SETTLEMENT AGREEMENT
This Settlement Agreement and Mutual General Release is entered into,
effective as of February 28, 2002 (the "Effective Date"), by and between W.
XXXXX XXXXX ("XXXXX"), STUNNER CORPORATION, a California corporation
("STUNNER"), U.S. CANCER MANAGEMENT CORPORATION, a Delaware corporation
("USCMC"), (all hereinafter sometimes referred to as "Defendants"), and the
USCMC-USCC Partnership, on the one hand, and U.S. CANCER CARE, INC., a Delaware
corporation ("USCC") and ONCURE TECHNOLOGIES CORP., a Florida corporation
("ONCURE"), (hereinafter sometimes jointly referred to as "Cross-Defendants"),
on the other hand.
WHEREAS, USCC has filed a Complaint in Alameda County Superior Court,
entitled U.S. Cancer Care, Inc. vs. Xxxx X. Xxxxx, et al., action number
2001-028350 and,
WHEREAS, Defendants have filed a Cross-Complaint in that same action,
entitled Xxxxx Xxxxx, et al. vs. U.S. Cancer Care, Inc., et al.,
WHEREAS, the parties now desire to settle and resolve all disputes that
exist between and among them that are connected to, arise out of or are related
to any of the claims referenced in the said litigation,
NOW THEREFORE, the parties hereby agree as follows: Contemporaneously
with the execution of this Settlement Agreement and Mutual General Release by
all parties:
1. X. XXXXX shall deliver to ONCURE 642,833 shares of ONCURE stock
that he currently owns in his name, free and clear from any
liens, claims, or encumbrances of any nature whatsoever,
together with a duly executed Stock Power transferring said
shares to ONCURE.
B. ONCURE shall pay to XXXXX in cash the sum of Thirty-One
Thousand One-Hundred Twenty Dollars ($31,120.00).
C. There is currently an outstanding invoice from Xxxxxxx Xxxx,
PhD Physicist, to ONCURE for $32,780.00 (the "Xxxx Invoice").
A copy of the Xxxx Invoice is attached hereto as Exhibit A.
Contemporaneously with the execution of this Settlement
Agreement and Mutual General Release by all parties, ONCURE
shall pay one-half of the Xxxx Invoice (Sixteen Thousand Three
Hundred Ninety Dollars $16,390.00) directly to Xxxxxxx Xxxx,
PhD by having a check in that amount delivered to USCMC for
delivery to Xxxxxxx Xxxx, PhD. USCMC shall pay the remaining
half of the Xxxx Invoice (Sixteen Thousand Three Hundred
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Ninety Dollars $16,390.00) to Xxxxxxx Xxxx PhD, within thirty
(30) days of the Effective Date of this Settlement Agreement
and Mutual General Release.
D. USCC shall quitclaim, contribute and deliver to USCMC all the
furniture and equipment currently used by and in the
possession of USCMC at the offices leased by ONCURE at 000
Xxxxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxx Xxxxx, Xxxxxxxxxx
("ONCURE's Walnut Creek Office"), and any furniture and
equipment currently in the Ceres Warehouse, including any and
all equipment in the office previously occupied by Xxxx
XxXxxxx while he was an ONCURE employee (collectively, the
"Walnut Creek Furniture and Equipment") by means of a Xxxx of
Sale in the form attached hereto as Exhibit B.
E. Subject to the full performance of the obligations set forth
in the succeeding sentence, USCMC may occupy ONCURE's Walnut
Creek Office for as long as it, in its sole discretion,
determines, but in no event longer than twelve months
following the Effective Date of this Settlement Agreement and
Mutual General Release. In consideration for the right to
occupy ONCURE's Walnut Creek Office, beginning March 1, 2002,
USCMC shall pay ONCURE Two Thousand Five Hundred Dollars
($2,500.00) per month in rent within five (5) business days of
receiving adequate evidence that ONCURE has paid the rent to
the Landlord. ONCURE, in turn, covenants and agrees to pay the
full monthly rent owed to the landlord of ONCURE's Walnut
Creek Office in a timely manner so as to insure that USCMC may
remain in the premises pursuant to the terms of this paragraph
1E. In addition, USCMC and ONCURE will use their best efforts
to (i) find suitable alternative office space for USCMC in the
same building as ONCURE's Walnut Creek Office and (ii) secure
from the landlord a termination of ONCURE's lease for ONCURE's
Walnut Creek Office.
