MUTUAL COMPROMISE SETTLEMENT AGREEMENT AND GENERAL RELEASE OF CLAIMS
Exhibit
10.16
AND
GENERAL RELEASE OF CLAIMS
The
parties (individually, a "Party" and collectively, the "Parties") to this Mutual
Compromise Settlement Agreement and General Release of Claims are: AmeriPlan
Corporation, The Amacore Group, Inc., Zurvita, Inc., TransMark Financial
Services, Inc. and Xxxx Xxxxxx.
Definitions:
"AmeriPlan"
means AmeriPlan Corporation, a Texas corporation, with its principle office
located at 0000 Xxxxxxxxx Xxxxx, Xxxxx, XX 00000 and its principals, officers,
directors, managers, shareholders, employees, contractors, attorneys, agents,
representatives, subsidiaries, parents, assigns, successors, and affiliated or
associated entities of what ever kind.
"Amacore"
means The Amacore Group, Inc., a Delaware corporation with its principal office
located at 000 Xxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, XX 00000 and its
principals, officers, directors, managers, shareholders, employees, contractors,
attorneys, agents, representatives, subsidiaries, parents, assigns, successors,
and affiliated or associated entities of what ever kind.
"Zurvita"
means Zurvita, Inc., a Delaware corporation, with its principal office located
at 0000 Xxxx Xxxxxxx, Xxxxxxx, XX 00000, and its principals, officers,
directors, managers, shareholders, employees, contractors, attorneys, agents,
representatives, subsidiaries, parents, assigns, successors, and affiliated or
associated entities of what ever kind.
"TransMark"
means TransMark Financial Services, Inc., a Texas corporation, with its
principle office located at 0000 Xxxxxxxxx Xxxxx, Xxxxx, XX 00000 and its
principals, officers, directors, managers, shareholders, employees, contractors,
attorneys, agents, representatives, subsidiaries, parents, assigns, successors,
and affiliated or associated entities of what ever kind.
"X.
Xxxxxx" means Xxxx Xxxxxx, 0 Xxxxxxx Xxxxx, Xxxxxxx, XX 00000,
"Settlement
Agreement" means this Mutual Compromise Settlement Agreement and General
Release.
"Effective
Date" means as to each Party the date of their/its execution of this Settlement
Agreement.
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Litigation By and Among the
Parties:
Xxxx Xxxxxx and Zurvita, Inc. vs.
AmeriPlan Corporation v. Xxxx Xxxxxxx v The Amacore Group, Inc., Xxxxx Xxxx,
Xxxxx Xxxx, Xxxx Xxxxxx-Xxxxx and Xxxx Xxxxx, 000xx
Xxxxxxxx Xxxxxxxx Xxxxx, Xxxxxx Xxxxxx, Xxxxx; Cause No.
DC-08-01101-K.
Transmark Financial Services, Inc.,
v. Xxxx Xxxxxx d/b/a Trans National Services, Inc. (FEIN #98-XXXXX64), OR
TRANSNATIONAL SERVICES GROUP, INC. (FEIN # 76- XXXXX78),OR TRANS, INC., (FEIN #
00-0000000), ET AL, 000xx
Xxxxxxxx Xxxxxxxx Xxxxx, Xxxxxx Xxxxxx, Xxxxx; Cause No.
000-00000-0000.
Scope of
Settlement:
The
Parties desire to enter into this Mutual Compromise and Settlement Agreement in
order to avoid further trouble, expense and litigation and to discharge all
claims, counter-claims and causes of action, known or unknown, including,
without limitation, the allegations set forth in the litigation described above
and the related litigation in Dallas and Collin Counties, Texas involving Joel
Marius, Xxxxx XxXxxxxx, Xxxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxx Xxxxx, Xxxx Xxxxxxx,
Xxxxxxxx Xxxxxxx, Xxxxxxxx Xxxxxx, Xxxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxx Xxxxxx,
Xxxxxx Xxxxxxxxx, Xxxxx Xxxxxxxxx, Xxxxxx Xxxx, Xxxxxxx Xxxxxx, Xxxxx
Xxxxxxxxxxxx, Xxxxx Xxxxxxx, Xxxxxxxx Xxxxxx, Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxx,
Xxxxxx Xxxxx, Xxxxxx Xxxxxxxx, Xxxxxxx Xxxxxx, Xxxxxxxx Xxxxx, Xxxxxx Xxxxxx,
Xxxxx Xxx, Xxxx Xxxxxx, and Xxxxx Xxxxxx.
The
Parties intend that the full terms and conditions of the compromise and
settlement be set forth in this Settlement Agreement.
