GENERAL RELEASE AND SETTLEMENT AGREEMENT
Exhibit
9.1
THIS
GENERAL RELEASE AND SETTLEMENT
AGREEMENT (this “Agreement”) is dated as of April 17, 2008, by and between Total
Look, BV (“Total Look”), London Finance Group, Ltd., a California corporation
(“LFG”), Dojo Enterprises, LLC, a Nevada limited liability company (“Dojo”),
Hyperion Fund, L.P., a Colorado limited partnership (“Hyperion”), The Palisades
Capital, LLC 401(k) Profit Sharing Trust (“Palisades”), The Morpheus 2005 Trust
dated December 0, 0000 (“Xxxxxxxx”), Xxxxxx Partners, LLC (“Xxxxxx”), Picasso,
LLC (“Picasso”) and Glacier, LLC (“Glacier,” and, together with Total Look, LFG,
Dojo, Hyperion, Palisades, Morpheus, Xxxxxx and Picasso, the “Preferred
Shareholders”), or their respective assignees and GenMed Holding Corp., a Nevada
corporation (the “Company”).
Recitals
WHEREAS,
the Preferred Shareholders collectively hold 2,179,533 shares of the Company’s
Class A Convertible Preferred Stock (the “Preferred Stock”);
WHEREAS,
the Company has requested that the Preferred Shareholders exchange their
Preferred Stock for Seventy-Five Million (75,000,000) shares of the Company’s
common stock and Thirty-Nine Million (39,000,000) $0.10 warrants to purchase
common stock, and the Preferred Shareholders have agreed to such transaction;
and
WHEREAS,
Total Look, the Preferred Shareholders and the Company now desire to execute
this Agreement to settle all accounts and disputes as provided herein to avoid
the expense and delay of litigation.
Agreement
NOW,
THEREFORE, in consideration of the mutual promises and agreements herein
contained, the parties hereby agree as follows:
| 1. |
Releases
|
(a) Company,
for itself and its past, present and future administrators, affiliates, agents,
assigns, attorneys, directors, employees, executors, heirs, insurers, officers,
managers, parents, partners, predecessors, representatives, servants,
shareholders, subpartners, subsidiaries, successors, transferees, underwriters,
clients, customers, and all persons acting by, through, under or in concert
with
any of them, and each of them, hereby releases and discharges (i) each Preferred
Shareholder and each of their respective past, present and future
administrators, affiliates, agents, assigns, attorneys, directors, employees,
executors, heirs, insurers, officers, managers, parents, partners, predecessors,
representatives, servants, shareholders, subpartners, subsidiaries, successors,
transferees, underwriters, clients and customers and each of them; and (ii)
each
of their respective past, present and future administrators, affiliates, agents,
assigns, attorneys, directors, employees, executors, heirs, insurers, officers,
managers, parents, partners, predecessors, representatives, servants,
shareholders, subpartners, subsidiaries, successors, transferees, underwriters,
clients and customers, and each of them; and (iii) all persons acting by,
through, under or in concert with any of them, of and from any and all actions,
causes of action (including causes of action for tortious conduct, fraud,
fraudulent inducement or otherwise), claims, costs, damages, debts, demands,
expenses, liabilities, losses and obligations of every nature, character and
description, known or unknown, suspected or unsuspected, actual or contingent,
which the releasing party now owns or holds, or has at any time heretofore
owned
or held, or may at any time hereafter own or hold, by reason of any matter,
cause or thing whatsoever incurred, done, omitted or suffered to be done arising
out of, or which may hereafter be claimed to arise out of, related to or in
any
way directly or indirectly connected with any fact, circumstance or event
existing on or prior to the date hereof (all such released or discharged items,
collectively, “Released Claims”).
