EXHIBIT 10.64
SETTLEMENT AGREEMENT
I. PARTIES
Biomet, Inc. ("Biomet")
Xxxxxxx X. Xxxxx ("Xxxxx")
Xxxx X. Xxxxx ("Jirka")
Xxxx X. Xxxxx & Associates ("EKJ")
N.W. Medical Products, Inc. ("N.W. Medical")
(Collectively, "Defendants")
Exactech, Inc. ("Exactech")
II. SETTLEMENT OF ACTION.
This settlement agreement resolves all disputes between the
parties related to BIOMET, INC. X. XXXXX ET AL., U.S. District No. CV 97-1633 PA
("Action").
III. RELEASES.
Biomet hereby provides defendants, their past and present
agents, employees, officers, and attorneys, with a complete and general release
of all claims and counterclaims, causes of action of any kind, known or unknown,
suspected or unsuspected. Defendants hereby provide Biomet, Inc. and its past
and present agents, employees, officers and attorneys with a complete and
general release of all claims and counterclaims, causes of action of any kind,
known or unknown, suspected or unsuspected. Biomet and Exactech give each other
and their past and present agents, employees, officers and attorneys a complete
and mutual release with respect to all events directly related to the Action,
including events that occurred in any state or location, known or unknown,
suspected or unsuspected, provided such events relate directly to the Action.
Each of the above releases includes claims for fraudulent inducement of this
Agreement.
IV. NO HIRE AGREEMENT.
From the date of this Agreement forward, Exactech agrees not
to hire as a new agent for Exactech any of Biomet's exclusive distributors or
sales representatives whose current territory is located west of the Mississippi
in the continental U.S. (which does not include Alaska and Hawaii), for a period
of four months following the date of this Agreement.
V. CONFIDENTIAL AGREEMENT BETWEEN BIOMET AND DEFENDANTS.
Upon execution of this Agreement, Biomet and defendants shall
execute a confidential separate written agreement between them, attached as
exhibit A. Exactech shall not receive a copy of exhibit A. Xxxx Xxxxxx shall
receive a confidential copy of exhibit A.
VI. CONFIDENTIAL AGREEMENT BETWEEN EXACTECH AND JIRKA
Upon execution of this Agreement Exactech and Jirka shall
execute a Confidential separate written agreement between them, attached as
exhibit B. Biomet shall not receive a copy of exhibit B. Xxxx Xxxxxx shall
receive a confidential copy of exhibit B.
VII. CONFIDENTIALITY
This Agreement, which indludes the two side agreements
referred to in paragraphs V and VI, shall be confidential The parties further
agree that the Agreement, as defined above, is confidential pursuant to ORS
36.220(2)(b). The Court's rulings in the Action are not subject to this
provision. Xx. Xxxxx and Xx. Xxxxx may also consult with a Portland area tax
accountant or tax attorney who shall be informed of these confidentiality terms
and shall agree to honor them before any disclosure to the attorney or
accountant. Any claim for breach of paragraphs V, VI, and VII shall be
arbitrated by Xxxx Xxxxxx in Portland.
VIII. BINDING AGREEMENT
This agreement is binding on the parties' successors, heirs,
and assigns. Each party represents and warrants that there has been no
assignment of the released claims.
IX. ARBITRATION
Any disagreement about the terms or enforcement of this
Agreement, which includes Exhibits A and B, shall be arbitrated by Xxxx Xxxxxx
in Portland, including enforcement of confidentiality, with the prevailing party
to receive its costs and attorney fees. All confidentiality remains binding at
all times. Arbitration shall be binding and governed by Oregon law.
X. NO ADMISSION OF LIABILITY
No party admits liability or fault of any kind and this
Agreement shall not be admissible in any proceeding, except to enforce its
terms.
XI. NOTICE OF COURT.
Upon execution, the parties shall notify the Court and ask it
to issue no further orders or opinions.
XII. INTEGRATION.
This Agreement, including the two side agreements described in
paragraphs V and VI, contains the entire agreement of the parties. Any
modifications must be in writing signed by all parties. All prior agreements or
discussions are superseded by this Agreement. The Agreement is not effective
until this agreement and side agreements described in paragraphs V and VI, have
been completely executed.
XIII. LAW OF OREGON.
This agreement shall be governed by the laws of the State of
Oregon.
XIV. DISMISSAL, RETURN OF DOCUMENTS.
Upon execution, the parties shall dismiss their claims and
counterclaims in the Action with prejudice, with each side to bear its costs and
fees. After dismissal, each side shall return all documents provided to the
other, and shall return documents received from Exactech to Exactech. This
provision does not apply to documents that have been attached as exhibits to
court filings or depositions, which counsel may retain. This provision does
apply to copies made of such douments. Documents and copies shall be returned
within 30 days of the date of this Agreement.
XV. COUNTERPARTS
This Agreement and the two side agreements may be executed by
faxed counterparts, which taken together will contitute a binding and fully
executed agreement after all required signatures have been received by Ball
Xxxxx LLP. After receipt, Ball Xxxxx LLP shall distribute copies of fully
executed documents to the required parties and to Xxxx Xxxxxx, pursuant to the
provisions of paragraphs V and VI.
Biomet, Inc. N.W. Medical Products, Inc.
By:/S/ XXXXXX X. XXXX By:/S/ XXXXXXX X. XXXXX
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Its: Vice President & General Counsel Its: President
Dated: 2/9/1998 Dated: 2/9/1998
Xxxx X. Xxxxx & Associates Exactech, Inc.
By:/S/ XXXX X. XXXXX By:/S/ XXXXXXX X. XXXXX
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Its: Owner Its: President
Dated: 2/9/1998 Dated: 2/9/1998
Xxxxxxx X. Xxxxx
By:/S/ XXXXXXX X. XXXXX
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Dated: 2/9/1998
