RELEASE AND SETTLEMENT AGREEMENT Dated: April __, 2009
Exhibit
10.2
Dated:
April __, 2009
The
foregoing RELEASE AND
SETTLEMENT AGREEMENT (the “AGREEMENT”), dated April __,
2009, is hereby entered into by and between GenMed Holding Corp., a Nevada
corporation (the “COMPANY”), ▇▇▇▇▇ ▇▇ ▇▇▇▇ (“▇▇ ▇▇▇▇”), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
(“BLIJLEVEN”), ▇.▇. ▇▇▇▇▇▇▇ Beheermaatschappij B.V. (“▇▇▇▇▇▇▇”) and
Medical Network Holding BV (“MNH,” and collectively with ▇▇ ▇▇▇▇, BLIJLEVENS and
▇▇▇▇▇▇▇, the “DUTCH SHAREHOLDERS”), Total Look, BV (“TOTAL LOOK”), London
Finance Group, Ltd., a California corporation (“LFG”), Dojo Enterprises, LLC, a
Nevada limited liability company (“DOJO”), Hyperion Fund, L.P., a Colorado
limited partnership (“HYPERION”), The Palisades Capital, LLC 401(k) Profit
Sharing Trust (“PALISADES”), The Morpheus 2005 Trust dated December ▇, ▇▇▇▇
(“▇▇▇▇▇▇▇▇”), ▇▇▇▇▇▇ Partners, LLC (“▇▇▇▇▇▇”), Picasso, LLC (“PICASSO”) and
Glacier, LLC (“GLACIER,” and, together with DOJO, HYPERION, PALISADES, MORPHEUS,
▇▇▇▇▇▇ and PICASSO, the “CALIFORNIA SHAREHOLDERS”).
RECITALS
WHEREAS, the parties to this
AGREEMENT desire to
amend, by written agreement, certain agreements and contracts that the parties
hereto entered into with each and one another on April 17, 2008. Such agreements
and contracts hereby being amended are the General Release and Settlement
Agreement, dated April 17, 2008, (the “GRSA”), a Consulting
Agreement, dated April 17, 2008, between the COMPANY and LFG (the “CONSULTING AGREEMENT”), and
the Stock Exchange Agreement, dated April 17, 2008, (the “SEA”), as filed with the
United States Securities and Exchange Commission on the Form 8-K filed by the
COMPANY on May 2, 2008.
WHEREAS, the CALIFORNIA
SHAREHOLDERS own shares of the COMPANY’S common stock and warrants to purchase
shares of the COMPANY’S common stock, received pursuant to the GRSA as follows:
|
Shareholder
|
Common Stock
|
Warrants to Purchase
Shares of Common Stock
|
||||||
|
DOJO
|
2,040,000 | 1,020,000 | ||||||
|
HYPERION
|
2,720,000 | 1,360,000 | ||||||
|
PALISADES
|
2,720,000 | 1,360,000 | ||||||
|
MORPHEUS
|
2,720,000 | 1,360,000 | ||||||
|
▇▇▇▇▇▇
|
4,080,000 | 2,040,000 | ||||||
|
PICASSO
|
4,080,000 | 2,040,000 | ||||||
|
GLACIER
|
4,080,000 | 2,040,000 | ||||||
WHEREAS, TOTAL LOOK owns
shares of the COMPANY’S common stock and warrants to purchase shares of the
COMPANY’S common stock, received pursuant to the GRSA, as follows:
|
Shareholder
|
Common Stock
|
Warrants to Purchase
Shares of Common Stock
|
||||||
|
TOTAL LOOK
|
49,500,000 | 26,250,000 | ||||||
WHEREAS, LFG owns shares of
the COMPANY’S common stock and warrants to purchase shares of the COMPANY’S
common stock, received pursuant to the GRSA, as follows:
|
Shareholder
|
Common Stock
|
Warrants to Purchase
Shares of Common Stock
|
||||||
|
LFG
|
3,060,000 | 1,530,000 | ||||||
WHEREAS, LFG also owns shares
of the COMPANY’S common stock and warrants to purchase shares of the Company’s
common stock, received pursuant to the CONSULTING AGREEMENT as
follows:
|
Shareholder
|
Common Stock
|
Warrants to Purchase
Shares of Common Stock
|
||||||
|
LFG
|
2,400,000 | 2,400,000 | ||||||
WHEREAS, the DUTCH
SHAREHOLDERS own shares of the COMPANY’S common stock and warrants to purchase
shares of the COMPANY’S common stock received pursuant to the SEA as follows:
|
Shareholder
|
Common Stock
|
Warrants to Purchase
Shares of Common Stock
|
||||||
|
BOUWENS
|
30,000,000 | 15,000,000 | ||||||
|
MNH
|
6,000,000 | 3,000,000 | ||||||
|
▇▇
▇▇▇▇
|
6,000,000 | 3,000,000 | ||||||
|
BLIJLEVEN
|
6,000,000 | 3,000,000 | ||||||
WHEREAS, the parties herein,
by this AGREEMENT, have
agreed to amend the GRSA
and the SEA, and
to rescind the CONSULTING
AGREEMENT, pursuant to the terms herein.
