Exhibit 10.6
SETTLEMENT AGREEMENT AND GENERAL RELEASE
The parties to this Settlement Agreement and General Release
("Agreement") are the following:
1. X. X. Xxxxxxx, Xxxxxxx Xxxxxxxxxxx M.D., Xxxxxx Xxxxx, Xxxx
XxXxxxxx, J. Xxxxxx Xxxx M.D., and Xxxxxx Xxxxxx, all hereinafter referred to
collectively as The Shareholder Group; and,
2. x-Xxxxxxx.xxx and VidiMedix Corporation, all hereinafter referred to
collectively as The Companies
WHEREAS, it is the desire of the parties to this Agreement to settle,
once and forever, all disputes which have arisen between them, including, but
not limited to the allegations and assertions set forth in the action entitled
XXXXXXXX ET XX X. X-XXXXXXX.XXX ET AL, Cause No. 2000-47334.
NOW, THEREFORE, for and in consideration of the mutual promises and
undertakings herein set forth, the parties agree as follows: 3. The Companies
shall cause the delivery of x-Xxxxxxx.xxx stock to the The Shareholders, in the
amounts set forth below, subject to the contractual selling restrictions set
forth in the paragraph below:
X. X. Xxxxxxx 23,068
Xxxxxxx Xxxxxxxxxxx M.D. 43,280
Xxxxxx Xxxxx 43,280
Xxxx XxXxxxxx 2,163
J. Xxxxxx Xxxx M.D. 2,163
Xxxxxx Xxxxxx 22,159
4. The stock set forth above, shall be delivered after the Companies
secure the registration of said stock with the Securities & Exchange Commission.
The Companies shall make best efforts to register the stock expeditiously, and,
in no event, said stock shall be registered no later than the very next time
that any x-Xxxxxxx.xxx stock is subject to registration. The Shareholder Group
shall take delivery of said stock subject to the following selling restriction.
No member of the Shareholder Group shall sell more than 1,000 shares of Med
stock on any given trading, or no more than 10% of the original number of shares
issued on any given trading day, whichever quantity is the lesser. This shall
constitute an absolute limitation on the right of any member of the Shareholder
Group to sell stock and all stock and the proceeds therefrom shall be forfeited
if this provision is violated in any amount. Said stock shall be taken, INTER
ALIA, in lieu of all contractual rights, causes of actions, or claims of any
kind, including rights and claims arising from employment, as payment in full.
5. Each party does hereby release, acquit and forever discharge each
other party, their successors, predecessors, subsidiaries, affiliates, parents,
shareholders, partners, employees, agents, officers, directors, attorneys and
insurers from any and all claims, expenses, debts, demands, costs, contracts,
liabilities, obligations, actions and causes of action of every nature, under
any theory of law, whether common, constitutional, statutory or other of any
jurisdiction, foreign or domestic, whether known or unknown, whether in law or
in equity, which they have or had or may claim to have against any of them by
reason of any and all matters from the beginning of time to the present.
6. Each party agrees that he will not bring any claim or action before
any state or federal agency, court or other tribunal which claim relates in any
way to any and all
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matters which have to do with Defendants from the beginning of time to the
present. Each party further agrees to immediately withdraw any such claim or
action which is currently pending.
7. Notwithstanding any other provision herein, this Agreement and the
releases provided for herein shall be of no force or effect and shall not be
considered by the parties to be valid or operative until such time as each
person named in Item 3 above receives the number of shares set forth opposite
his name which have been the subject of an effective registration statement with
the character and dignity required by Item 4 above; however, upon the actual
receipt by each such individual of such number of shares, this Agreement shall
from and after such time become effective and any and all releases reflected by
this Agreement shall, at such time, become operative and in full force and
effect. In the event that any person listed in Item 3 above does not receive the
shares set forth opposite his name, and such individual desires to withdraw his
execution of this Agreement, such individual and xXxxxxxx.xxx, Inc. may proceed
with their respective claims, counterclaims and cross claims as if this
Agreement had never been executed.
