SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE
Exhibit
99.1
This
Settlement Agreement and Mutual General Release ("Agreement") is entered as of
August 26, 2008 between HEMACARE CORPORATION (“HemaCare”) on the one hand and
XXXXXX XXXXX (“Xxxxx”) and XXXXXXXX XXXX (“Adia”) on the other hand, with
reference to the following:
RECITALS
WHEREAS,
in or around August 2006, HemaCare on the one hand and Mauro and Adia on the
other hand, entered a Stock Purchase Agreement, which the parties amended in or
around November, 2006 (“SPA”);
WHEREAS,
pursuant to the SPA, HemaCare purchased all of Mauro’s and Adia’s issued and
outstanding stock of Teragenix Corporation, a Florida corporation (“Teragenix”)
which, after the transaction, became known as HemaCare BioScience, Inc.
(“HemaCare BioScience”);
WHEREAS,
as consideration for the purchase of the Teragenix stock, HemaCare, among other
things, transferred to Mauro and Adia, 376,000 shares of HemaCare common
stock. Mauro and Adia currently have in their possession 248,000
shares of HemaCare common stock (“HemaCare Stock”). HemaCare also
delivered to Mauro and Adia promissory notes in the amount of $200,000
(“Promissory Notes”) (copies of the Promissory Notes are attached hereto as
Exhibit “A”);
WHEREAS,
disputes have arisen in connection with the SPA and the Promissory
Notes;
WHEREAS,
HemaCare filed a lawsuit against Mauro and Adia in the Los Angeles County
Superior Court, bearing Case No. LC082173 (the “Lawsuit”), alleging causes of
action against Mauro and Adia for fraudulent inducement, fraud and breach of
contract;
WHEREAS,
Mauro and Adia have alleged that HemaCare owes Mauro and Adia $200,000, plus
interest, based on the amounts of the Promissory Notes;
WHEREAS,
this Agreement is a compromise of the claims and liabilities alleged between the
parties to this Agreement and shall not be construed as an admission of
liability or wrongdoing by the parties or by any of the individuals or entities
released in this Agreement; and
WHEREAS,
the parties desire to fully and finally settle and resolve all disputes and
differences which exist or may exist between them.
In
consideration of the Recitals and covenants below, the parties agree as
follows:
AGREEMENT
1. No Admission of
Liability. The parties mutually acknowledge and agree that (i)
the settlement, (ii) the delivery of this Agreement, (iii) the consideration
provided for in this Agreement, and (iv) everything contained or omitted from
this Agreement, shall not be interpreted or construed as an admission of
liability. Rather, this Agreement represents the settlement of
disputed claims and the parties expressly deny any liability.
2. Consideration. As
consideration for this Agreement, the receipt and sufficiency of which are
hereby acknowledged, Mauro and Adia shall, simultaneously, with the execution of
this Agreement: (i) cancel the Promissory Notes and waive all
payments, interest or other rights associated with the Promissory Notes; (ii)
pay to HemaCare the following: (a) Mauro shall pay to
HemaCare the amount of Twenty-Seven Thousand, Six-Hundred and Twenty-One Dollars
and 88/100 ($27,621.88); and (b) Adia shall pay to HemaCare the amount of
Twenty-Two Thousand, Three Hundred Seventy-Eight and 12/100 ($22,378.12); (iii)
transfer to HemaCare all right, title and interest in and to the HemaCare
Stock;
3. Dismissal of the
Lawsuit. After receipt of this Agreement fully executed by
Mauro and Adia and after Mauro and Adia provide to HemaCare all the
consideration specified in paragraph 2 above, HemaCare agrees to dismiss the
Lawsuit with prejudice and serve on Mauro and Adia a conformed copy of the
dismissal.
