Exhibit 10.4
SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE
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This Settlement Agreement and Mutual General Release (the "Agreement")
is entered into on the 10th day of August, 2001 by and among Ultra Open MRI of
St. Petersburg, Inc., Ultra Open MRI of Tampa, Inc., Ultra Open MRI Corporation,
Ultra Diagnostics, LLC (collectively, the "Subsidiaries"), Ultra Open MRI
Holding Corp. ("Ultra Holding"), Miracor Diagnostics, Inc. ("Miracor"),
Xxxxxxxxx X. Xxxxxxxx ("Xxxxxxxx"), MedSource Holdings, Ltd. ("MedSource"),
Jamac Enterprises, Ltd. ("Jamac"), and Xxxx XxXxxxxxx ("McCoskrie"), all
collectively referred to as "the Parties."
WHEREAS, Xxxxxxxx owns or controls MedSource and McCoskrie owns or
controls Jamac ;
WHEREAS, MedSource and Jamac owned 100% of the outstanding stock in the
Subsidiaries;
WHEREAS, Miracor desired to acquire an 80% ownership interest in the
Subsidiaries;
WHEREAS, MedSource and Jamac formed Ultra Holding to consolidate their
ownership interest in the Subsidiaries;
WHEREAS, on February 9, 2000, Miracor and Ultra Holding entered into an
Agreement and Plan of Merger (the "Merger Agreement") pursuant to which Miracor
acquired 80% of the outstanding stock of Ultra Holding in exchange for the
issuance of 1,267,200 shares of Miracor stock to MedSource and 1,267,200 shares
of Miracor stock to Jamac;
WHEREAS, in connection with the Merger Agreement, Xxxxxxxx and
McCoskrie both entered into Employment Agreements with Ultra Holding dated
February 9, 2000 (the "Employment Agreements");
WHEREAS, in connection with the Merger Agreement, Xxxxxxxx and
McCoskrie both entered into Non-Competition and Confidentiality Agreements with
Ultra Holding dated February 9, 2000 (the "Non-Competition Agreements");
WHEREAS, in connection with the Merger Agreement, MedSource and Jamac
both entered into Stock Purchase Agreements with Miracor dated February 9, 2000
(the "Stock Purchase Agreements");
WHEREAS, in connection with the Merger Agreement, Miracor, Ultra
Holding, and Xxxx XxXxxxxxx entered into a Security Agreement dated February 9,
2000 (the "Security Agreement");
WHEREAS, in connection with the Non-Competition Agreement, Miracor
issued three Convertible Notes to McCoskrie maturing August 9, 2000, November 9,
2000, and November 9, 2001 (the "McCoskrie Notes");
WHEREAS, in connection with the Non-Competition Agreement, Miracor
issued three Convertible Notes to Xxxxxxxx maturing August 9, 2000, November 9,
2000, and November 9, 2001 (the "Xxxxxxxx Notes");
WHEREAS, in connection with the Merger Agreement, Bergmann, McCoskrie,
and MedSource entered into an Indemnification Agreement with Miracor dated
February 9, 2000 (the "Indemnification Agreement");
WHEREAS, in connection with the merger, Miracor and Ultra Holding
entered into a letter agreement dated February 26, 2000 (the "Management
Agreement"). The Employment Agreements, Non-Competition Agreements, Stock
Purchase Agreements, McCoskrie Notes, Xxxxxxxx Notes, Indemnification Agreement,
Security Agreement, and Management Agreement are referred to herein as the
"Ancillary Agreements".
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WHEREAS, disputes arose between Miracor and Xxxxxxxx and McCoskrie over
the payment of the Xxxxxxxx Notes and McCoskrie Notes and the ownership and
control of Ultra Holding and the Subsidiaries;
WHEREAS, on or about April 25, 2001, Miracor filed suit against
Xxxxxxxx and McCoskrie in Hillsborough County, Florida in an action styled
Miracor, et al. x. Xxxxxxxx and McCoskrie, case number 01-6299 (the "Miracor
Action");
WHEREAS, on or about May 1, 2001, Xxxxxxxx filed suit against Miracor
in Hillsborough County, Florida in an action styled Xxxxxxxxx X. Xxxxxxxx v.