F. Within 15 days of the Effective Date of this Settlement
Agreement and Mutual General Release, ONCURE shall deliver to
USCMC a Letter of Credit issued from a federally chartered
bank in the amount of twenty seven thousand, one hundred
dollars ($27,100.00) to be held by USCMC as security for the
faithful performance by ONCURE of its rent payment obligations
to the landlord of the Walnut Creek Office. Provided ONCURE is
not in default of its rent payment obligations to the landlord
of the Walnut Creek Office, at the earlier of the first
anniversary of the Effective Date of this Settlement Agreement
and Mutual General Release or the termination of the lease for
ONCURE's Walnut Creek Office as contemplated in the last
sentence of the preceeding paragraph 1E, USCMC shall return
the Letter of Credit to ONCURE. If at any time during the
twelve month period following the Effective Date of this
Settlement Agreement and Mutual General Release that USCMC
occupies ONCURE's Walnut Creek Office ONCURE fails to pay its
rent obligations to the landlord where such failure to pay
continues for a period of ten (10) days after written notice
thereof
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from USCMC to ONCURE, USCMC may, provided it is not in default
of its rent obligations to ONCURE as provided in paragraph 1E
above, appropriate and apply any portion of the Letter of
Credit provided pursuant to this paragraph 1F to payment of
overdue rent to the landlord of the Walnut Creek Office.
Should ONCURE not deliver the Letter of Credit as required
herein, then this entire Agreement shall be null and void.
G. USCMC shall assume and agree to pay when due all obligations
of ONCURE arising under or in connection with that certain
Promissory Note dated August 9, 2001 issued by ONCURE to the
order of Xxxx Xxxxxxx in the original principal amount of One
Hundred Sixty Thousand Dollars ($160,000.00)(the "Xxxxxxx
Note") and provide ONCURE with a release of any liability
under the Xxxxxxx Note. A copy of the Xxxxxxx Note is attached
hereto as Exhibit C. USCMC hereby further agrees to defend and
indemnify ONCURE, and hold ONCURE harmless, from and against
any and all claims, demands, causes of action, expenses
(including, without limitation, reasonable attorneys' fees),
judgments and the like arising out of, or in connection with,
the Xxxxxxx Note.
H. Cross-Defendants shall quitclaim, transfer and deliver to
XXXXX any ownership rights they may have in the USCMC-USCC
Partnership, a California General Partnership, and execute any
and all documents requested of them to accomplish this result.
I. ONCURE shall, contemporaneously with the execution of this
Settlement Agreement and Mutual General Release, execute and
consent to an assignment agreement, in any form required by
The Permanente Medical Group, whereby The Permanente Medical
Group agrees to assign The Professional Services Agreement for
Radiology Services to USCMC.
J. The parties hereto further agree to the following release
terms:
2. MUTUAL RELEASE AGREEMENT
------------------------
For the consideration above referenced, and with the exception of the
representations, understandings, promises and obligations arising under
this Settlement Agreement and Mutual General Release, each party, being
of lawful age, on behalf of himself or itself and each party's heirs,
successors, administrators, personal representatives, executors,
assigns, agents, insurers, officers, directors, shareholders,
employees, principals, partners, servants and employees, hereby:
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A. Fully releases, acquits and forever discharges each of the
other parties to this Settlement Agreement and Mutual General
Release, including their representatives, agents, servants,
employees, heirs, successors, administrators, executors,
attorneys, co-partners, co-venturers, insurers, stockholders,
predecessors, officers, directors, shareholders, parent and
subsidiary organizations, affiliates and assigns (hereinafter
referred to as "Releasees") of and from any and all actions,
causes of action, rights, claims, demands, damages, costs,
loss of service, expenses, liabilities, attorneys' fees, and
debts whatsoever, in law or in equity, whether known or
unknown, suspected or unsuspected which each party may now
have against the Releasees based upon, related to, arising out
of, or in anyway connected with the matters alleged in, or
that could have been alleged in, that certain Complaint filed
October 23, 2001, in the Superior Court of the State of
California, County of Alameda, entitled U.S. CANCER CARE, INC.
vs. XXXX X. XXXXX, et al., and that certain Cross-Complaint
filed in the same action entitled XXXXX XXXXX et al. vs. U.S.
CANCER CARE, INC. et al., Action No. 2001-028350 (the
"Action"), including, without limitation, any facts, matters,
and circumstances alleged in those or any subsequent or prior
pleadings in the Action or any facts arising out of any
discovery in said Action and any obligations of the parties
identified in this Settlement Agreement and Mutual General
Release to refrain from competing with the other, pursuant to
any prior agreements between the parties to this Agreement.
The parties expressly understand and agree that nothing in
this Settlement Agreement and Mutual General Release,
including, but not limited to, this paragraph 2(A) is intended
to nor does it release any claims any parties hereto may have
against Xxxx X. Xxxxx, M.D. or the Oncology Corporation, a
California corporation.
