SETTLEMENT AGREEMENT AND GENERAL RELEASE
SETTLEMENT
AGREEMENT AND GENERAL RELEASE
THIS SETTLEMENT AGREEMENT AND GENERAL
RELEASE (“Agreement”) is made and
entered into as of April 30, 2009, by and among Xxxxxx Xxxxxx, an individual
(“Xxxxxx”), Xxxxxx X.
Sock, an individual (“Sock”), Xxx Xxxxxxxxxx, an
individual (“Xxxxxxxxxx”) and Xxxxxx,
Kenegos & Kadin (“Kaplan”, together with Sock,
Xxxxxxxxxx and Xxxxxx, the “Xxxxxx Parties” and each
individually a “Xxxxxx Party”) and Bio Solutions Manufacturing, Inc., a
Nevada corporation (the “Company”). Xxxxxx,
Sock, Xxxxxxxxxx Kaplan, and the Company are collectively referred to as the
“Parties”.
RECITALS
WHEREAS, on or about November
27, 2007, Xxxxxx Xxxxxx and Sock (collectively, the “Claimants”) commenced an
action against the Company in the Superior Court of California for the County of
Los Angeles, Case No. BC381299 (the “Action”);
WHEREAS, Xxxxxx Xxxxxx died on
December 14, 2008, and on March 31, 2009 the parties stipulated to allow Xxxxxx
Xxxxxx, as Xxxxxx Xxxxxx’x successor in interest to be substituted as a Claimant
and the Superior Court of California approved the stipulation and Xxxxxx Xxxxxx
was substituted into the Action in lieu of Xxxxxx
Xxxxxx;
WHEREAS, in order to avoid any
further costs, burdens, or distractions, and uncertainties of litigation, the
Parties now desire, and through the execution of this Agreement, intend to
dispose of and resolve fully and completely any and all disputes, claims, issues
and differences between them, including, but not limited to,
any and all actual or implied claims, demands or causes of action asserted by
the Parties or which could have been asserted by or against the Parties in any
action or proceeding in any legal, administrative or other forum
whatsoever.
AGREEMENT
NOW, THEREFORE, in
consideration of the foregoing, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
Section
1. Consideration. The Parties shall
exchange the following consideration:
1.1 Delivery
of Shares. Within 5 business days after execution of this
Agreement, the Company will issue and deliver to the Xxxxxx Parties certificates
representing 92,000 shares (the “Shares”) of the Company’s
Series B Preferred Stock, which shares are convertible into shares of the
Company’s common stock (the “Common
Stock”). The Shares shall be issued and delivered as follows:
23,000 to Xxxxxx, 23,000 to Sock, 23,000 to Xxxxxxxxxx and 23,000 to
Kaplan
1.2 Dismissal. Concurrently
herewith, the Claimants shall file with the Los Angeles Superior Court a
Dismissal with Prejudice with respect to the Action, with the Court reserving
jurisdiction to enforce this Settlement Agreement and will deliver a copy of the
same to the Company.
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1.3 Rule 144
Opinions. If any shares of the Common Stock deliverable under
this Agreement upon conversion of the Series B Preferred Stock (the “Conversion Shares”), or
otherwise held by a Xxxxxx Party may be resold in the absence of an effective
registration thereof under the Securities Act of 1933, as amended, pursuant to
Rule 144, then upon the request by x x Xxxxxx Party and the delivery by the
Xxxxxx Party of standard and customary forms and certifications, the Company
shall deliver, at no cost to any Xxxxxx Party, an opinion of the Company’s
counsel to that effect, acceptable to the Company’s transfer agent within five
(5) business days of receipt of such request.
Section
2. Termination
of Agreement. All rights, duties and
obligations of the Parties, if any, under that certain Reorganization and Stock
Purchase Agreement by and between Xxxxxx, Sock and the Company dated on or about
February 1, 2004 and any documents related thereto (the “Reorganization
Agreement”) shall be immediately
terminated upon execution of this Agreement.
Section
3. Claimants’
Representations and Warranties. To induce the Company to
enter into this Agreement, the Xxxxxx Parties represent and warrant the
following to the Company:
3.1 Existence
and Power
Each Xxxxxx Party has adequate authority, power, and legal right to enter into,
execute, deliver, and perform the terms of this Agreement and to consummate the
transactions contemplated thereby. The Agreement, upon its execution
and delivery, will constitute a valid, legal, and binding obligation of each
Xxxxxx Party, enforceable in accordance with its terms, subject only to
applicable bankruptcy, insolvency or similar laws generally affecting the
enforcement of creditor’s rights.