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| 2. |
Conversion
and Exchange of Preferred Stock.
|
The
Company hereby agrees to cancel all outstanding shares of its Class A Preferred
Stock, and shall issue to the Preferred Shareholders Seventy-Five Million
(75,000,000) shares of its common stock, and warrants to purchase Thirty-Nine
Million (39,000,000) shares of common stock of the Company at a purchase price
of $0.10 per share. The common stock and warrants shall be issued pro-rata
in
proportion to the number of shares of Preferred Stock held by each Preferred
Shareholder.
| 3. |
Representations
and Covenants
|
(a) Each
of
the Parties acknowledges that there is a risk that subsequent to the execution
of this Agreement, one or more Parties will incur or suffer loss, damages or
injuries which are in some way caused by or related to the Released Claims,
but
which are unknown and unanticipated at the time this Agreement is signed. All
parties do hereby assume the above-mentioned risk and understand that this
Agreement SHALL APPLY TO ALL UNKNOWN OR UNANTICIPATED RESULTS OF THE
TRANSACTIONS AND OCCURRENCES DESCRIBED ABOVE, AS WELL AS THOSE KNOWN AND
ANTICIPATED, each of the Parties acknowledges in executing the releases (the
“Releases”) contained in this Agreement, that each does so with full knowledge
of any and all rights and benefits that each might otherwise have had under
California Civil Code Section 1542, and each, upon the advice of counsel, hereby
waives and relinquishes any and all such rights and benefits. Each of the
Parties acknowledges and agrees that this waiver is an essential and material
term hereof, without which this Agreement (including, without limitation, the
Releases) would not have been entered into. Section 1542 reads 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 certifies that it has read the foregoing recitation of Section
1542
and understands the meaning of such section and such fact is indicated by the
signing of such Party’s initials hereto:
_____________
Company's
Initials
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Each
of
the Parties further acknowledges that each may hereafter discover facts
different from or in addition to those known or believed to be true with respect
to the Released Claims. Each of the Parties agrees that the Releases shall
be
and shall remain effective in all respects, notwithstanding any such different
or additional facts, or any facts which are intentionally concealed from either
party by the other. In this regard, and without limitation, each of the Parties
declares that it realizes that it may have damages it presently knows nothing
about and that, as to them, they have been released pursuant to the Releases.
Each of the Parties further declares that it understands that the parties being
released would not have agreed to compromise their respective claims if the
Releases did not cover damages and their results which may not yet have
manifested themselves or which may be unknown or not anticipated at the present
time.
(b) The
Releases shall not be deemed an admission by any of the Parties of any sort.
No
right shall inure to any third party (other than third parties described in
subparagraphs (a) or (b) above) from the obligations, representations and
agreements made or reflected herein.
(c) Each
of
the Parties represents and warrants that it alone is the owner of the Released
Claims, that it has not heretofore assigned or transferred, nor purported to
assign or transfer to any third party, and is not aware of any third party,
who
might assert some interest in any of the Released Claims. Each Party further
agrees to indemnify, defend and hold harmless the other from all liability,
claims, demands, damages, costs, expenses and attorneys’ fees incurred by the
other Party as a result of any third party asserting any such assignment or
transfer of any such interest, right or claim.
(d) Each
of
the Parties represents and warrants that none of the Released Claims is subject
to any purported or actual lien, security interest, encumbrance or other
contractual right of any third party. Each Party further agrees to indemnify,
defend and hold harmless the other from all liability, claims, demands, damages,
costs, expenses and attorneys’ fees incurred by the other Party as a result of
any third party asserting the existence of any of the foregoing.
(e) Each
of
the Parties acknowledges that it has read this Agreement, has been, or has
had
the opportunity to be, represented by independent counsel of their own choice
in
connection with the circumstances leading up to the execution of the Releases,
understands the terms, conditions and consequences of the Releases, and is
freely and voluntarily entering into the Releases.
4. By
execution of this Release, each releasing party represents and warrants to
the
released party that no Claim that he, she or it has, had, might have or might
have had in the past against any person or entity released hereby, has
previously been conveyed, assigned, or in any manner transferred, in whole
or in
part, to any third party. Each releasing party expressly represents and warrants
to the other that he, she or it has full authority to enter into this Release
and to release any and all Claims he, she or it now has, had, might have or
might have had in the past against each person or entity released
hereby.
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5. It
is
expressly understood and agreed that the terms of this Agreement are contractual
and not merely recitations and that the agreements herein contained are to
compromise doubtful and disputed Claims, avoid litigation, and buy peace and
that no releases or other consideration given shall be construed as an admission
of liability, all liability being expressly denied by each released party
hereto.
6. It
is
further understood and agreed that this Agreement contains the entire agreement
between the parties and supersedes any and all prior agreements, arrangements,
or understandings between the parties relating to the subject matter hereof.
