EXHIBIT 10.3
GENERAL RELEASE OF CLAIMS
THIS GENERAL RELEASE OF CLAIMS (this "RELEASE") is executed and delivered as of
September 23, 2003, by and between Endocare, Inc., a Delaware corporation (the
"COMPANY"), and the individual named on the signature page hereof (the
"RELEASOR"). Each of the Company and the Releasor is referred to herein as a
"PARTY," and, collectively, as the "PARTIES."
RECITALS
WHEREAS, concurrently with the execution of this Release, the Company
and the Releasor are executing and delivering a Separation Agreement (the
"SEPARATION AGREEMENT");
WHEREAS, pursuant to the terms and conditions of the Separation
Agreement, the Releasor is entitled to a cash payment and certain other
benefits, subject to, among other things, Releasor's execution and delivery of
this Release; and
WHEREAS, by execution hereof, the Releasor acknowledges and agrees
that: (i) this Release is a compromise of doubtful and disputed claims, if any,
which remain untested; (ii) there has not been a trial or adjudication of any
issue of law or fact herein; (iii) the terms and conditions of this Release are
in no way to be construed as an admission of liability on the part of the
Company; and (iv) the Company denies any liability and intends merely to avoid
litigation with this Release;
NOW, THEREFORE, in consideration of the foregoing recitals, and the
representations, warranties, covenants and promises contained herein, the
adequacy and sufficiency of which are hereby acknowledged, the Parties agree as
follows:
AGREEMENT
1. RELEASE OF THE COMPANY BY THE RELEASOR.
(a) The Releasor does hereby unconditionally, irrevocably and
absolutely release and discharge the Company, and its affiliates, directors,
officers, employees, agents, attorneys, representatives, stockholders, insurers,
divisions, successors and/or assigns and any related holding, parent or
subsidiary corporations, from any and all loss, liability, claims, costs
(including, without limitation, attorneys' fees), demands, causes of action, or
suits of any type, whether in law and/or in equity, related directly or
indirectly or in any way connected with any transaction, affairs or occurrences
between them and arising on or prior to the date of this Release, including, but
not limited to, the Releasor's employment with the Company, the termination of
said employment and claims of emotional or physical distress related to such
employment or termination. This Release specifically applies to any claims for
discrimination in employment, including, without limitation, any claims arising
under any statutes or laws that govern discrimination in employment.
(b) The Releasor irrevocably and absolutely agrees that he will not
prosecute nor allow to be prosecuted on his behalf in any administrative agency,
whether federal or state, or in any court, whether federal or state, any claim
or demand of any type related to any of the matters released above, it being an
intention of the Parties that with the execution by the Releasor of this
Release, the Company, its officers, directors, employees, agents, attorneys,
representatives, successors and/or assigns, and any related holding, parent and
subsidiary corporations, will be absolutely, unconditionally and forever
discharged of and from all obligations to or on behalf of the Releasor related
in any way to the matters released above.
(c) The Releasor does expressly waive all of the benefits and rights
granted to him pursuant to any applicable law or regulation to the effect that:
A general release does not extend to claims which the creditor
does not know of or suspect to exist in his favor at the time
of executing the release, which if known by him must have
materially affected his settlement with the debtor.
(d) The Releasor does certify that he has read all of this Release, and
that he fully understands all of the same. The Releasor hereby expressly agrees
that this Release shall extend and apply to all unknown, unsuspected and
unanticipated injuries and damages, as well as those that are now known.
(e) The Releasor further declares and represents that no promise,
inducement or agreement not herein expressed has been made to him and that this
Release contains the full and entire agreement between the Parties relating to
the Releasor's release of claims, and that the terms of this Release are
contractual and not a mere recital.