Miracor Diagnostics, Inc., case number 01-003632 (the "Xxxxxxxx Action");
WHEREAS, the Xxxxxxxx Action was consolidated into the Miracor Action
by Order of the Court;
WHEREAS, the Parties desire to finally resolve their disputes and
dispose of any and all claims between the Parties;
NOW, THEREFORE, in consideration of the mutual agreements, undertakings
and representations contained in this document and other good and valid
consideration, the receipt and sufficiency of which is hereby acknowledged by
the Parties, the Parties agree as follows:
1. Contemporaneously herewith, Ultra Holding will pay to the trust
account of Akerman, Senterfitt the total sum of $30,000.
2. Within thirty (30) days from the date hereof, Miracor shall deliver
to Xxxxxxxx and McCoskrie: all accounting records relating to the Ultra entities
after February, 2000, (including but not limited to financial statements, check
registers, general ledgers, accounts payable ledgers, payroll ledgers, payroll
tax returns, and bank statements); all shares of stock (the "Ultra Stock") in
Ultra Holding or the Subsidiaries issued to Miracor properly endorsed, free and
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clear of any liens or encumbrances; and all originals of corporate books and
corporate documents relating to Ultra Holding and the Subsidiaries, including,
but not limited to, Articles of Incorporation, Amended Articles of
Incorporation, Annual Reports, By-Laws, Operating Agreements, stock
certificates, stock transfer records, minutes of shareholder meetings, meetings
of director meetings, shareholder resolutions, director resolutions, and
corporate seals. As to the Ultra Stock, Miracor represents and warrants that it
has not pledged, hypothecated, sold or otherwise encumbered the Ultra Stock. As
to the Ultra Stock, Miracor agrees to execute any documents reasonably necessary
to effectuate a complete and lawful transfer of 40 shares of the Ultra Holding
Stock to MedSource and 40 shares of Ultra Holding stock to Jamac. Upon Xxxxxxxx
and McCoskrie's receipt of the foregoing, Akerman, Senterfitt shall disburse
$10,000 from its trust account to Miracor.
3. If, within thirty (30) days from the date hereof, Xxxxxxxx and
McCoskrie are able to obtain from Toshiba America Medical Credit documentation
releasing Miracor from Miracor's corporate guaranty of a lease entered into
between Toshiba and Ultra Open MRI of St. Petersburg, then Akerman, Senterfitt
shall disburse the remaining $20,000 in its trust account to Ultra Holding. A
copy of this lease is attached hereto as Exhibit "A." If Xxxxxxxx and McCoskrie
are unable to obtain such release within such thirty (30) day period, then
Akerman, Senterfitt shall disburse the remaining $20,000 to Miracor. Xxxxxxxx
and McCoskrie represent and warrant that Exhibit "A" is the only lease
guaranteed by Miracor on behalf of Ultra Holding. Ultra Holding, the
Subsidiaries, Xxxxxxxx, and McCoskrie further represent that they have taken no
action, nor will they take any action, to effectuate any other leases or
guarantees that were signed by M. Xxx Xxxxxxxx for the benefit of Ultra Holding
or the Subsidiaries prior to March 9, 2001. Copies of two such leases are
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attached as composite Exhibit B. As to Exhibit "B," Bergmann, McCoskrie, Ultra
Holding and the Subsidiaries represent that such leases are not now in effect.
If Xxxxxxxx and McCoskrie are unsuccessful in obtaining a release for Miracor of
its obligations vis-a-vis Exhibit "A," then Bergmann, McCoskrie, Ultra Holding
and the Subsidiaries will indemnify Miracor, including attorneys' fees, and hold
Miracor harmless from any and all claims arising from, or relating to, Miracor's
guarantee of the lease. If Xxxxxxxx and McCoskrie are unsuccessful in obtaining
such release and a lease guaranteed by Miracor is in default for more than 60
days, Bergmann, McCoskrie, Ultra Holding, and the Subsidiaries will use best
efforts, in conjunction with the lessor, to assign all of their rights to the
equipment and the lease, including possession, and all paperwork concerning the
lease to Miracor.
4. Within thirty (30) days from the date hereof, Xxxxxxxx/MedSource and
McCoskrie/Jamac will each deliver to Miracor 1,267,200 shares (collectively the
"Miracor Stock") of Miracor Restricted 144 Common Stock (for a total of
2,534,400 shares) properly endorsed, free and clear of any liens and
encumbrances. As to the Miracor Stock, Bergmann, McCoskrie, MedSource, and Jamac
represent and warrant that they have not pledged, hypothecated, sold or
otherwise encumbered the Miracor Stock. As to the Miracor Stock, Bergmann,
McCoskrie, Jamac, and MedSource agree to execute any documents reasonably
necessary to effectuate a complete and lawful transfer of the Miracor Stock to
Miracor. Xxxxxxxx and McCoskrie further represent and warrant that neither the
McCoskrie Notes, nor the Xxxxxxxx Notes, have been pledged, hypothecated, sold
assigned, or otherwise encumbered. Contemporaneous with the delivery of the
Miracor stock, Xxxxxxxx and McCoskrie will deliver the original Xxxxxxxx Notes
and McCoskrie Notes marked "paid in full" and initialed by the respective
obligee.