No
oral understandings, statements, representations, warranties, promises, or
inducements contrary to the terms of this Agreement or otherwise not contained
in this Agreement exist. This Agreement cannot be changed or terminated except
in writing signed by all parties hereto. The
rights, duties and obligations of the Parties under this Agreement shall operate
independently of any other relationship, contractual or otherwise, between
the
Parties.
7. This
Agreement shall be construed in all respects in accordance with the internal
laws of the State of California applicable to agreements made and to be
performed entirely within California. Any dispute which relates to the subject
matter hereof, or arises herefrom, shall be resolved in Santa Monica,
California.
8. By
execution of this Agreement, each Releasor warrants and represents that he
understands that this is a full, final, and complete settlement with each party
released hereby of all known and unknown Claims. The
Releases are not conditioned upon the occurrence or nonoccurrence of any event
or the granting of any consent or approval or related to or dependent upon
any
other event or any agreement or business transaction between the
Parties.
9. This
Agreement shall be binding upon and shall inure to the benefit of the Parties
and their respective heirs, successors, representatives, assigns, affiliates,
agents, shareholders, directors, employees and attorneys, past and present,
and
each of them.
10. If
any
provision of this Agreement is held invalid or unenforceable by any court of
competent jurisdiction, the other provisions of this Agreement will remain
in
full force and effect. Any provision of this Agreement held invalid or
unenforceable only in part or degree will remain in full force and effect to
the
extent not held invalid or unenforceable. This Agreement and all transactions
contemplated hereby shall be governed by, construed and enforced in accordance
with the laws of the State of California. THE
PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT
OF
OR RELATING TO THIS AGREEMENT OR ANY OF THE CONTEMPLATED TRANSACTIONS, WHETHER
NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE. THE PARTIES AGREE THAT ANY OF THEM MAY FILE A COPY OF THIS PARAGRAPH
WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR
AGREEMENT AMONG THE PARTIES IRREVOCABLY TO WAIVE TRIAL BY JURY AND THAT ANY
PROCEEDING WHATSOEVER BETWEEN THEM RELATING TO THIS AGREEMENT OR ANY OF THE
CONTEMPLATED TRANSACTIONS SHALL INSTEAD BE TRIED IN A COURT OF COMPETENT
JURISDICTION BY A JUDGE SITTING WITHOUT A JURY. The parties agree
to
submit to the personal jurisdiction and venue of a court of subject matter
jurisdiction located in the State of California, city of Santa
Xxxxxx.
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11. This
Agreement may be signed in one or more counterparts, each of which shall
constitute an original but all of which, when taken together, shall constitute
one and the same agreement. If this Agreement is executed in counterparts,
then
each Party shall execute sufficient counterpart signature pages for each Party,
ultimately, to be provided with an originally executed counterpart signature
page from each Party.
12. Each
gender shall include the other genders whenever the context may require in
this
Agreement.
13. Each
of
the individuals whose signature appears below hereby represents and warrants
that he or she has actual authority to enter into this Agreement on behalf
of
the entity on whose behalf he or she signs this Agreement and does so to the
fullest extent of his or her authority, whether as an individual, officer,
director, shareholder, partner, joint venturer or otherwise.
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the undersigned have set their hands hereunto as of the dates
set forth beneath the undersigned's respective signatures below.
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By: /s/Xxx
Piceni
Name:
Xxx Piceni
Title:
CEO
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|
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TOTAL
LOOK BV
By: /s/
G.M.W. Xxxxx
Name:
G.M.W. Xxxxx
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London
Finance Group, Ltd.
By:
/s/ Signature on file
Name:
Title:
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London
Finance Group, Ltd.
By:
/s/ Signature on file
Name:
Title:
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Dojo
Enterprises, LLC
By:
/s/ Signature on file
Name:
Title:
|
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Hyperion
Fund, L.P.
By:
/s/ Signature on file
Name:
Title:
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Palisades
Capital, LLC 401(k) Profit Sharing Trust
By:
/s/ Signature on file
Name:
Title:
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Morpheus
2005 Trust dated 12/1/05
By:
/s/ Signature on file
Name:
Title:
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Xxxxxx
Partners, LLC
By:
/s/ Signature on file
Name:
Title:
|
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Picasso,
LLC
By:
/s/ Signature on file
Name:
Title:
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Glacier,
LLC
By:
/s/ Signature on file
Name:
Title:
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