EXHIBIT 10.71
SETTLEMENT AGREEMENT
and
GENERAL MUTUAL RELEASES
This SETTLEMENT AGREEMENT and GENERAL MUTUAL RELEASES (the "Settlement
Agreement") is made as of the date of last execution below by and between MED
DIVERSIFIED, INC. (fka x-XxxXxxx.xxx) ("Med"), and XXXXXX INTERNATIONAL, LTD.
("Xxxxxx") (collectively, the "Parties").
1. RECITALS. This Settlement Agreement is made with reference to the
following facts:
1.1 MED'S CLAIMS. On or about October 29, 2001, Med initiated
Commercial Arbitration No. 50-T-168-00515-01 (the "Arbitration") before the
International Centre for Dispute Resolution of the American Arbitration
Association. In its demand for arbitration (the "Claim"), Med alleged, among
other things, that Xxxxxx had fraudulently induced Med to enter into a February
20, 2001 Common Stock Purchase Agreement (the "Agreement") and a related warrant
(the "Warrant") through misstatements of material fact and failure to disclose
facts that Xxxxxx had a duty to disclose. The allegations in the Claim are
hereinafter referred to as "Med's Claims." Xxxxxx denies Med's claims.
1.2 XXXXXX'X CLAIMS. On or about December 28, 2001, Xxxxxx filed a
counterclaim (the "Counterclaim") in the Arbitration, in which it contended that
Med was liable to Xxxxxx for failing to timely register the Warrant and for
other alleged breaches of the Agreement and Warrant. (Xxxxxx'x claims are
hereinafter referred to as "Xxxxxx'x Claims.") Med denies Xxxxxx'x claims.
(Med's Claims and Xxxxxx'x Claims are hereinafter referred to as the "Claims.")
1.3 REASONS FOR SETTLEMENT. In order to avoid the expense and
inconvenience of further litigation, the Parties have agreed to compromise their
respective claims and defenses. This Settlement Agreement is a compromise of
disputed claims, and nothing contained herein is to be construed as an admission
of fact or of liability on the part of any Part or of the absence of liability
by any Party with respect to the Claims.
NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS:
2. INCORPORATION OF RECITALS. The recitals above are incorporated by
reference and hereby made a part of the Parties' agreement.
3. REPRESENTATIONS AND WARRANTIES.
3.1 Each Party hereby represents and warrants to each other Party
that it is the owner, free and clear, of each of the rights to prosecute and/or
to compromise and settle all of the claims released by that Party in this
Settlement Agreement; and
3.2 Each Party hereby represents and warrants to each other party
that it has not transferred, hypothecated, assigned, or suffered the involuntary
loss of any of the rights to
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prosecute or to compromise and settle any of the claims released by that Party
in this Settlement Agreement.
4. MED'S PAYMENT TO XXXXXX. Following the full execution of this
Settlement Agreement, Med shall pay Xxxxxx the total amount $75,000 (the
"Settlement Payment"). Med shall satisfy this obligation by paying Xxxxxx
$25,000 on or before November 15, 2002, November 30, 2002 and December 31, 2002.
Notwithstanding the foregoing, Med shall not be in "default" under this
Paragraph unless it fails to pay any amount due within ten calendar days of
receiving written notice from Xxxxxx of Med's failure to make a required
payment.
5. STAY AND DISMISSAL OF THE ARBITRATION. Immediately upon the full
execution of this Settlement Agreement, Xxxxxx will cooperate with Med to cause
the Arbitration to be stayed pending Med's performance of its obligations under
this Settlement Agreement. The Stay shall be lifted if Med defaults by failing
to make a timely installment payment of the Settlement Payment. Immediately upon
Med's performance of its final obligation under this Settlement Agreement,
Xxxxxx will cooperate with Med and execute all documents necessary to cause the
Arbitration to be dismissed with prejudice.