4. Releases by Mauro and
Adia. Effective on signing this Agreement, and with the
exception of the obligations stated in this Agreement, Mauro and Adia, for
themselves and for each of their respective representatives, heirs, agents,
successors and assigns (collectively “Mauro and Adia Releasors”), irrevocably
release and forever discharge HemaCare and each of its employees, affiliates,
predecessors, successors, subsidiaries, agents, servants, officers, directors,
principals, owners, stockholders, representatives, insurers, investors, members,
attorneys, experts, parent and related companies, joint venturers, assigns and
any and all of their associated, affiliated or related persons or entities of
any type or nature whatsoever, whether current or former (collectively “Mauro’s
and Adia’s Releasees”), of and from any and all claims, demands, damages, debts,
liabilities, accounts, reckonings, obligations, costs, expenses, liens, actions
and causes of action of every kind and nature whatsoever whether now known or
unknown, suspected or unsuspected which the Mauro and Adia Releasors now have,
own, or hold, or at any time heretofore ever had, owned or held, or could, shall
or may hereafter have, own or hold including any claim under any rule, statute,
regulation or local law (“Mauro’s and Adia’s Released Claims”). Mauro
and Adia acknowledge and agree that the term Mauro’s and Adia’s Released Claims
includes, but is not limited to claims in connection with the Promissory Notes,
the HemaCare Stock, the SPA, as well as any claim for contract (oral, written,
implied in fact or implied in law) or tort, including alter ego or agency
claims, or claims for interference, defamation, wrongful termination, infliction
of emotional distress, discrimination, retaliation, fraud, misrepresentation,
and any claim, lien, liability, matter, cause, fact, thing, act or omission
whatsoever occurring or existing at any time to and including the date of this
Agreement.
5. Releases by
HemaCare. Effective on signing this Agreement, and with the
exception of the obligations stated in this Agreement, HemaCare irrevocably
releases and forever discharges Mauro and Adia of and from any and all claims,
demands, damages, debts, liabilities, accounts, reckonings, obligations, costs,
expenses, liens, actions and causes of action of every kind and nature
whatsoever whether now known or unknown, suspected or unsuspected which HemaCare
now has, owns, or holds, or at any time heretofore ever had, owned or held, or
could, shall or may hereafter have, own or hold including any claim under any
rule, statute, regulation or local law (“HemaCare’s Released
Claims”). HemaCare acknowledges and agrees that the term HemaCare’s
Released Claims includes, but is not limited to claims alleged in the Lawsuit as
well as any claim for contract (oral, written, implied in fact or implied in
law) or tort, including claims for interference, fraud, misrepresentation, and
any claim, lien, liability, matter, cause, fact, thing, act or omission
whatsoever occurring or existing at any time to and including the date of this
Agreement.
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6. Scope. It
is the parties’ intention in giving and accepting the consideration in this
Agreement, and in executing this Agreement that this Agreement shall be a full
and final release of all claims. The parties acknowledge familiarity
with Section 1542 of the Civil Code of the State of California which
provides:
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.
7. Waiver and
Acknowledgment. The parties waive any right or benefit each
has or may have under Section 1542, or under any similar law of similar effect
in any jurisdiction, including under Florida law, to the full extent each may
lawfully waive all such rights and benefits pertaining to the subject matter of
this Agreement. The parties acknowledge they may hereafter discover
facts in addition to or different from those they now know or believe to be true
with respect to the subject matter of this Agreement, and that it is their
intention to fully and forever settle and release all disputes and differences,
known or unknown, suspected or unsuspected, which do now exist, may exist
or heretofore have existed and that in furtherance of such intention the
releases herein given shall be and remain in effect as full and complete general
releases, notwithstanding the discovery or existence of any such additional or
different facts.
8. No
Assignment. The parties warrant and represent that neither
they, nor anyone on their behalf, previously assigned or transferred or
purported to assign or transfer to any person or entity not a party to this
Agreement any claims released in this Agreement, or any part or portion
thereof. Specifically, Mauro and Adia warrant and represent that each
of them is the sole owner of all rights, title and interests in and to the
Promissory Notes and that their cancellation of the Promissory Notes eliminates
all obligations in connection with the Promissory Notes. Mauro and
Adia further warrant and represent that each of them is the sole owner of all
rights, title and interest in and to the HemaCare stock which they are hereby
transferring to HemaCare. Mauro and Adia further warrant and
represent that they alone have full and complete authority to cancel the
Promissory Notes and that no other individual or entity has any interest in the
Promissory Notes or needs to provide consent in order to cancel the Promissory
Notes. Mauro and Adia acknowledge, however, that HemaCare BioScience
filed an Assignment for the Benefit of Creditors, pursuant to Florida Statutes
Section 727 et al. (“Assignee”). Mauro and Adia agree that nothing in
this Agreement is intended to cause a release of their claims filed with the
Assignee or of any claims the Assignee may have against Mauro and
Adia. The parties acknowledge and agree that these warranties and
representations are essential and material terms of this Agreement without
which none of the consideration received in connection herewith would have been
made or delivered. The foregoing warranties and representations
shall survive the delivery of this Agreement, and the parties shall each
indemnify and hold the other harmless from any claims, demands or actions which
have been assigned or transferred, or purported to have been assigned or
transferred, in violation of the foregoing representation and warranty,
including all damages, attorneys’ fees and costs if there is a breach or
purported breach of these representations and warranties.