3.2 Information
on the Xxxxxx Parties. Each Xxxxxx Party
is, and will be at the time of any conversion of the Series B Preferred Stock,
experienced in investments and business matters, has made investments of a
speculative nature and has purchased securities of United States publicly-owned
companies in the past and, with its representatives, has such knowledge and
experience in financial, tax and other business matters as to enable such Xxxxxx
Party to utilize the information made available by the Company to evaluate the
merits and risks of and to make an informed investment decision with respect to
the proposed acceptance of the Company’s Series B Preferred Stock, which
represents a speculative investment. Each Xxxxxx Party has the
authority and is duly and legally qualified to receive and own the Shares, and
the Conversion Shares (collectively, the “Securities”). Each
Xxxxxx Party is able to bear the risk of such investment for an indefinite
period and to afford a complete loss thereof.
3.3 Receipt
of Shares. Each Xxxxxx Party has acquired the Shares as
principal for its own account for investment only and not with a view toward, or
for resale in connection with, the public sale or any distribution
thereof.
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3.4 Compliance
with Securities Act. Each Xxxxxx Party understands and agrees
that the Securities have not been registered under the Securities Act of 1933,
as amended or any applicable state securities laws, by reason of their issuance
in a transaction that does not require registration under the Securities Act of
1933, as amended (based in part on the accuracy of the representations and
warranties of each Xxxxxx Party contained herein), and that such Securities must
be held indefinitely unless a subsequent disposition is registered under the
Securities Act of 1933, as amended or any applicable state securities laws or is
exempt from such registration.
3.5 Legend. The Shares and
the Conversion Shares shall bear the following or similar legend:
“THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. THESE SHARES MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH SECURITIES ACT OR ANY APPLICABLE STATE
SECURITIES LAW OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY
THAT SUCH REGISTRATION IS NOT REQUIRED.”
3.6 Communication
of Offer. The offer to issue the Securities was directly
communicated to each Xxxxxx Party by the Company. At no time was any
Xxxxxx Party presented with or solicited by any leaflet, newspaper or magazine
article, radio or television advertisement, or any other form of general
advertising or solicited or invited to attend a promotional meeting otherwise
than in connection and concurrently with such communicated offer.
3.7 Restricted
Securities. Each Xxxxxx Party understands that the
Securities have not been registered under the Securities Act of 1933, as
amended, and no Xxxxxx Party will sell, offer to sell, assign, pledge,
hypothecate or otherwise transfer any of the Securities unless pursuant to an
effective registration statement under the Securities Act of 1933, as amended,
or pursuant to a valid exemption from registration.
3.8 No
Governmental Review. Each Xxxxxx Party understands that no
United States federal or state agency or any other governmental or state agency
has passed on or made recommendations or endorsement of the Securities or the
suitability of the investment in the Securities, nor have such authorities
passed upon or endorsed the merits of the offering of the
Securities.
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Section
4. Release,
Termination, and Waiver.
4.1 The
Xxxxxx Parties on behalf of themselves and each of their respective agents,
attorneys, insurers, heirs, assigns, beneficiaries, executors, trustees,
conservators, representatives, predecessors-in-interest, successors-in-interest,
and whomsoever may claim by, under or through them, and all persons acting by,
through, under or in concert with any of them (the “Xxxxxx Releasing Parties”)
hereby irrevocably and unconditionally forever release, remise, acquit and
discharge the Company, and its present, former or future agents,
representatives, employees, independent contractors, directors, shareholders,
officers, attorneys, insurers, subsidiaries, divisions, parents, assigns,
affiliates, predecessors and successors (collectively, the “Xxxxxx Released Parties”) from
and against any and all debts, obligations, losses, costs, promises, covenants,
agreements, contracts, endorsements, bonds, controversies, suits, actions,
causes of action, misrepresentations, defamatory statements, tortuous conduct,
acts or omissions, rights, obligations, liabilities, judgments, damages,
expenses, claims, counterclaims, cross-claims, or demands, in law or equity,
asserted or unasserted, express or implied, foreseen or unforeseen, real or
imaginary, alleged or actual, suspected or unsuspected, known or unknown,
liquidated or non-liquidated, of any kind or nature or description whatsoever,
arising from the beginning of the world through the date of this Agreement which
each of the Xxxxxx Releasing Parties ever had, presently have, may have, or
claim or assert to have, or hereafter have, may have, or claim or assert to
have, against any of the Xxxxxx Released Parties (the “Xxxxxx Released
Claims”). This release shall not affect the rights of the
Xxxxxx Parties under this Agreement or the Certificate of Designation
Establishing Series B Preferred Stock of the Company.
