Exhibit 10.64
AGREEMENT
NETWORK V. NCFE AND MED
1. Judgment shall be entered in favor of Network on its first amended
complaint against Med, in the amount of $8.5 million ("Judgment") Judgment
shall be placed on the record in the Arbitration. The Judgment shall not be
confirmed by the Los Angeles Superior Court and enforcement shall be stayed
until the earlier of: (1) Med or NCFE is involved in a petition for
bankruptcy protection (voluntarily or involuntarily), has a
receiver/examiner appointed, or does an assignment for the benefit of
creditors; or (2) any failure to perform any of the following in a timely
manner, in which once the judgment may be enforced through all legal means:
i) Payment by NCFE in the amount of $2.5 million to Network and
received by Network on or before 10.00 a.m. (PT) on July 1, 2002 by
way of wire transfer. Said payment shall be credited against the
Judgment amount set forth above;
ii) Payment by Med in the amount of $2.5 million to Network and received
by Network on or before 4:00 p.m. (PT) on August 1, 2003 by way of
wire transfer;
iii) Med represents it has not transferred any interest in any of the
hold shares given to it by Cross-Defendants ("Cross-Defendants" is
defined as those parties such in Med's First Amended Cross-
Complaint) per the March 19, 2001 Settlement Agreement or those
shares placed in escrow and agrees it shall deliver all shares of
PrimeRx to, and shall release all interest in those shares in escrow
in favor of Xxxx Xxxxx, M.D. and Prime A Investments, or their
designee within ten (10) business days from the date Judgment is
placed on the record in the arbitration proceeding. In the event
that Med obtains Xxxxxxx Xxxxx'x and/or Xxxxx Xxxxxx'x PrimeRx
shares, Med shall deliver those shares to Xxxx Xxxxx, M.D. and
Prime A Investments, or their designee within ten (10) calendar days
of receipt thereof;
iv) Med shall return all PrimeRx, PrimeMed and Network equipment
(including CN Leasing Equipment) in its possession, custody or
control to Network in good working order, along with an inventory
of that equipment, within ten (10) business days from the date
judgment is placed on the record in the arbitration proceeding. Med
and Network shall split the shipping costs associated therewith. In
the event Med transferred or sold any equipment prior to the date
the Judgment is placed on the record, it shall deliver an inventory
of that sold/transferred
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MED NCFE NPF XII NETWORK PRIME A XXXXXX X.XXXXX X.XXXXX X.XXXXX
equipment and the identity of the transferee(s) within ten (10)
business days from the date Judgment is placed on the record;
V) Cross-Defendants, and each of them, are absolved of any liability
owing by Med and shall not be obligated to assume, and are not
assuming any non-Network obligation to Bergen. Med shall pay up to
$1 million of those obligations which Xx. Xxxxx has guaranteed
within fifteen (15) months from date judgment is placed on the
record, Med shall satisfy this obligation by paying not less than
$66,666.66, per month, payable not later than 15th business day of
each month, commencing July 15, 2002, toward any obligation
guaranteed by Xx. Xxxxx for fifteen (15) consecutive months and
shall provide written confirmation of payments having been made; and
VI) Med and Cross-Defendants shall exchange Board Resolutions not
later than 9:00 a.m. (pst) on Tuesday, July 2, 2002. NCFE, NPF XII
and Xxxxx Xxxxxxxxxxxx represent and warrant a Board Resolution by
NCFE's and NPF XII's Board is not necessary in bind them to this
Agreement and that Xxxxx Xxxxxxxxxxxx is authorized to sign and
bind NCFE and NPF XII to this Agreement, and based upon those
representations no Board Resolution by NCFE or NPF XII shall be
necessary.
2. Med shall dismiss its cross-complaint, with prejudice, prior to the
Judgment being placed on the record with the American Arbitration
Association.
3. Med and NCFE represent and warrant: 1) they are paying their operational
expenses as they become due; and 2) this confession of judgment and
settlement is an arm's length transaction and that the payment amounts
described above are an exchange or reasonably equivalent value.
4. Med, NCFE and NPF XII admit the terms reached herein are in good faith and
that they waive any right of indemnity or contribution as between them.