As a material part of the consideration for this Mutual
General Release, each of the parties hereto, as necessary and
appropriate, shall forthwith upon this Settlement Agreement
and Mutual General Release becoming effective, as hereinafter
set forth, cause a Request for Dismissal with Prejudice, to be
filed in the Action so as to cause a dismissal with prejudice
of any and all claims or causes of action asserted against
U.S. CANCER CARE, INC., a Delaware corporation, ONCURE
TECHNOLOGIES CORP., a Florida corporation, XXXXX XXXXX,
STUNNER CORPORATION, a California corporation and U.S. CANCER
MANAGEMENT CORPORATION, a Delaware corporation.
B. Agrees to refrain and forebear from commencing, instituting or
participating in, either as a named or unnamed party, any
lawsuit, action or other proceedings against Releasees,
whether brought by any party, or by others on each party's
behalf, based on or arising out of any of the facts or
circumstances described in Paragraph 2(A) above.
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C. Agrees that no representation or promise not expressly
contained in this Settlement Agreement and Mutual General
Release has been made and further acknowledges that each party
is not entering into this Settlement Agreement and Release on
the basis of any promise or representation, express or
implied, not otherwise contained herein. This Settlement
Agreement and Release contains the entire agreement between
the parties hereto and the terms hereof are contractual and
not a mere recital. This Settlement Agreement and Release
supersedes any prior agreement and contains the entire
agreement of the parties on the matters covered. Each party
hereto has fully and personally investigated the subject
matters of this Settlement Agreement Release Agreement,
consulted such independent counselors as required, and do not
rely on any statement of fact or opinion of any other party to
this Settlement Agreement and Release.
D. Acknowledges and agrees that this Mutual General Release is a
release of all claims for injuries and damages to person
and/or property, whether such injuries and damages be known or
unknown, foreseen or unforeseen, patent or latent that each
party may have against the Releasees.
E. Acknowledges and agrees that he or it has read and fully
understands the statutory language of Section 1542 of the
Civil Code of the State of California and on that basis
expressly and specifically waives application of California
Code of Civil Code Section 1542, which 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."
F. Agrees that he or it has not, nor will in the future, assign,
hypothecate, transfer, pledge or purport to do so, in any
manner, to any entity, person, or corporation, any claim,
action, right, demand, or cause of action based on, or arising
out of or in connection with, any matter, fact or thing
described in Paragraph 1 above. The parties further agree
that, with the exception of the claims set forth in the
Complaint and Cross-Complaint in the Action, there is no
litigation pending with respect to the facts, circumstances,
matters or events, which are the subject matter hereof, and
that no party hereto has pledged said rights as security for
performance of any obligation or otherwise encumber said
rights.
3. Each party hereto acknowledges and agrees that this Settlement
Agreement and Mutual General Release is a compromise of disputed
claims, and that the payments made hereunder are not to be construed as
an admission of liability on the part of any party hereto, by whom such
liability is expressly denied.
Page 5 of 9
4. Each party hereto agrees that in the event any party hereto engages the
services of an attorney to bring suit to enforce, interpret, or
otherwise construe the whole or any part of this Settlement Agreement
and Mutual General Release, or for damages on account of any breach of
covenant contained herein, or to quiet title, or to enforce any other
claim or cause of action arising out of the circumstances surrounding
the execution of this Settlement Agreement and Mutual General Release,
the prevailing party in any such litigation shall be entitled to
recover from the other reasonable attorneys' fees and costs incurred
therein as part of any judgment awarded by the court or settlement in
which such litigation is sought to be determined.
5. Each party hereto acknowledges that the parties to this Settlement
Agreement and Mutual General Release have been represented by
independent counsel of their own choosing, or have been afforded
sufficient opportunity so to do, with respect to this transaction, and
the preparation and execution of this Settlement Agreement and Mutual
General Release. Each party hereto hereby acknowledges, understands and
agrees that this Agreement and Release has been executed voluntarily
and of each party's own free will, that each party has been represented
by, or has been afforded sufficient opportunity to consult independent
income tax, legal, real estate and other such advisors of their own
choice and that each party's decision to execute this Agreement is
based upon his own independent consultations with such independent
advisers and not upon any advice, inducements or representations by any
other party hereto, or by any person, firm or entity on their behalf,
except as specifically set forth herein. Each party and/or his or its
counsel have reviewed this Settlement Agreement and Mutual General
Release and specifically agree that any rule of construction, to the
effect that ambiguities are to be resolved against the drafting party,
shall not apply to the interpretation of this Agreement and Release.
6. The parties hereto agree that time is of the essence with respect to
all aspects of this Settlement Agreement and Mutual General Release.