4.2 The
Company, on behalf of itself and its agents, attorneys, insurers, heirs,
assigns, beneficiaries, executors, trustees, conservators, representatives,
predecessors-in-interest, successors-in-interest, and whomsoever may claim by,
under or through it, and all persons acting by, through, under or in concert
with it (the “Company Releasing
Parties”) hereby irrevocably and unconditionally forever release, remise,
acquit and discharge each Claimant and their respective present, former or
future agents, representatives, employees, independent contractors, directors,
shareholders, officers, attorneys, insurers, subsidiaries, divisions, parents,
assigns, affiliates, predecessors and successors (collectively, the “Company Released Parties”)
from and against any and all debts, obligations, losses, costs, promises,
covenants, agreements, contracts, endorsements, bonds, controversies, suits,
actions, causes of action, misrepresentations, defamatory statements, tortuous
conduct, acts or omissions, rights, obligations, liabilities, judgments,
damages, expenses, claims, counterclaims, cross-claims, or demands, in law or
equity, asserted or unasserted, express or implied, foreseen or unforeseen, real
or imaginary, alleged or actual, suspected or unsuspected, known or unknown,
liquidated or non-liquidated, of any kind or nature or description whatsoever,
arising from the beginning of the world through the date of this Agreement which
each of the Company Releasing Parties ever had, presently have, may have, or
claim or assert to have, or hereafter have, may have, or claim or assert to
have, against any of the Company Released Parties (the “Company Released Claims”).
This release shall not affect the rights of the Company under this Agreement or
the Certificate of Designation Establishing Series B Preferred Stock of the
Company.
4.3 The
Parties acknowledge and understand that hereafter they may discover or
appreciate claims, facts, issues or concerns in addition to or different from
those that they now know or believe to exist with respect to the subject matter
of this Agreement that, if known or suspected at the time of execution of this
Agreement, might have materially affected the settlement embodied
herein. The Parties nevertheless agree that the general releases and
waivers described in Paragraphs 4.1 and 4.2 above apply to any such additional
or different claims, facts, issues or concerns. The Parties
acknowledge that this release is intended to be very broad and is a critical
element of the Parties’ settlement.
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4.4 It
is the intention of the Parties that the foregoing general releases shall be
effective for use as a protective bar to all Xxxxxx Released Claims and Company
Released Claims and shall terminate all of the Parties’ rights, duties and
obligations, if any, under any agreement between any Xxxxxx Party, on the one
hand, and the Company on the other hand. In furtherance, and not in
limitation of such intention, the general release provided for herein shall be,
and shall remain in effect, as a full and complete release, notwithstanding the
later discovery or existence of any additional or different facts or claims,
without limitation.
4.5 The
Parties acknowledge that they have been advised by their respective attorneys
and are familiar with and understand the provisions of California Civil Code
Section 1542 as well as all provisions of federal law, and Nevada state law, if
any, that may provide any right or benefit that is similar in any material
respect to California Civil Code Section 1542, 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.
4.6 The
Parties hereby voluntarily and expressly waive and relinquish each and every
right or benefit which they may have under California Civil Code Section 1542
and all provisions of federal law and Nevada state law, if any, that may provide
any right or benefit that is similar in any material respect to the rights and
benefits afforded under California Civil Code Section 1542, to the full extent
that they may lawfully waive such rights. The Parties acknowledge
that they may hereafter discover facts in addition to or different from those
which they presently know or believe to be true regarding the subject matter of
the dispute and the other matters herein released, but agree that they have
taken that possibility into account and that it is their intention hereby to
fully, finally and forever settle and release the matters, disputes and
differences, now known or unknown, suspected or unsuspected, arising out of or
in any way relating to the matters released pursuant to this Agreement, and to
terminate any and all rights, duties and obligations of the Parties under the
Reorganization Agreement.