5. Subject to, and with the exception of, the obligations set forth herein,
Med, NCFE and NPF XII, and their respective subsidiaries and affiliates, on
the one hand, and Cross-Defendants and their subsidiaries and affiliates
on the other hand, hereby release one another and each of their respective
principals, attorneys, officers, directors, partners, parents and current
employees from any and all claims, demands, charges, debts, defenses,
actions, obligations, damages, complaints, controversies and liabilities
whatsoever which they now have, have had, or may have had, individually,
jointly or otherwise, whether in law, in equity or mixed, whether known or
unknown, suspected or unsuspected, whether concealed or hidden which they
now own or hold or may hereafter
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have against one another, by reason of any matter relating to the subject
matter of this litigation. Notwithstanding the general nature of this
release, Xxx Xxxxx'x compensation claim against Med, and all claims against
Matko, Rombro, the Manatt Firm (and any of Manatt's attorneys), Xxxxx (and
his fiance and/or wife) or Xxxxxx are not being released.
6. It is a condition hereof, and it is the intention of the Parties hereto in
executing this Agreement and in giving the Releases set forth herein, that
the same shall be effective as a bar to each and every claim, demand, and
cause of action, matter or thing specified; and in furtherance of this
specific intention, the parties hereby expressly waive any and all rights
and benefits conferred upon them by the provisions of Section 1542 of the
California Civil Code which provides:
"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 this settlement with the debtor."
7. The Parties hereto represent and warrant that they have been advised to
seek advise from independent legal counsel of their own choosing regarding
this Agreement and its terms and language, and understand and acknowledge
the significance and consequence of these Releases, and the specific waiver
of Section 1542, and the Parties hereto, and each of them, expressly
consent that this Agreement and the Releases set forth herein shall be
given full force and effect according to each and all of their express
terms and provisions, including those relating to unknown and unsuspected
claims, demands and causes of action, if any as well as those relating to
any other claims, demands and causes of action herein above specified.
8. The Parties hereto, and each of them, separately represent and warrant to
each other that they have not heretofore assigned or transferred, or
purported to assign or transfer, to any other person or entity any claim or
other matter herein released.
9. It is understood by the Parties hereto, and each of them, and specifically
stated by the Parties hereto, and each of them, that this Agreement is made
without reliance upon any statement or representation of any other party or
any agent, attorney, or representative of any party hereto and that no
party hereto is acting as agent, attorney or representative of any other
party hereto and that the release herein includes claims for
misrepresentation, fraud to the inducement, and concealment as it relates
to facts discussed prior to execution of this Agreement.
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10. Each party to this Agreement represents and warrants to each and every
other party to this Agreement that each party has made such investigation
of the facts pertaining to the settlement set forth herein, and of all
matters pertaining thereto, as they deemed necessary and that their
willingness to execute this Agreement is based upon their independent
investigation, rather than any statement or representation made during the
pendency of the Action, including settlement discussions.
11. In entering into this Agreement and the settlement provided for herein,
each party assumes the risk of any misrepresentation, concealment, or
mistake except for the representations and statements expressly made in
this Agreement. If any party should subsequently discover that any fact
relied upon by it in entering into this Agreement is untrue, or that the
law presently in effect has changed in a manner which would otherwise
effect such Parties' rights hereunder, such Parties shall not be entitled
to any relief in such connection or otherwise, including, without
limitation on the intended generality of the foregoing, any alleged right
or claim to set aside or rescind this Agreement. This Agreement is intended
to be and is final and binding between the Parties hereto, regardless of
any claims of fraud, misrepresentation, promise made without the intention
of performing. concealment of fact, mistake of fact or law, or any other
circumstance whatsoever.
12. In the event of any material breach by Med, NCFE or NPF XII, the parties
agree the releases in favor of NCFE and NPF XII shall be deemed void and of
no force or effect. Cross-Defendants, and each of them, shall then have the
right to pursue any and all claims they may have as against NCFE and NPF
XII (in accordance with the terms of the NCFE stipulation dated June 25,
2002), provided however NCFE and NPF XII shall be entitled to assert any
defense of offset and recoupment in any such action. Cross-Defendants'
claims against NCFE and NPF XII shall be limited to $6 million. In the
event of any further action between Cross-Defendants, or any of them, and
NPCE and/or NPF XII, Cross-Defendants agree that evidence of the
transaction between Med and NCFE relating to payment of the $2.5 million
addressed in Paragraph 1 i) above (if any) shall be inadmissible to
establish the vicarious liability of NCFE and/or NPF XII for Med's debt or
for equitable subordination of their claims against Med. In the event of
any material breach of Med, Cross-Defendants shall also be allowed to
pursue enforcement of the Judgment against Med to the fullest extent
allowed by law.