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a. Agreement
Explained. The parties had the opportunity to obtain a
complete explanation from legal counsel of their own choosing as to the meaning
and legal effect of each term in this Agreement. The parties entered
into this Agreement with full knowledge as to the meanings and effects of this
Agreement.
b. No Actions or
Proceedings. Other than the Lawsuit there is no pending
or threatened suit, proceeding or compliance review before any court,
governmental agency, or arbitrator with respect to Mauro’s and Adia’s Released
Claims or with respect to HemaCare’s Released Claims. The parties
agree to immediately dismiss with prejudice any such suit, proceeding or
compliance review and provide proof of such dismissal immediately to the
parties’ counsel.
c. Actions By Third
Parties. The parties agree not to benefit from any lawsuit,
administrative proceeding or compliance review brought by any other person or
agency against any of the individuals and entities released in this Agreement,
to the fullest extent of law.
HemaCare’s
Notice Address:
Attention
Xxx Xxxxxxxx
Lewitt,
Hackman, Xxxxxxx, Xxxxxxxx & Xxxxxx
00000
Xxxxxxx Xxxx.
Xxxxx
0000
Xxxxxx,
XX 00000
Mauro’s
Notice Address:
00000
Xxxxxx Xxxx Xxxx
Xxxx
Xxxxx, XX 00000
Adia’s
Notice Address:
00000
Xxxxxx Xxxxx Xxxxxx
Xxxxxxx
Xxxxx, XX 00000
a. Law. This
Agreement shall be interpreted, enforced and governed under California
law.
b. Severability. The
provisions of this Agreement shall be severable. If any
provision is held by an arbitrator or a court of competent jurisdiction to
be unenforceable, in whole or in part, the remainder shall remain in effect and
the stricken provision shall be replaced, to the extent possible, with an
enforceable provision as similar in tenor as legally possible.
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c. Counterparts. This
Agreement may be signed by facsimile and in one or more counterparts, each of
which shall be deemed an original instrument and together shall constitute the
entire Agreement.
d. Entire
Agreement. This is the entire Agreement of the parties
relating to the transactions set forth herein, and all prior understandings,
representations and statements, oral, written or implied, concerning this
transaction are superseded by this Agreement. No amendments will be
valid unless written and signed by both parties. The parties
acknowledge they are not executing this Agreement in reliance on any oral
promise, representation or warranty not contained herein.
e. Binding on
Heirs. This Agreement shall inure to the benefit of and be
binding upon the heirs, executors, administrators and legal successors of the
parties hereto.
f. Negotiated
Agreement. This Agreement is the result of negotiations
between the parties. Any ambiguity shall not be construed against
either side on the basis of such side having drafted or prepared the language of
any provision.
g. Payments of Costs, Expenses,
and Fees. All costs and expenses incurred in negotiating this
Agreement and in connection with the Lawsuit shall be borne by each party by
themselves. If any claim, controversy, dispute or legal action is
brought in connection with the terms or conditions of this Agreement or for the
enforcement of this Agreement, the prevailing party shall be entitled to recover
reasonable attorneys' fees and costs incurred, in addition to any other relief
to which they may be entitled, whether or not suit or arbitration is filed and
whether or not any such suit or arbitration proceeds to judgment.
h. Understood
Agreement/Independent Counsel. The parties acknowledge they
read and understood this Agreement, in its entirety, and are voluntarily
entering into this Agreement of their own free will, without duress or undue
influence by any non-party or by any party to this Agreement. The
parties, and each of them, acknowledge, represent and warrant that they were
represented by independent legal counsel of their own choice throughout all
negotiations preceding and occurring in connection with the negotiation and
execution of this Agreement.
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Xxxxxx
Xxxxx
/s/ Xxxxxx
Xxxxx
|
HemaCare
Corporation
/s/ Xxxxxx
Xxxxxxxxxxxx
By: Xxxxxx
Xxxxxxxxxxxx
Its:
Interim Chief
Executive Officer
|
Xxxxxxxx
Xxxx
/s/ Xxxxxxxx
Xxxx
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