4.7 The
Parties hereto acknowledge that they expressly understand that this Agreement
and the settlement it represents (a) is entered into solely for the purpose of
avoiding any possible future expenses, burdens or distractions of litigation 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 on the part of any of the
Xxxxxx Released Parties or any of the Company Released Parties. In
this connection, the Parties specifically deny any 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 the claims, counterclaims, and defenses set forth in
the Action, including, but not limited to, any violation of any federal or state
law (whether statutory or common law), rule or regulation, and the Parties deny
that a violation of any such law, rule or regulation has ever
occurred.
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Section
5. Trading
Resrictions.
5.1 Each
Xxxxxx Party together with its affiliates shall not, in the aggregate, make any
Net Sales (as defined below) of Common Stock held by it on any single day during
such period, a number of shares of Common Stock in excess of 2.5% of the ten day
average daily trading volume of the Common Stock (as reported by Bloomberg
Financial Markets (or any successor thereto)) on each day immediately preceding
such sale. “Net Sales” means, with respect to any date of
determination, the difference of (A) the number of shares of Common Stock sold,
including by way of short sales, or otherwise transferred or disposed of,
directly or indirectly, on such date of determination by the Xxxxxx Party and
their affiliates minus (B) the number of shares of Common Stock purchased,
directly or indirectly, on such date of determination by such Xxxxxx Party and
its affiliates.
5.2 Each
Xxxxxx Party agrees that it will not sell any Conversion Shares at the
then-existing “bid” price for the Company’s common stock, as reported on OTC
Bulletin Board or on such subsequent market on which the shares of Common Stock
are then listed or quoted.
5.3 Each
Xxxxxx Party agrees to utilize a brokerage firm satisfactory to the Company to
effect and process all Share conversions and all sales of Conversion Shares and
each Xxxxxx Party understands that no Share conversions will be allowed until
such brokerage firm acceptable to the Company has been
retained. Firms satisfactory to the Company include Xxxxxxxxxxx &
Co., 000 Xxxxxxx Xxxxxxxxxx, Xxxxx 000, Xxxxxxx, XX 00000 and each Xxxxxx Party
agrees to open an account for the Shares (and shares of the Company’s common
stock issued upon conversion thereof) at such Brokerage firm. If for any reason
Xxxxxxxxxxx will not open an account for any of the Xxxxxx Parties or closes the
account of a Xxxxxx Party before all of the eligible Common Shares for such
Xxxxxx Party are sold, then Company will provide another Brokerage firm
acceptable to the Company within fifteen (15) days of the notice of refusal to
open an account being received by the Company from a Xxxxxx Party or receipt of
notice from a Xxxxxx Party that an existing account has been
closed.
Section
6. Miscellaneous.
6.1 Representations
and Warranties. The Parties represent and warrant that they
are the sole owner of all claims, rights, demands and causes of action that they
are relinquishing by executing this Agreement and that no other persons or
entities have any interest in such claims, rights, demands or causes of
action.
6.2 Representation
by Counsel. The Parties acknowledge that they are executing
and delivering this Agreement with full knowledge of any and all rights which
they may have with respect to the claims and causes of action herein settled and
released. The Parties acknowledge that they are represented by and have
consulted with attorneys of their own choosing to the extent desired before
executing and delivering this Agreement in order to review this document and the
claims and causes of action being settled and released hereby and thereby, and
that they have had a reasonable and sufficient opportunity to do
so.
6.3 Binding
Effect of Agreement. This Agreement shall inure to the benefit
of the Xxxxxx Released Parties and the Company Released Parties, and shall be
binding upon the Xxxxxx Releasing Parties, the Company Releasing Parties, and
their respective heirs, administrators, executors, representatives, attorneys,
agents, predecessors in interest (if any), successors, affiliates, assigns and
beneficiaries.
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6.4 Expenses
and Fees. Each Party shall bear its own attorney’s fees, costs
and expenses, and consultants, advisors and experts’ fees, costs and expenses,
arising or relating to the Action and the negotiation, execution and delivery of
this Agreement. The Parties expressly agree to waive all statutory,
contractual and/or common law rights to recover any attorney’s fees, costs and
expenses, and consultants, advisors and experts’ fees, costs and expenses,
arising or relating to the Arbitration and the negotiation, execution and
delivery of this Agreement.
