants and represents to the other Parties
that its execution, delivery and performance of this Settlement
Agreement have been duly authorized by all necessary corporate
action and that the person executing this Settlement Agreement on
its behalf is fully authorized to do so. Each Party agrees to
execute any documents reasonably necessary or desirable to
effectuate the purposes of this Settlement Agreement.
8. Each of the Parties acknowledges that each other Party
has entered into this Settlement Agreement in order to settle and
compromise disputed claims and that the execution, delivery and
performance of this Settlement Agreement by the Parties is not an
admission or evidence of any obligations or liabilities
whatsoever of any Party to any other Party or the truth of any of
the allegations made in Civil Action No. 97-10323-GAO.
9. This Settlement Agreement constitutes the complete and
exclusive agreement among the Parties with respect to the subject
matter hereof and supersedes all prior and contemporaneous
agreements and understandings, oral or written, among the Parties
with respect to such subject matter. In entering into this
Settlement Agreement, no Party is relying on any representation,
promise, proposal, warranty, covenant, condition, inducement,
statement of intention, or other statement or communication,
express or implied, made by any other Party except as expressly
set forth in this Settlement Agreement.
10. The Parties acknowledge and agree that this Settlement
Agreement has been drafted and reviewed by counsel for the
Parties and shall not create any presumption, or be construed
against any Party, each Party expressly waiving the doctrine of
CONTRA PROFERENTEM.
11. This Settlement Agreement shall be binding upon and
inure to the benefit of the Parties, their parent, subsidiary and
affiliated corporations, and their predecessors, successors and
assigns, and each of their officers, directors, stockholders,
employees, agents, representatives, counsel, and attorneys and
their respective heirs, executors, administrators,
representatives, successors and assigns.
12. This Settlement Agreement shall be governed by and
construed in accordance with the substantive law of the
Commonwealth of Massachusetts.
13. This Settlement Agreement may be executed in one or
more counterparts, each of which when so executed shall be deemed
to be an original, and all such counterparts together shall
constitute one and the same instrument.
IN WITNESS THEREOF, the Parties have executed this
Settlement Agreement as of the day and year first above written.
SELFCARE, INC.
By:__________________________
Its
Hereunto duly authorized
FLAMBELLE LIMITED
By:__________________________
Its
Hereunto duly authorized
EASTCOURT LIMITED
By:__________________________
Its
Hereunto duly authorized
TRINITY BIOTECH PLC
By:__________________________
Its
Hereunto duly authorized