NOW, THEREFORE, for good an
valuable consideration, the sufficiency of which is hereby acknowledged, the
Parties agree as follows:
1. Each
Party warrants and represents that they have the power and authority to enter
into this Settlement
Agreement and that this Settlement Agreement is valid, binding and enforceable
upon each.
2. Each
Party warrants and represents that it owns or controls the claim or claims
asserted or released in this Settlement Agreement and that no part of the claim
or claims have been assigned or transferred to any other person or
entity.
Settlement Terms:
3. Amacore
and Zurvita shall, upon execution of this Settlement Agreement, deliver to
AmeriPlan, ONE MILLION ONE HUNDRED FIFTY THOUSAND DOLLARS ($1,150,000.00), by
wire transfer.
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4. Zurvita
shall, on or before 2:00 PM EDT, Friday, June 19, 2009 execute this Settlement
Agreement and (as the "Debtor") deliver a promissory note to AmeriPlan (the
"Creditor") in the principal amount of SIX HUNDRED THOUSAND DOLLARS
($600,000.00) bearing interest at the rate of 7.5% per annum, payable in 24
monthly installments of Twenty Six Thousand Nine Hundred Ninety-Nine and 76/100
Dollars ($26,999.76) beginning July 1, 2009, and each month thereafter until
paid in full. The form of promissory note is attached as Exhibit "A" and
incorporated herein.
5. Amacore
shall, execute this Settlement Agreement and deliver a corporate guarantee of
the Zurvita promissory note to AmeriPlan in the form attached hereto as Exhibit
"B" and incorporated herein.
6. AmeriPlan
and TransMark shall, upon delivery and acceptance of the consideration, dismiss
or cause to have dismissed the claims and counter-claims in the above-styled and
numbered causes described, with prejudice.
7. The
Amacore Group, Inc., Zurvita, Inc. and Xxxx Xxxxxx shall, upon execution of this
Settlement Agreement, dismiss or cause to have dismissed the claims and
counter-claims in the above-styled and numbered cause, with
prejudice.
8. The
Amacore Group, Inc., Zurvita, Inc. and Xxxx Xxxxxx covenant and agree that
neither of them shall not use any confidential or proprietary information of
AmeriPlan to knowingly solicit or knowing attempt to solicit any of the members
or independent business owners of AmeriPlan for the benefit of any other person,
firm, or corporation (the "Prohibited Activities").
9. The
Amacore Group, Inc., Zurvita, Inc. and Xxxx Xxxxxx agree that AmeriPlan may
have, in addition to any other remedies available at law, an injunction
restraining an alleged breach of the Prohibited Activities against the party
alleged to have breached the terms of the Prohibited Activities, and that a
temporary restraining order may be issued, upon sworn application made by
AmeriPlan setting forth the facts constituting any such alleged Prohibited
Activities.
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10. On the Effective Date each of
AmeriPlan, The Amacore Group, Inc., Zurvita, Inc. and Xxxx Xxxxxx, releases and
forever discharges each Party from any and all claims, demands, and causes of
action, known or unknown, of whatever kind or character, that each of them has or
may have against any of the Parties based in whole or in part on any
events that have occurred prior to their/its Effective Date of this Settlement
Agreement and all claims, demands, and causes of action that arise out of or are
connected in any way with the allegations stated in the litigation matters set
forth above.
11. This
release is to be construed as the broadest type of general release. To the
extent that any claims or causes of action have not been released by this
Settlement Agreement, AmeriPlan, The Amacore Group, Inc., Zurvita, Inc. and Xxxx
Xxxxxx, hereby assign those claims or causes of action to the Parties
generally.
12. The
following claims shall be excepted from the foregoing Release:
12.1 Any
claim for breach of this Settlement Agreement; or
12.2 Any
claim a Party would otherwise have under this Settlement Agreement or applicable
law for indemnification from the other against a third party claim, where such
third party claim is made subsequent to the Effective Date.
13. The
Parties understand and agree that in making this settlement, the acceptance by
the Parties of the consideration stated is in full accord and satisfaction of
all disputed claims and the delivery of the consideration is not now, nor at any
time in the future, to be construed as an admission of liability by any Party,
all of which has been expressly denied and vigorously contested .
14. The
Parties further agree that there are no understandings, oral or otherwise as to
the terms of settlement, except as set forth in this Agreement, and that upon
execution of this Agreement, no Party is entitled to rely on any promise,
inducement, assurance or expectation unless it is contained herein in
writing.
15. The
Parties understand and agree that in making this settlement, the acceptance by
the Parties of the consideration stated is in full accord and satisfaction of
all disputed claims and the delivery of the consideration is not now, nor at any
time in the future, to be construed as an admission of liability by any Party,
all of which has been expressly denied and vigorously contested .