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5. Miracor shall prepare and file Miracor's federal and state income
tax returns for the period ending December 31, 2000 and for the period January
1, 2001 through the end of the consolidation period on a consolidated basis
including Ultra Holding and the Subsidiaries and shall provide Xxxxxxxx and
McCoskrie copies of such returns within thirty (30) days from their date of
filing. Miracor shall indemnify, defend, and hold Xxxxxxxx and McCoskrie and
Ultra Holding and the Subsidiaries harmless from any tax liability associated
with all such returns. Bergmann, McCoskrie, and Ultra Holding will provide
Miracor with access to the corporate books, ledgers, and records relating to
Ultra Holding and the Subsidiaries for the period February 9, 2000 through
February 28, 2001 upon reasonable notice and during normal business hours. In
addition, Bergmann, McCoskrie, and Ultra Holding agree to cooperate with any and
all audits relating to Miracor's ownership of Ultra Holding and the Subsidiaries
concerning the time period between February 9, 2000 and February 28, 2001.
6. On 20 days advance written request by Ultra Holding, Miracor will
provide to Ultra Holding the copies of any checks issued by Ultra Holding or any
Subsidiary during the period February 9, 2000 through March 15, 2001 that are in
the possession of Miracor as of July 31, 2001, including any checks bearing Xxxx
XxXxxxxxx'x signature. Ultra Holding agrees to return checks to Miracor within
15 days of receipt.
7. No party hereto shall make any disparaging remarks regarding any
other party hereto.
8. Miracor, for and on behalf of itself and its successors and assigns,
hereby releases and discharges Bergman, McCoskrie, Ultra Holding, the
Subsidiaries, MedSource, and Jamac, their agents, representatives, servants,
employees, attorneys, officers, directors, shareholders, insurers, and direct
and indirect parents, subsidiaries, and affiliates, and their successors and
assigns from any and all actions, obligations, debts, losses in revenue,
damages, costs, dues, claims, choses in action and demands of every kind or
nature, known or unknown, which it had, now has, or may have based on, arising
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out of, or relating to any act, omission, transaction, event or circumstance
occurring on or before the date of this Agreement, including but not limited to
those relating to or arising out of the Merger Agreement, the Ancillary
Agreements, and the claims asserted in the Miracor Action. None of the Parties
release the other Parties from any breach or obligation arising from this
Agreement.
9. Bergmann, McCoskrie, Ultra Holding, the Subsidiaries, MedSource, and
Jamac, for and on behalf of themselves and their successors and assigns, hereby
release and discharge Miracor, its agents, representatives, servants, employees,
officers, directors, shareholders, insurers, and direct and indirect parents,
subsidiaries, and affiliates, and their successors and assigns from any and all
actions, obligations, debts, losses in revenue, damages, costs, dues, claims,
choses in action and demands of every kind or nature, known or unknown, which
they had, now have, or may have based on, arising out of, or relating to any
act, omission, transaction, event or circumstance occurring on or before the
date of this Agreement, including but not limited to those relating to or
arising out of the Merger Agreement, the Ancillary Agreements, and the claims
asserted in the Xxxxxxxx Action. None of the Parties release the other Parties
from any breach of obligation arising from, or representation within this
Agreement.
10. Within 5 days from the execution hereof, Miracor shall dismiss the
Miracor Action with prejudice and Xxxxxxxx shall dismiss the Xxxxxxxx Action
with prejudice. The Parties will jointly seek an order from the Court confirming
the dismissals and retaining jurisdiction to enforce this Agreement.
11. The Parties hereto agree that if there is a dispute concerning the
funds held in escrow by Akerman, Senterfitt, then Akerman, Senterfitt shall have
the right to file an interpleader action and deposit the funds in the registry
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of the Court without liability to any party hereto. Akerman, Senterfitt shall be
entitled to recover its attorney's fees and costs in filing such action and with
respect to any claim asserted against it arising from its role as escrow agent
from the non-prevailing party. Miracor agrees that in the event of such
litigation, it shall not seek to disqualify Akerman, Senterfitt from
representing Bergmann, McCoskrie, Ultra Holding, or the Subsidiaries in any
subsequent litigation.