6. GENERAL MUTUAL RELEASES. Upon Med's payment to Xxxxxx of the entire
Settlement Payment, except for those executory rights created by and described
in this Settlement Agreement, Med, on the one hand, and Xxxxxx, on the other
hand, hereby, for themselves and for their attorneys, agents, employees,
officers, directors, representatives, partners, joint ventures, spouses,
children, heirs, executors, parents, subsidiaries, investment advisors
(including anyone associated with their investment advisors), related entities,
predecessors, successors, assigns and insurers, release and forever discharge
each other and the other's present, past, and future attorneys, agents,
employees, officers, directors, representatives, partners, joint ventures,
spouses, children, heirs, executors, parents, subsidiaries, investment advisors
(including anyone associated with their investment advisors), related entities,
predecessors, successors, assigns and insurers, from any and all claims, claims
for relief, demands, debts, liabilities, accounts, obligations, costs, expenses,
liens, actions, causes of action (at law, in equity, or otherwise), rights,
rights of action, rights of indemnity (legal or equitable), rights of
subrogation, rights to contribution, and remedies of any nature whatsoever,
known or unknown (whether presently existing or accruing hereafter), including,
but not limited to those claims and causes of action based upon, related to,
arising out of, or resulting from the Claims. If Med falls timely to pay Xxxxxx
the entire Settlement Payment, there shall be no releases and any partial
payments by Med shall be a credit (or debit) against any subsequent recovery,
either voluntary or by judgment or award.
7. UNKNOWN AND FUTURE CLAIMS; WAIVER OF CALIFORNIA CIVIL CODE
SECTION 1542. Subject to the provisions in Paragraph 6, the Parties hereto also
waive expressly each and all of the provisions of California Civil Code Section
1542, which reads as follows:
SECTION 1542. CERTAIN CLAIMS NOT AFFECTED BY
GENERAL RELEASE. 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
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BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR.
The Parties understand and acknowledge the significance and consequences of this
Settlement Agreement and of their specific waiver of Section 1542, and expressly
agree that this Settlement Agreement shall be given full force and effect
according to each and all of its terms and provisions, including those relating
to unknown and unsuspected claims, demands, obligations and causes of action, if
any, as well as those relating to any other claims, demands, obligations or
causes of action herein specified. Med acknowledge that they and their attorneys
may hereafter discover facts different from or in addition to those which they
now know or believe to be true with respect to the claims, demands, debts,
liabilities, accounts, obligations, and causes of action of every kind released
herein. Med agree that the releases given herein shall be and remain in effect
as a full and complete release of the persons and entities released thereby,
notwithstanding any such different or additional facts.
8. MISCELLANEOUS PROVISIONS.
8.1 VOLUNTARY AGREEMENT. This Settlement Agreement is executed
voluntarily and without duress or undue influence from or on behalf of any
person, firm, or entity, whether public or private. Each Party acknowledges that
it has been represented by independent counsel of its own choosing in the
negotiation of this Settlement Agreement, and that it has been advised regarding
the same before it executed this Settlement Agreement.
8.2 NO REPRESENTATIONS. No representations have been made by any
Party to any other Party except for those contained in this Settlement
Agreement.
8.3 ENTIRE AGREEMENT; EXTINCTION OF ANY PRIOR REPRESENTATIONS OR
AGREEMENTS. This Settlement Agreement contains the entire agreement between Med
and Xxxxxx with respect to the subject matters of the Claims and this Settlement
Agreement. This Settlement Agreement supersedes every representation, warranty,
or agreement relating to any matter covered by this Settlement Agreement between
or among the Parties, or any of them, which predates the execution hereof. Any
such representation, warranty, or agreement which is not specifically referred
to herein, whether written or oral, shall be void and will not bind any of the
Parties hereto.
8.4 SETTLEMENT AGREEMENT BINDING UPON SUCCESSORS. This Settlement
Agreement shall bind and inure to the benefit of the respective successors,
assigns and personal representatives of Med and Xxxxxx.
8.5 CHOICE OF LAW AND FORUM. This Settlement Agreement shall be
governed by the laws of the State of California applicable to contracts executed
in and to be performed entirely within that state. The Parties agree that any
action or proceeding initiated by either Party arising directly or indirectly
out of this Settlement Agreement shall be litigated in a federal or state court
located in Los Angeles, California. The Parties waive any claim that a federal
or state court located in Los Angeles, California is an inconvenient or improper
forum. The parties also agree that should either party default in its
obligations under this Settlement Agreement or a
interruption or stay, even if an action is commenced regarding a default or
dispute arising out of this Settlement Agreement.