WHEREAS, all parties herein
desire to execute this AGREEMENT to settle all
accounts and disputes between and among such parties as provided herein to avoid
the expense and delay of litigation.
AGREEMENT
THEREFORE, in consideration of
the mutual promises and agreements herein contained and acknowledged by the
parties hereto, the parties hereby agree as follows:
Section
1. Warrants
It is hereby agreed by the COMPANY, the
CALIFORNIA SHAREHOLDERS, TOTAL LOOK, LFG, and the DUTCH SHAREHOLDERS that all
warrants to purchase shares of common stock of the COMPANY, issued pursuant to
the GRSA, the CONSULTING AGREEMENT, and the
SEA are, upon execution
of this AGREEMENT,
cancelled. Thus upon execution of this AGREEMENT, all warrants to
purchase shares of common stock of the COMPANY issued to DOJO, HYPERION,
PALISADES, MORPHEUS, BURTON, PICASSO, GLACIER, TOTAL LOOK, LFG, ▇▇ ▇▇▇▇,
BLIJLEVENS, BOUWENS, and MNH will be cancelled, and each such party will neither
own, nor have any interest in, any warrants to purchase shares of common stock
of the COMPANY.
|
|
(a)
|
By
executing this AGREEMENT, thus agreeing
to the cancelation of the warrants to purchase common stock of the COMPANY
issued pursuant to the GRSA, The CALIFORNIA
SHAREHOLDERS and LFG represent that they have not previously sold,
exchanged, gifted, or otherwise transferred or encumbered in any way, any
of their ownership, rights, or other interests in such warrants as were
issued to each of them pursuant to the GRSA.
|
|
|
(b)
|
By
executing this AGREEMENT, thus agreeing
to the cancelation of the warrants to purchase common stock of the COMPANY
issued pursuant to the GRSA, TOTAL LOOK
represents that it has not previously sold, exchanged, gifted, or
otherwise transferred or encumbered in any way, any of its ownership,
rights, or other interests in such warrants as were issued to TOTAL LOOK
pursuant to the GRSA.
|
|
|
(c)
|
By
executing this AGREEMENT, thus agreeing
to the cancelation of the warrants to purchase common stock of the COMPANY
issued pursuant to the CONSULTING AGREEMENT,
LFG represents that it has not previously sold, exchanged, gifted, or
otherwise transferred or encumbered in any way, any of its ownership,
rights, or other interests in such warrants as were issued to LFG pursuant
to the CONSULTING
AGREEMENT.
|
|
|
(d)
|
By
executing this AGREEMENT, thus agreeing
to the cancelation of the warrants to purchase common stock of the COMPANY
issued pursuant to the SEA, The DUTCH
SHAREHOLDERS represent that they have not previously sold, exchanged,
gifted, or otherwise transferred or encumbered in any way, any of their
ownership, rights, or other interests in such warrants as were issued to
each of them pursuant to the SEA.
|
|
|
(e)
|
Upon
execution of this AGREEMENT, whereby the
warrants issued pursuant to the GRSA, the CONSULTING AGREEMENT,
and the SEA are
cancelled by agreement between the COMPANY, the CALIFORNIA SHAREHOLDERS,
TOTAL LOOK, LFG and the DUTCH SHAREHOLDERS, the COMPANY will have no
outstanding warrants to purchase shares of its common
stock.
|
|
|
(f)
|
Upon
execution of this AGREEMENT, the
CALIFORNIA SHAREHOLDERS, TOTAL LOOK, LFG, and the DUTCH SHAREHOLDERS shall
return, as soon as practically possible, all warrants to purchase shares
of common stock of the COMPANY as issued and described in this Section of
this AGREEMENT to
the COMPANY, and the COMPANY shall take any and all necessary corporate,
administrative, and other actions to finalize the cancellation of all such
warrants. If such warrants cannot be located, a party may
certify that the warrant has been lost or destroyed, and such
certification shall be deemed full satisfaction of this subparagraph. If
any warrants cannot be located, the party unable to locate the warrants
shall, as soon as practically possible, notify the COMPANY as such and the
COMPANY shall file a Form 8-K with the United States Securities and
Exchange Commission detailing as such in order to place the public on
constructive notice that such warrants are cancelled and the COMPANY will
not recognize such warrants if a party attempts to convert such warrants
in the future.