8. Each party expressly waives any and all rights under Section 1542 of
the Civil Code of the State of California, and any like provision or principal
of common law in any foreign jurisdiction. Section 1542 provides as follows:
"A general release does not extend to claims which the
creditor does not know or suspect to exist in her favor at the
time of executing the release, which if known by him must have
materially affected her settlement with the debtor."
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Thus, notwithstanding the provisions of Section 1542, and for the purpose of
implementing a full and complete release and discharge of Defendants and others
released herein, each party expressly acknowledges that this Agreement is
intended to include in its effect, without limitation, claims and causes of
action which he does not know or suspect to exist in their favor at the time of
execution hereof, and that this Agreement contemplates extinguishment of all
such claims and causes of action.
9. The Shareholder Group do hereby release, acquit and forever
discharge The Companies, their successors, predecessors, subsidiaries,
affiliates, parents, shareholders, partners, employees, agents, officers,
directors, attorneys and insurers from any and all claims, expenses, debts,
demands, costs, contracts, liabilities, obligations, actions and causes of
action of every nature, under any theory of law, whether common, constitutional,
statutory or other of any jurisdiction, foreign or domestic, whether known or
unknown, whether in law or in equity, which they have or had or may claim to
have against any of them by reason of any and all matters from the beginning of
time to the present.
10. In any action brought to enforce the terms of this agreement, the
prevailing party shall NOT recover their reasonable attorneys fees.
11. This Agreement shall be and constitutes full, complete,
unconditional and immediate substitution for any and all rights, claims, demands
and causes of actions whatsoever which heretofore existed or might have existed
on behalf of Defendants.
12. All parties to this agreement warrant and represent that they have
not assigned or in any way conveyed, transferred or encumbered all or any
portion of the claims or rights covered by this Agreement.
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13. This Agreement effects the settlement of any disputes between the
parties which are denied and contested, and nothing contained herein should be
construed as an admission by any party of any liability of any kind with respect
thereto. All such liability is expressly denied.
14. All parties to this agreement have carefully read and fully
understand all of the provisions of this Agreement, have consulted with any
representative with whom they desire to do so, and represent that they are
entering into this Agreement voluntarily.
15. This Agreement shall be construed in accordance with, and governed
by, the laws of the State of California.
16. This Agreement is the only, sole, entire and complete agreement of
the parties relating in any way to the subject matter hereof. No statements,
promises or representations have been made by any party to any other, or relied
upon, and no consideration has been offered, promised, expected or held out
other than as may be expressly provided herein. The parties to this agreement
promise never to assert that this agreement was induced by fraud, deceit, or
that it resulted from negligent misrepresentation, mistake or duress. The
parties to this agreement waive all such claims.
17. In the event that any provision of this Agreement shall be held to
be void, voidable or unenforceable, the remaining portions hereof shall remain
in full force and effect.
18. This Agreement may be executed and delivered in two or more
counterparts, each of which when so executed and delivered shall be the
original, but such counterparts together shall constitute but one and the same
instrument.
19. The parties consent to the court in this matter retaining
jurisdiction over the parties for the limited purpose of enforcing this
settlement, and, the parties agree and consent
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to entry of a judgment on this settlement if any party defaults on his or its
obligations under this settlement.
IN WITNESS WHEREOF, the parties have executed this instrument on the
dates indicated below.
DATED:
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X.X. Xxxxxxx
DATED:
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Xxxxxxx Xxxxxxxxxxx M.D.
DATED:
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Xxxxxx Xxxxx
DATED:
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Xxxx XxXxxxxx
DATED:
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J. Xxxxxx Xxxx M.D.
DATED:
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Xxxxxx Xxxxxx
DATED:
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x-Xxxxxxx.xxx
DATED:
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VidiMedix Corp.
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