Exhibit 10.41
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TERMINATION AND RELEASE
WITNESSETH, this TERMINATION AND RELEASE (this "Termination and
Release") by and between THE AMERICAN NATIONAL RED CROSS, a not-for-profit
corporation chartered by an act of Congress ("ARC"), and HMSR INC., a Delaware
corporation with an office and principal place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ("HMSR") (Formerly HemaSure Inc. prior to May 29, 2001),
dated as of August 17, 2001.
WHEREAS, HMSR and ARC (collectively, the "Parties") entered into a
Master Purchase Contract dated as of July 1, 1999 (the "Agreement"); and
WHEREAS, the Parties desire to terminate the Agreement and set forth
certain understandings with respect to such termination.
NOW THEREFORE, in consideration of these premises, the promises and the
mutual agreements herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Parties agree as
follows:
1. Cash Payment. Concurrent with the execution and delivery hereof, HMSR
has delivered to ARC, in immediately available funds, $600,000 (Six Hundred
Thousand Dollars).
2. Destruction of Products. Concurrent with the execution hereof HMSR will,
at its own cost, dispose of all HMSR product paid for by or in the possession of
ARC.
3. Releases.
(a) The Parties hereby fully and forever release and discharge each
other, their officers, directors, shareholders, employees, predecessors,
successors, assigns, affiliates, subsidiaries, parents, agents, representatives,
principals, investors, independent contractors, and attorneys, both past and
present (such persons or entities as to any Party hereinafter referred to as a
Party's "Related Parties"), as to any and all actual or potential claims,
actions, causes of action, suits, debts, dues, sums of money, liabilities,
accounts, reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses, damages, judgments,
extents, executions, demands and losses of any kind whatsoever, including
cross-claims, third party claims, and claims for indemnification and/or
contribution, whether or not suspected, whether or not concealed, whether or not
asserted, whether or not accrued, whether contingent or otherwise, whether
liquidated or unliquidated, whether at law or in equity, and whether known or
unknown, which they ever had, now have or may hereafter have, from the beginning
of the world through the date of the execution and delivery of this Termination
and Release, arising out of, or in connection with, the Agreement, except as to
the rights and obligations created by this Termination and Release; provided
however, notwithstanding the foregoing, Sections 7.3, 11.3, 13.1, 13.2, 16.2,
16.3 and 16.5 of the Agreement shall survive and shall be unaffected by this
Termination and Release and shall remain in full force and effect in accordance
with their terms.
(b) Notwithstanding the provisions of Section 3(a), as to any specific
individual or entity not expressly a signatory to this Termination and Release
but who or which might be covered by the language of this Section 3, such
release and discharge shall not apply to or otherwise benefit that individual or
entity in the event such individual or entity, directly or indirectly, asserts a
claim or demand or otherwise brings a suit or some other action or proceeding
against a Party respecting any claim, demand, allegation, or controversy and
asserts that by reason of this Termination and Release there exists any release
or waiver by a Party inuring to that individual or entity.
4. Subject to the provisions of this Termination and Release, upon the
execution and delivery of this Termination and Release, the Agreement is hereby
terminated and is of no further force and effect and neither Party shall have
any further rights, liabilities or obligations to the other thereunder.
5. At the cancellation or expiration of HMSR's current product liability
policy, HMSR shall procure at its sole cost and expense so-called "tail" or
"extended reporting period" endorsement or insurance ("Insurance") for the
"claims made" products liability insurance policy as further described in
Section 14(ii) of the Agreement, which insured the Filtration Systems (as
defined in the Agreement) supplied to ARC. Such "tail" or "extended reporting
period" Insurance shall be: (1) in an amount not less than $10,000,000; (2) in
full force and effect for not less than five years from the procurement of such
Insurance; and (3) the retroactive date of such Insurance shall extend at a
minimum, back to the first date upon which HMSR provided ARC a Filtration
System. The insurer providing this Insurance shall be reasonably satisfactory to
ARC; the Insurance shall meet all applicable statutory requirements and shall
continue to be written so that any insured claim covered by the policy will be
covered by that policy as primary policy coverage and it shall not be considered
contributing with, nor contributory to, nor in excess of, any insurance which
ARC may carry, and ARC shall be named as an additional insured. A fax copy of
the certificate of insurance as evidence of this Insurance shall be furnished to
ARC within ten business days upon the procurement of such "tail" or "extended
reporting period" Insurance with an original certificate of insurance furnished
to ARC within 30 days of said procurement, and said certificate shall evidence
all of the terms, conditions and amounts required herein and shall
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provide for not less than 60 days notice of cancellation or material change to
ARC. HMSR further agrees to provide ARC documentation of the payment of the
premium for this Insurance for the full term as required by this Section 5.
6. This Termination and Release shall be governed by and construed in
accordance with the laws of the State of New York.
[Signature page to follow]
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IN WITNESS WHEREOF, the parties have caused this Termination and Release
to be executed and delivered in duplicate originals by their duly authorized
representatives as of the date first set forth above.
THE AMERICAN NATIONAL RED CROSS HMSR INC.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Contracting Officer Chairman
