MUTUAL RELEASE AND SETTLEMENT AGREEMENT
This
Mutual Release and Settlement Agreement (the “Agreement”) is entered into
December 6, 2006, by and among Xxxxx X. Xxxxxxxxx (“Xxxxxxxxx”) and Noninvasive
Medical Technologies (“NMT”).
Recitals
On
or
about October 30, 2003 NMT and Xxxxxxxxx entered into a Sale of Stock Agreement
whereby NMT purchased 100% of the stock of the entity known as Wantagh, Inc.
(“Wantagh”) from Xxxxxxxxx in exchange for a fifteen per cent (15%) membership
interest in NMT (the “Sale”).
Following
the Sale several suits were initiated against NMT and Wantagh seeking to
recover
monies owed by Wantagh (the “Collection Cases”). The
Collection Cases are currently pending in the Court of Common Pleas of Bucks
County, Pennsylvania and are captioned as follows:
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Xxxxxx
X. Xxxxx, Xx. v. NonInvasive Medical Technologies, LLC (Case No.
05-02102-16-1) (the “Xxxxx Matter”);
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Xxxx
Xxxxxxx v. Wantagh, Inc. and Non Invasive Medical Technologies,
LLC (Case
No. 04-06839-24-1) (the “Xxxxxxx Matter”); and
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Xxxx
X. Xxxxxxx v. NonInvasive Medical Technologies, LLC (Case No.
05-01983-27-1) (the “Xxxxxxx
Matter”).
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NMT
has
and does maintain that it is not responsible for the debts of Wantagh and
does
not waive that position, nonetheless, while each party disputes the other’s
claims, the parties wish to resolve the disputes underlying the Collection
Cases, along with any and all other disputes between them, upon the terms
and
conditions hereinafter set forth.
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In
consideration of the foregoing Recitals, which are part of this Agreement,
the
mutual covenants and promises contained herein, and intending to be legally
bound hereby, the parties agree as follows.
1. Payment.
NMT
will
purchase Xxxxxxxxx’x 15% membership interest in NMT (or corresponding stock in
NMT Delaware for One Million Six Hundred Thousand Dollars and 00/100
($1,600,000) (the “Purchase Price”). The Purchase Price is to be paid as
follows:
a.
Advance
Payment.
Within
ten (10) days of the signing of this Agreement NMT will pay to Wantagh the
sum
of One Hundred Fifty Thousand Dollars and 00/100 ($150,000) (the “Advance
Payment”), which will be disbursed to Xxxxxxxxx. The Advance Payment will be
credited against the Purchase Price.
b.
Balance
of Purchase Price.
The
Balance of the Purchase Price which will be paid within sixty (60) days after
NMT’s receipt of the proceeds of its Initial Public Offering of Stock (IPO).
NMT
may choose, at its sole discretion to pay the amount earlier.
2. Dismissal
of the Collection Cases.
Simultaneously
with receipt of the Advance Payment, Xxxxxxxxx will deliver to the Court
and NMT
a Dismissal with Prejudice of both the Xxxxx Matter and the Xxxxxxx Matter.
Xxxxxxxxx will also deliver to the Court and NMT a Dismissal without Prejudice
of the Xxxxxxx Matter.
3. Release
by Wantagh’s Creditors. Simultaneously,
and as a condition precedent to NMT’s obligation to pay the Purchase Price as
described in Paragraph 1 of this Agreement, Xxxxxxxxx agrees to pay all of
Wantagh’s creditors and to obtain from those creditors full releases which will
irrevocably and unconditionally release, acquit and forever discharge NMT
and
Wantagh and any of their predecessors, successors, assigns, agents, affiliates,
subsidiaries, parent or other related entities, directors, officers,
representatives, attorneys and all persons acting by, through, under or in
concert with any of them or all of them (the “Released Parties”), from any and
all charges, complaints, claims, liabilities, obligations, promises, agreements,
controversies, damages, actions, causes of action, suits, rights, demands,
costs, losses, debts and expenses (including attorneys' fees and costs actually
incurred), known or unknown, suspected or unsuspected in tort, contract or
equity.
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4. Indemnification
Agreement.
Upon
payment of the Purchase Price as described in Paragraph 1 of this Agreement,
Xxxxxxxxx hereby agrees to indemnify, defend and hold the Released Parties
harmless, including attorneys’ fees, from and against all losses, claims,
actions, demands, consequences, results, or impairments arising out of or
in
connection with any of Wantagh’s creditors.
5. Failure
to Consummate Purchase.
In
the
event that NMT is unable to consummate the purchase of Xxxxxxxxx’x membership
interest or stock in NMT Delaware the following shall occur:
x.
Xxxxxxxxx will retain his interests and/or shares in NMT and will be free
to
take whatever action he may desire relative to Wantagh or NMT;
b.
Should
Xxxxxxxxx choose to resume the Xxxxxxx Matter, Xxxxxxxxx will give NMT a
credit
from the Advance Payment in the amount of One Hundred Four Thousand Two-Hundred
Sixteen Dollars and 16/100 ($104,218.16) to be applied to the amounts claimed
in
the Xxxxxxx Matter.
6. Tolling
Agreement.
NMT
and
Xxxxxxxxx agree that any statutes of limitations relative to any claim by
Xxxxxxxxx and/or Wantagh’s creditors who were disclosed at the time of the Sale
shall be tolled until the earlier of the payment of those claims by Xxxxxxxxx
pursuant to Paragraph 3 of this Agreement or one (1) year and sixty (60)
days
after the date of the execution of this Agreement.
7. Release. Upon
the
completion of the exchanges contemplated in Paragraph 1 of this Agreement,
the
parties hereby irrevocably and unconditionally release, acquit and forever
discharge each other and each other’s predecessors, successors, assigns, agents,
affiliates, subsidiaries, parent or other related entities, directors, officers,
representatives, attorneys and all persons acting by, through, under or in
concert with any of them or all of them, from any and all charges, complaints,
claims, liabilities, obligations, promises, agreements, controversies, damages,
actions, causes of action, suits, rights, demands, costs, losses, debts and
expenses (including attorneys' fees and costs actually incurred), known or
unknown, suspected or unsuspected in tort, contract or equity. Notwithstanding
anything to the contrary in this Agreement or elsewhere, the parties are
not
released from their obligations under this Agreement.
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8. Entire
Agreement.
This
Agreement sets forth the entire agreement between the parties hereto, represents
the joint work product of the parties such that neither will be considered
the
drafter hereof, that each party has had the benefit the legal advice in entering
into this Agreement and, except as otherwise provided herein, this Agreement
fully supersedes any and all prior agreements or understandings, whether
oral or
written, between the parties hereto pertaining to the subject matter
hereof.
IN
WITNESS WHEREOF, the parties have duly executed and delivered this Agreement
as
of the date first above written.
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Noninvasive
Medical Technologies, LLC
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Xxxxx
X. Xxxxxxxxx
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By:
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/s/
Xxxxxx XxXxxxxxx
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/s/
Xxxxx X. Xxxxxxxxx
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| Title:
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Chief
Executive Officer
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