7. Other than as set forth in paragraph 4, hereinabove, the parties hereto
shall bear their own expenses, including all attorneys' fees and costs,
incurred in connection with the Action.
8. The parties hereto agree that this Settlement Agreement and Mutual
General Release contains the entire agreement of the parties hereto and
supersedes any prior written or oral agreements between them concerning
the subject matter contained herein. There are no representations,
agreements, arrangements or understandings, oral or written, between or
among the parties hereto, relating to the subject matter contained in
this Settlement Agreement and Mutual General Release which are not
fully expressed herein.
9. The parties hereto agree that all words used in this Settlement
Agreement and Mutual General Release shall be construed to include the
plural as well as the singular number, and words used herein in the
present tense shall include the future as well as the past, and words
used in the masculine gender shall include the feminine and neuter
gender. Should
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any provision of this Settlement Agreement and Mutual General Release
require judicial interpretation, it is agreed that the court
interpreting or construing the same shall not apply a presumption that
the terms hereof shall be more strictly construed against one (1) party
by reason of the rule of construction that a document is to be
construed more strictly against the person who himself or through his
agent prepared the same, it being agreed that both parties have
participated in the preparation hereof. The provisions of this
Settlement Agreement and Mutual General Release are severable and the
invalidity of any portion shall not invalidate the remainder.
10. No amendment, modification, change or alteration of the terms and
conditions of this Settlement Agreement and Mutual General Release
shall be effective for any purpose whatever unless reduced to writing
and signed by all of the parties hereto.
11. This Settlement Agreement and Mutual General Release shall become
effective upon execution of the Settlement Agreement and Mutual General
Release by all parties hereto, which may be accomplished by way of
counterparts. Upon full execution, the effective date of this
Settlement Agreement and Mutual General Release shall be deemed the
date first shown above.
12. The parties hereto agree that the terms of this Settlement Agreement
and Mutual General Release shall bind and inure to the benefit of the
respective heirs, personal representatives, successors in interest and
assigns of each of the parties hereto; and the terms of this Agreement
and Release, when applicable, shall survive the execution of any deed,
promissory note, deed of trust or close of escrow for the consummation
of this transaction.
13. Any Notice(s) required under this Settlement Agreement and Mutual
General Release shall be sent to as follows:
To Cross-Defendants: Xxxx Xxxxx, OnCure Technologies Corp., 0000 Xxxx
Xxxxx Xxxx, Xxxxx 0, Xxxxxxx Xxxxxxxxxx 00000
To Defendants: W. Xxxxx Xxxxx, 000 Xxxxxxx Xxxxxx Xxxx, Xxxxx 000,
Xxxxxx Xxxxx, Xxxxxxxxxx 00000.
14. This Settlement Agreement and Mutual General Release shall be construed
and interpreted in accordance with the laws of the State of California
and venue for any disputes shall be in Contra Costa, California.
THE PARTIES ACKNOWLEDGE THAT EACH PARTY HERETO HAS CAREFULLY READ THE FOREGOING,
INCLUDING, BUT NOT LIMITED TO, THE RELEASE AGREEMENT AND KNOWS THE CONTENTS
THEREOF, AND THAT EACH PARTY SIGNS THE SAME AS HIS OR ITS OWN FREE ACT.
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CAUTION - THIS CONTAINS A RELEASE - READ BEFORE SIGNING
Dated: February 28, 2002 /s/ W. Xxxxx Xxxxx
--------------------------
W. XXXXX XXXXX
Dated: February 28, 2002 STUNNER CORPORATION
/s/ W. Xxxxx Xxxxx
--------------------------
By: President
Dated: February 28, 2002 U.S. CANCER MANAGEMENT
CORPORATION
/s/ W. Xxxxx Xxxxx
--------------------------
By: General Partner
Dated: February 28, 2002 USCMC-USCC PARTNERSHIP
/s/ W. Xxxxx Xxxxx
--------------------------
By: General Partner
Dated: February 28, 2002 U.S. CANCER CARE, INC.
/s/ Xxxxxxx X. Xxxxxxx
--------------------------
By: President
Dated: February 28, 2002 ONCURE TECHNOLOGIES, CORP.
/s/ Xxxxxxx X. Xxxxxxx
--------------------------
By: President
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APPROVED AS TO FORM:
Dated: February 28, 2002 LAW OFFICES OF XXXXXXX X. XXXX
Professional Corporation
/s/ Xxxxxxx X. Xxxx
--------------------------
By: Xxxxxxx X. Xxxx
Dated: February 28, 2002 XXXXX, XXXXXXXX & DION, LLP
/s/ Xxxx X. Xxxx
--------------------------
By: Xxxx X. Xxxx
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