6.5 Governing
Law. The Parties agree that the validity, effect and
construction of this Agreement as well as any rights, duties and obligations
thereunder, and any disputes concerning any of the provisions of this Agreement
or over the negotiation or execution thereof, shall be interpreted under,
governed by and construed in accordance with the laws of the State of California
without regard to conflict of laws provisions.
6.6 Dispute
Resolution. Any and all disputes between any of the Parties
concerning any of the provisions of this Agreement or the rights, duties and
obligations hereunder shall be exclusively resolved in an action or proceeding
brought against in the Superior State of California for the County of Los
Angeles which shall retain jurisdiction to enforce this Settlement Agreement
pursuant to California Code of Civil Procedure Section 664. Each of
the parties hereby consents to the exclusive jurisdiction of such courts (and of
the appropriate appellate courts) in any such action or proceeding and waives
any objection to venue laid therein. The parties hereto each waive
any claim that such jurisdiction is not a convenient forum for any such action;
provided, however, that each party reserves the right to seek to remove the
action or proceeding from the state court to the federal court in such
jurisdiction or vice
versa. Each party waives the right to a jury
trial. The prevailing party in any proceeding instituted to resolve
any dispute between any of the Parties arising out of or relating to this
Agreement shall be entitled, in addition to any award rendered, to all
reasonable attorneys’ fees, costs and expenses incurred in connection with any
such proceeding.
6.7 Additional
Documents. The Parties and their counsel agree to execute all
further and additional documents and to take such other acts necessary under the
circumstances to accomplish the purposes set forth in this
Agreement.
6.8 Entire
Agreement; Amendments. This Agreement, the exhibits hereto,
the documents referenced herein and the exhibits thereto, constitute the entire
understanding and agreement of the Parties with respect to the subject matter
hereof and thereof and supersede all prior and contemporaneous agreements or
understandings, inducements or conditions, express or implied, written or oral,
between the parties with respect hereto and thereto. This Agreement
may be amended, altered, modified or waived, in whole or in part, only in a
writing executed by all the Parties to this Agreement. This Agreement
may not be amended, altered, modified or waived, in whole or in part,
orally.
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6.9 Severability. In
the event that any one or more of the provisions contained in this Agreement
shall, for any reason, be declared in a legal forum to be invalid, illegal,
ineffective or unenforceable in any respect, such invalidity, illegality,
ineffectiveness or unenforceability shall not affect any other provision of this
Agreement, which Agreement shall remain in full force and effect, valid and
binding upon the Parties, and each of the provisions of this Agreement shall be
enforceable independently of any other provision of this Agreement and
independently of any other claim or cause of action.
6.10 Execution
in Counterparts. This Agreement may be executed in several
counterparts, each of which shall be considered to be an original or total copy
of the Agreement. The Agreement shall become effective only upon its execution
by all Parties hereto. A facsimile copy of said signatures of all of
the Parties will be sufficient to make this Agreement binding on all
Parties.
6.11 Non-Waiver. The
failure of any Party to insist upon strict adherence to any term of this
Agreement on any occasion shall not be considered a waiver thereof or deprive
that Party of the right thereafter to insist upon strict adherence to that term
or any other term of this Agreement.
6.12 Titles. The
titles of the Sections of this Agreement are inserted for convenience only and
shall not affect the meaning or construction of any of the terms of this
Agreement.
6.13 Acknowledgment. The
Parties acknowledge that they have read this Agreement and that they fully know,
understand, and appreciate its contents and that they have executed the same and
make the settlement and release provided for herein voluntarily and of their own
free will
6.14 Authority
of Company Signatory.
The signatory for the Company represents and warrants to the Xxxxxx
Parties that he is executing this Agreement on behalf of the Company as a result
of all required corporate actions being taken by the Company to authorize and
approve this Agreement.
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IN WITNESS WHEREOF, the
Parties hereto, intending to be legally bound, have each executed this Agreement
on the dates set forth below.
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XXXXXX
XXXXXX
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SOCK:
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XXXXXX
X. SOCK
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XXXXXXXXXX:
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XXX
XXXXXXXXXX
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XXXXXX
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XXXXXX,
KENEGOS & KADIN
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By:
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Xxxxx
Xxxxxx, General Partner
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COMPANY:
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Xxxxx
Xxxxxxx,
President
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