8.6 ATTORNEYS' FEES. Should any Party hereto institute any action
or proceeding to enforce any term or provision hereof, or for damages by reason
of any alleged breach of any term or provision hereof, or for a declaration of
such Party's rights or obligations hereunder, or for any other judicial remedy,
whether legal or equitable, the prevailing Party in such action or proceeding
shall recover from the losing Party all attorneys' fees, costs, and expenses
actually paid by the prevailing Party to its attorneys for the services rendered
the prevailing Party in any such action or proceeding and in collecting any
judgment.
8.7 MODIFICATIONS AND AMENDMENTS. No amendment, change, or
modification of this Settlement Agreement shall be valid unless it is in writing
and signed by all parties to be charged thereby.
8.8 PARTIES TO BEAR OWN COSTS. Med and Xxxxxx shall each bear its
attorneys' fees and expenses of the Arbitration and of the negotiation and
execution of this Settlement Agreement.
8.9 COUNTERPARTS. This Settlement Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, and all of
which shall constitute together one and the same instrument.
8.10 FACSIMILE SIGNATURE. Facsimile copies of signatures on this
Settlement Agreement shall be deemed valid and original.
8.11 TITLES AND CAPTIONS. The paragraph titles or captions contained
in this Settlement Agreement are inserted only as a matter of convenience, and
in no way define, limit, extend, or describe the scope of this Settlement
Agreement or the intent of any provision herein.
8.12 NEGOTIATED AGREEMENT. This Settlement Agreement is the result
of a negotiation between Med and Xxxxxx, and is not the product of any one
Party. There shall be no presumption in the interpretation hereof that any
ambiguity is to be resolved against any Party hereto.
8.13 SEVERABILITY. If any provision of this Settlement Agreement
shall be deemed for any reason to be invalid, illegal or unenforceable, such
provision shall be severed from the remainder of this Settlement Agreement, and
that remainder shall continue in full force and effect.
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8.14 LEGAL COUNSEL. PLAINTIFFS AND DEFENDANTS ACKNOWLEDGE THAT THEY
HAVE BEEN REPRESENTED BY INDEPENDENT COUNSEL OF THEIR OWN CHOOSING IN THE
NEGOTIATION OF THE SETTLEMENT AGREEMENT AND THAT THEY HAVE BEEN FULLY ADVISED
REGARDING ALL ASPECTS AND RAMIFICATIONS OF THE SAME BEFORE THEY EXECUTED IT.
MED DIVERSIFIED, INC.
Dated: 11/5/02 /s/ Xxxxx X. Xxxxxx
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By: Xxxxx X. Xxxxxx
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Its: Exec. VP Admin & - HR
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XXXXXX INTERNATIONAL, LTD.
Dated:
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By:
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Its:
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2.14 LEGAL COUNSEL. PLAINTIFFS AND DEFENDANTS ACKNOWLEDGE THAT THEY
HAVE BEEN REPRESENTED BY INDEPENDENT COUNSEL OF THEIR OWN CHOOSING IN THE
NEGOTIATION OF THIS SETTLEMENT AGREEMENT AND THAT THEY HAVE BEEN FULLY ADVISED
REGARDING ALL ASPECTS AND RAMIFICATIONS OF THE SAME BEFORE THEY EXECUTED IT.
MED DIVERSIFIED, INC.
Dated: /s/
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By:
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Its:
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XXXXXX INTERNATIONAL, LTD.
Dated: /s/ [ILLEGIBLE]
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By: [ILLEGIBLE]
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Its: DIRECTOR
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COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss.
On November 5, 2002 before me, Xxxxxx Xxxxxxx, personally appeared
Xxxxx X. Xxxxxx, personally known to me to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed the
same in his authorized capacity, and that by his signature on the instrument,
the entity upon behalf of which he acted, executed the instrument.
WITNESS my hand and seal.
/s/ Xxxxxx Xxxxxxx
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Signature of Notary
[Notarial Seal]