13. The April 6, 2000 Management Services and Joint Venture Agreement (the
"MSA") as between Med and PrimeRx shall be deemed terminated as of the date
judgment is placed on the record with American Arbitration Association.
14. No management agreement shall exist between Med and Network.
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15. Upon the payment of the first $2.5 million payment and turnover of Med's
Board resolution approving this Agreement by 9:00 a.m. (pst) on July 2,
2002, Network will allow Med immediate and complete access to its books and
records. Network will immediately make its senior accounting and finance
personnel, including, but not limited to Xxxxxx Xxxxx, Xxxxxx Xxxxxx and
Xxxxxx Xxxxx available to answer any questions from Med's auditors to allow
Med to attempt to consolidate Network's financial statements for the four
(4) month period ending July 31, 2001 and allow Med's auditors to prepare
Med's public filing statement. Network shall fully cooperate with Med's
auditor's requests for information, subject to the limitations set forth
below.
i. Med understands that Cross-Defendants have made and will make no
representations or warranties regarding completeness or accuracy of
the Network books and records;
ii. Network is not obligated to make any representations or warranties
regarding the completeness or accuracy of its books and records,
including providing any audit or management letters;
iii. Med understands and agrees it is assuming the risk of not being able
to consolidate and that Cross-Defendants shall in no way be liable
for any claim arising out of an unsuccessful effort by Med to
consolidate its books with Network;
iv. Med shall be responsible for all costs associated with Network
allowing Med access to its books and records; and
v. Med shall indemnify and hold harmless Cross-Defendants from any
claim that may arise in the event Med is unsuccessful in its effort
to consolidate with Network or that may arise from Med's use of
Network's financial information.
16. In the event Med and NCFE comply with all terms and conditions of this
judgment and settlement with respect to matters set forth above, Network
shall deliver an Acknowledgment of Full Satisfaction of Judgment by other
than full payment within ninety-one (91) calendar days from the date last
payment obligation under this Agreement is made.
17. The parties agree to execute all documents reasonably necessary to
effectuate the terms of this settlement.
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18. Judge Haberfeld shall retain jurisdiction to preside over all disputes
regarding obligations under this judgment and any decision by him on any
issue in the dispute shall be binding on the parties. In the event any
issue regarding performance by any party should arise the complaining party
may submit the matter to Judge Haberfeld on one business day's notice and
he can rule that a party must do something more or differently than what is
then being done, and his ruling shall be binding.
19. The parties hereto agree to bear responsibility for their own fees and
costs incurred prior to the date of this Agreement. In the event of future
disputes, the prevailing party shall recover its attorneys' fees and costs.
20. Each party has cooperated in the drafting and preparation of this
Agreement. Hence, if any construction to be made of this Agreement, the
same shall not be construed against any party.
21. This Agreement may be executed in one or more Counter-parts (multiple
signatures) each of which shall be deemed an original, and all of which
constitute one and the same instrument. Facsimile signatures are acceptable
to serve as originals.
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MED NCFE NPF XII NETWORK PRIME A XXXXXX X.XXXXX X.XXXXX X.XXXXX
Med Diversified, Inc (formerly e-Medsoft-com, Inc.)
Dated: By:______________________________________________
National Century Financial Enterprises, Inc.
Dated: 7/1/02 By: /s/ Xxxxx X. Xxxxxxxxxxxx
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Xxxxx X. Xxxxxxxxxxxx E.V.P.
NPF XII
Dated: 7/1/02 By: /s/ Xxxxx X. Xxxxxxxxxxxx
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Xxxxx X. Xxxxxxxxxxxx E.V.P.
Network Pharmaceuticals, Inc.
Dated: By: /s/__________________________________________
Prime A Investments LLC
Dated: By:______________________________________________
Xxxxxx Xxxxx Family Trust
Dated: By:______________________________________________
Dated: By:______________________________________________
Xxxx Xxxxx, M.D.
Dated: By:______________________________________________
Xxxxxx Xxxxx
Dated: By:______________________________________________
Xxxxxxx Xxxxx
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MED NCFE NPF XII NETWORK PRIME A XXXXXX X.XXXXX X.XXXXX X.XXXXX