12. The Merger Agreement and Ancillary Agreements are hereby terminated
and no party shall have any further rights or obligations thereunder.
13. Miracor represents and warrants it has not encumbered any assets of
Ultra Holding or entered into any agreement of any kind on behalf of Ultra
Holding or the Subsidiaries that was not also known to or executed by McCoskrie
or Xxxxxxxx, requested by McCoskrie or Xxxxxxxx (see Exhibit "A"), or ratified
or accepted by McCoskrie or Xxxxxxxx on behalf of Ultra Holding or the
Subsidiaries. Further, Miracor represents and warrants that, after March 9,
2001, neither it nor any of its officers, directors, employees, or agents
encumbered the assets of Ultra Holding or the Subsidiaries in any way or took
any action that obligates or exposes Ultra Holding or the Subsidiaries to
liability.
14. Xxxxxxxx and McCoskrie represent and warrant that they have not
taken any action that obligates or exposes Miracor to liability with the
exception of Exhibit "A."
15. The Parties expressly warrant to each other that they have not
previously assigned, transferred or conveyed the claims disposed of by this
Agreement.
16. This Agreement has been negotiated and drafted by counsel for the
Parties and, therefore, it shall not be construed in favor of or against any of
the Parties hereto. All Parties represent that they have had the opportunity to
consult with counsel at all phases of the negotiation of this Agreement and the
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preceding litigation. All Parties acknowledge that they fully understand all
terms of this Agreement. All parties understand the effect of dismissing the
Miracor Litigation and Xxxxxxxx Litigation with prejudice.
17. The Parties affirmatively state that no representation, promise, or
agreement relating to this settlement not expressed in this Agreement has been
made to any of the Parties, and that this Agreement contains all of the terms
relating to this settlement, which are contractual in nature and not merely
recitals, and may not be modified or changed, except in a writing signed by all
Parties. This Agreement supercedes any prior Agreements between the Parties.
18. This Agreement is entered into by the Parties to resolve disputed
claims, and neither this Agreement nor the compromise and settlement provided
herein nor any statement made, action taken, or document prepared in connection
with the negotiation, execution and implementation of this Agreement shall be
deemed or be construed as an admission on the part of any released party and
that each released party denies any such liability.
19. This Agreement shall inure to the benefit of, and shall bind each
Party's successors, assigns, officers, directors, partners, shareholders,
agents, insurers, associates, employees, and representatives.
20. This Agreement shall be governed by and construed under the laws of
the State of Florida. The Parties agree that the jurisdiction for the
enforcement of this Agreement or the interpretation of its terms shall be in
Hillsborough County, Florida. In the event of litigation arising under this
Agreement, the prevailing party shall be entitled to an award of costs and
attorney's fees, whether incurred at trial, on appeal, or in any bankruptcy
proceeding. The Parties waive any right to a jury trial.
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21. The Parties shall each bear their own costs and attorneys' fees
incurred in connection with the Miracor Action, the Xxxxxxxx Action, or the
preparation of this Agreement.
22. The undersigned Parties agree that this document can be executed in
counterparts, and will be as effective and binding as if executed as a whole.
The effective date of this Settlement Agreement shall be the date it is signed
by the last party hereto.
23. Any individual executing this agreement on behalf of a corporate
entity, L.L.C., or partnership represents that he has the authority to enter
into, and bind, the entity for which he is signing.
IN WITNESS WHEREOF, the Parties have executed this Settlement Agreement
and Mutual Release this _____ of _________________, 2001.
Signed and delivered ULTRA OPEN MRI OF ST. PETERSBURG, INC.
in the presence of:
_____________________________ By:___________________________________
_____________________________ As its _______________________________
STATE OF _________________ )
COUNTY OF ________________ )
The foregoing instrument was acknowledged before me this ______ day of
____________, 2001, by _______________________, as _____________________ of
Ultra Open MRI of St. Petersburg, Inc., _____ who is personally known to me or
_____ who has produced ________________________ as identification (check one).
______________________________________
Print Name:__________________________
Notary Public, State of Florida
My Commission Expires:
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Signed and delivered ULTRA OPEN MRI OF TAMPA, INC.
in the presence of:
_____________________________ By:___________________________________
_____________________________ As its _______________________________
STATE OF __________________)
COUNTY OF ________________ )
The foregoing instrument was acknowledged before me this ______ day of
____________, 2001, by _______________________, as _____________________ of
Ultra Open MRI of Tampa, Inc., _____ who is personally known to me or _____ who
has produced ________________________ as identification (check one).