2. REVIEW. The Releasor represents, acknowledges and agrees that: (i)
the Company has advised him, in writing, to discuss this Release with an
attorney, and that to the extent, if any, that the Releasor has desired, the
Releasor has done so; (ii) that no promise, representation, warranty or
agreements not contained herein have been made by or with anyone to cause him to
sign this Release; (iii) that he has read this Release in its entirety, and
fully understands and is aware of its meaning, intent, contents and legal
effect; and (iv) he is executing this Release voluntarily, and free of any
duress or coercion.
3. FULL AND COMPLETE DEFENSE. This Release may be pleaded as a full and
complete defense and may be used as the basis for an injunction against any
action, suit or proceeding that may be prosecuted, instituted or attempted by
the Releasor against the Company.
4. AMENDMENTS, ETC. This Release may not be amended or waived except by
a writing signed by the Releasor and by a duly authorized officer of the
Company. Failure to exercise any right under this Release shall not constitute a
waiver of such right. Any waiver of any breach of this Release shall not operate
as a waiver of any subsequent breaches. All rights or remedies specified for a
Party herein shall be cumulative and in addition to all other rights and
remedies of the Party hereunder or under applicable law.
5. ASSIGNMENT; BINDING EFFECT. The Releasor agrees that he shall have
no right to assign and shall not assign or purport to assign any rights or
obligations under this Release. This Release may be assigned or transferred by
the Company; and nothing in this Release shall prevent the consolidation, merger
or sale of the Company or a sale of any or all or substantially all of its
assets. Subject to the foregoing restriction on assignment by Employee, this
Release shall inure to the benefit of and be binding upon each of the Parties;
the affiliates, officers, directors, agents, successors and assigns of the
Company; and the heirs, devisees, spouses, legal representatives and successors
of Employee.
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6. SEVERABILITY. If any provision of this Release shall be held by a
court or arbitrator to be invalid, unenforceable or void, such provision shall
be enforced to the fullest extent permitted by law, and the remainder of this
Release shall remain in full force and effect. In the event that the time period
or scope of any provision is declared by a court or arbitrator of competent
jurisdiction to exceed the maximum time period or scope that such court or
arbitrator deems enforceable, then such court or arbitrator shall reduce the
time period or scope to the maximum time period or scope permitted by law.
7. GOVERNING LAW. This Release shall be governed by and construed in
accordance with the internal laws of the State of California, without regard to
conflicts of law principles.
8. INTERPRETATION. This Release shall be construed as a whole,
according to its fair meaning, and not in favor of or against any Party.
Sections and section headings contained in this Release are for reference
purposes only, and shall not affect in any manner the meaning or interpretation
of this Release. Whenever the context requires, references to the singular shall
include the plural and the plural the singular.
9. COUNTERPARTS. This Release may be executed in any number of
counterparts, each of which shall be deemed an original of this Release, but all
of which together shall constitute one and the same instrument.
10. AUTHORITY. Each Party represents and warrants that such Party has
the right, power and authority to enter into and execute this Release and to
perform and discharge all of the obligations hereunder; and that this Release
constitutes the valid and legally binding agreement and obligation of such Party
and is enforceable in accordance with its terms.
11. ENTIRE AGREEMENT. This Release is intended to be the final,
complete and exclusive statement of the terms set forth herein and may not be
contradicted by evidence of any prior or contemporaneous statements or
agreements.
12. OPPORTUNITY TO CONSULT LEGAL COUNSEL. The Releasor acknowledges
that he has had the opportunity to consult legal counsel concerning this
Release, that he has read and understands this Release, that he is fully aware
of its legal effect and that he has entered into this Release freely based on
his own judgment and not on any representations or promises other than those
contained in this Release.
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IN WITNESS WHEREOF, the Parties hereby execute this Release as of the
date first above written.
ENDOCARE, INC. RELEASOR:
By: /s/ Xxxxxxx Xxxxx /s/ Xxxx Xxxxx
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Name: Xxxxxxx Xxxxx Signature
Title: President
Xxxx Xxxxx
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Print Name
[SIGNATURE PAGE TO GENERAL RELEASE OF CLAIMS]
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