16. The
Parties each warrant and represent that they have not disclosed the fact of
settlement negotiations, terms or content of settlement negotiation, the terms
of settlement, existence of settlement or any other information regarding the
negotiations or settlement to any third parties.
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Confidentiality:
17. As
further consideration for the actions undertaken by the Parties and as an
essential part of this Settlement Agreement, the Parties each agree to keep the
terms of this Settlement Agreement in absolute confidence, and promise that they
and all persons or entities subject to their control or influence, except for
the fact that a settlement agreement has been reached, shall not disclose or
communicate the terms of settlement, or information about the negotiations or
settlement to any person or entity at any time, except to the extent that
disclosure is required by law or is reasonably necessary to enforce the terms
hereof; and, that the performance of the Parties is conditioned upon strict
honoring of this confidentiality provision.
Indemnification:
18. Amacore,
Zurvita and X. Xxxxxx shall be responsible for the performance of Xxxx Xxxxxxx,
Xxxxx Xxxx, Xxxxx Xxxx, Xxxx Xxxxxx-Xxxxx, Xxxx Xxxxx, Xxxx Marius, Xxxxx
XxXxxxxx, Xxxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxx Xxxxx, Xxxx Xxxxxxx, Xxxxxxxx
Xxxxxxx, Xxxxxxxx Xxxxxx, Xxxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxx Xxxxxx, Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxxx, Xxxxxx Xxxx, Xxxxxxx Xxxxxx, Xxxxx Xxxxxxxxxxxx,
Xxxxx Xxxxxxx, Xxxxxxxx Xxxxxx, Xxxxxxxxx Xxxxxxx, Xxxxxx Xxxxx, Xxxxxx Xxxxx,
Xxxxxx Xxxxxxxx, Xxxxxxx Xxxxxx, Xxxxxxxx Xxxxx, Xxxxxx Xxxxxx, Xxxxx Xxx, Xxxx
Xxxxxx, and Xxxxx Xxxxxx, (the "Other Parties") in connection with the execution
their individual Settlement Agreements. In the event one or more of the Other
Parties fails or refuses to execute their Settlement Agreement, Amacore, Zurvita
and X. Xxxxxx hereby agree to indemnify, defend and save AmeriPlan harmless of
and from any and all claims, demands, losses, expenses, attorney fees, causes of
action, judgments, damages, and liability which are brought or may be brought by
the Other Parties (or anyone claiming by, through or under them).
Administrative
Provisions:
19. This
Settlement Agreement shall be governed by, and construed and enforced in
accordance with the laws of the State of Texas.
20. In the
event of breach of this Settlement Agreement by one party, not withstanding
anything in this Settlement Agreement to the contrary, the other party may bring
legal action in a court of competent jurisdiction to enforce the terms of this
Settlement Agreement. The prevailing party in any such action shall be entitled
to recover all reasonable costs and expenses incurred in connection with such
action, including reasonable attorney's fees.
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22. If any
provision of this Settlement Agreement not essential to the purpose and
intention of the parties is or may be held by a court having jurisdiction to be
invalid, void or unenforceable, the remaining provisions shall survive and
continue in full force and effect.
23. This
Settlement Agreement shall have no term and shall be binding on the Parties and
their successors and assigns, and shall inure to the benefit of the Parties and
their successors and assigns.
24. This
Settlement Agreement represents the entire agreement among the Parties and
supersedes all prior written or oral agreement respecting the subject matter of
this Settlement Agreement.
25. This
Settlement Agreement may not be amended, altered, modified or changed in any way
except in writing signed by all Parties.
26. This
Settlement Agreement may be executed in multiple originals.
SIGNED
effective as of the date opposite each entity and/or person's
signature.
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AMERIPLAN:
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AmeriPlan
Corporation
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/s/
Xxxxxx Xxxxx
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Date: 7/7/2009
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Xxxxxx
Xxxxx,
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Chief
Executive Officer
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AMACORE:
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/s/
Xxx
Xxxxxx
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Date: 7/9/2009
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Xxx
Xxxxxx,
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Chief
Executive Officer
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ZURVITA:
Zurvita, Inc.
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/s/
Xxxx
Xxxxxx
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Date 7/9/
2009
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Xxxx
Xxxxxx, President
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TRANSMARK:
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TransMark
Financial Services, Inc.
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/s/
Xxxxxx
Xxxxx
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Date: 7/7/2009
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Xxxxxx
Xxxxx, President
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/s/
X.
Xxxxxx
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Date 7/9/
2009
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Xxxx
Xxxxxx
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