______________________________________
Print Name:__________________________
Notary Public, State of Florida
My Commission Expires:
Signed and delivered ULTRA OPEN MRI CORPORATION in the presence of:
_____________________________ By:____________________________________
_____________________________ As its _______________________________
STATE OF _________________ )
COUNTY OF ________________ )
The foregoing instrument was acknowledged before me this ______ day of
____________, 2001, by _______________________, as _____________________ of
Ultra Open MRI Corporation, _____ who is personally known to me or _____ who has
produced ________________________ as identification (check one).
______________________________________
Print Name:__________________________
Notary Public, State of Florida
My Commission Expires:
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Signed and delivered ULTRA DIAGNOSTICS, LLC
in the presence of:
_____________________________ By:_________________________________
_____________________________ As its _____________________________
STATE OF _________________ )
COUNTY OF ________________ )
The foregoing instrument was acknowledged before me this ______ day of
____________, 2001, by _______________________, as _____________________ of
Ultra Diagnostics, LLC, _____ who is personally known to me or _____ who has
produced ________________________ as identification (check one).
______________________________________
Print Name:__________________________
Notary Public, State of Florida
My Commission Expires:
Signed and delivered ULTRA OPEN MRI HOLDING CORP.
in the presence of:
_____________________________ By:_________________________________
_____________________________ As its _____________________________
STATE OF _________________ )
COUNTY OF ________________ )
The foregoing instrument was acknowledged before me this ______ day of
____________, 2001, by _______________________, as _____________________ of
Ultra Open MRI Holding Corp., _____ who is personally known to me or _____ who
has produced ________________________ as identification (check one).
______________________________________
Print Name:__________________________
Notary Public, State of Florida
My Commission Expires:
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Signed and delivered MIRACOR DIAGNOSTICS, INC.
in the presence of:
_____________________________ By:_________________________________
_____________________________ As its _____________________________
STATE OF _________________ )
COUNTY OF ________________ )
The foregoing instrument was acknowledged before me this ______ day of
____________, 2001, by _______________________, as _____________________ of
Miracor Diagnostics, Inc., _____ who is personally known to me or _____ who has
produced ________________________ as identification (check one).
______________________________________
Print Name:__________________________
Notary Public, State of Florida
My Commission Expires:
Signed and delivered
in the presence of:
----------------------------- ------------------------------------
XXXXXXXXX X. XXXXXXXX
-----------------------------
STATE OF _________________ )
COUNTY OF ________________ )
The foregoing instrument was acknowledged before me this ______ day of
____________, 2001, by Xxxxxxxxx X. Xxxxxxxx, _____ who is personally known to
me or _____ who has produced ________________________ as identification (check
one).
______________________________________
Print Name:__________________________
Notary Public, State of Florida
My Commission Expires:
Signed and delivered
in the presence of:
----------------------------- ------------------------------------
XXXX XXXXXXXXX
-----------------------------
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STATE OF _________________ )
COUNTY OF ________________ )
The foregoing instrument was acknowledged before me this ______ day of
____________, 2001, by Xxxx XxXxxxxxx, _____ who is personally known to me or
_____ who has produced ________________________ as identification (check one).
______________________________________
Print Name:__________________________
Notary Public, State of Florida
My Commission Expires:
STATE OF _________________ )
COUNTY OF ________________ )
The foregoing instrument was acknowledged before me this ______ day of
___________, 2001, by _______________________, as ____________________ of
MedSource Holdings, Ltd., _____ who is personally known to me or _____ who has
produced __________________________ as identification (check one).
______________________________________
Print Name:__________________________
Notary Public, State of Florida
My Commission Expires:
Signed and delivered MEDSOURCE HOLDINGS, LTD.
in the presence of:
______________________________ By:_________________________________
______________________________ As its ______________________________
STATE OF _________________ )
COUNTY OF ________________ )
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The foregoing instrument was acknowledged before me this ______ day of
___________, 2001, by _______________________, as ____________________ of Jamac
Enterprises, Ltd., _____ who is personally known to me or _____ who has produced
__________________________ as identification (check one).
______________________________________
Print Name:__________________________
Notary Public, State of Florida
My Commission Expires:
Signed and delivered JAMAC ENTERPRISES, LTD.
in the presence of:
______________________________ By:_________________________________
______________________________ As its ______________________________
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