|
Section
2. CONSULTING AGREEMENT
It is agreed by the COMPANY and LFG
that the CONSULTING
AGREEMENT is hereby rescinded.
|
|
(a)
|
By
executing this AGREEMENT, and thus
agreeing to rescind the CONSULTING AGREEMENT,
the shares of common stock of the COMPANY and the warrants to purchase
shares of common stock of the COMPANY issued to LFG pursuant to the CONSULTING AGREEMENT are
hereby cancelled by agreement between the COMPANY and LFG. Thus upon
execution of this AGREEMENT, LFG will no
longer own, nor have any interest in, the 2,400,000 shares of common stock
or the 2,400,000 warrants to purchase shares of common stock of the
COMPANY as were issued to LFG pursuant to the CONSULTING AGREEMENT,
and such shares and warrants will be
cancelled.
|
|
|
(b)
|
By
executing this AGREEMENT, thus agreeing
to the cancelation of the shares of common stock of the COMPANY and
warrants to purchase shares of common stock issued pursuant to the CONSULTING AGREEMENT,
LFG represents that it has not previously sold, exchanged, gifted, or
otherwise transferred or encumbered in any way, any of its ownership,
rights, or other interests in such shares of common stock and warrants as
were issued to it pursuant to the CONSULTING
AGREEMENT.
|
|
|
(c)
|
By
executing this AGREEMENT, and thus
agreeing to rescind the CONSULTING AGREEMENT,
LFG releases the COMPANY, and all of its agents, assigns, attorneys,
directors, employees, officers, representatives, and similar such
individuals, from any and all past, current, and future requirements of
payment and financial obligations required by the CONSULTING AGREEMENT. By
executing this AGREEMENT, and thus
agreeing to rescind the CONSULTING AGREEMENT,
LFG also releases and cancels any and all debt or monies owed to LFG by
the COMPANY pursuant to the CONSULTING AGREEMENT,
and further releases the COMPANY, and all of its agents, assigns,
attorneys, directors, employees, officers, representatives, and similar
such individuals, from liability arising from such debt or monies
owed.
|
|
|
(d)
|
Execution
of this AGREEMENT
releases both the COMPANY and LFG from any and all past, current, and
future duties and obligations required of such parties under the CONSULTING AGREEMENT,
and cancels any duty or obligation owed or owing previously under the
CONSULTING
AGREEMENT as well as any liability based upon any non performance
or non-payment under the CONSULTING
AGREEMENT.
|
|
|
(e)
|
Upon
execution of this AGREEMENT, LFG shall
return, as soon as practically possible, all shares of common stock of the
COMPANY and warrants to purchase shares of common stock as were issued
pursuant to the CONSULTING AGREEMENT,
and as described in this Section, to the COMPANY, and the COMPANY shall
take any and all necessary corporate, administrative, and other action to
finalize the cancellation of all such shares and
warrants.
|
Section
3. Cancellation of certain shares of the CALIFORNIA SHAREHOLDERS and
LFG
It is hereby agreed by the COMPANY, the
CALIFORNIA SHAREHOLDERS, and LFG that certain shares of common stock of the
COMPANY issued pursuant to the GRSA will, upon execution of
this AGREEMENT, be
cancelled such that after execution of this AGREEMENT, the CALIFORNIA
SHAREHOLDERS and LFG will collectively own ten percent (10%) of the now
outstanding common stock of the COMPANY. The parties agree and
acknowledge that such shares that will remain owned by the CALIFORNIA
SHAREHOLDERS have been issued as of the date of the GRSA, and such issuance date
shall not be modified for purposes of capital gains holding periods or holding
periods required under any securities laws, including without limitation, the
holding periods set forth in Rule 144. The Company shall not, for any
reason, place a stop transfer order, or otherwise hinder, delay or interfere
with the transfer or sale of any of such shares.
|
|
(a)
|
The
CALIFORNIA SHAREHOLDERS and LFG currently own shares of common stock of
the COMPANY, issued pursuant to the GRSA as
follows:
|
|
Shareholder
|
Common Stock
|
|||
|
DOJO
|
2,040,000 | |||
|
HYPERION
|
2,720,000 | |||
|
PALISADES
|
2,720,000 | |||
|
MORPHEUS
|
2,720,000 | |||
|
▇▇▇▇▇▇
|
4,080,000 | |||
|
PICASSO
|
4,080,000 | |||
|
GLACIER
|
4,080,000 | |||
|
LFG
|
3,060,000 | |||
|
|
(b)
|
The
CALIFORNIA SHAREHOLDERS, LFG and the COMPANY agree to cancel a portion of
such shares in the amounts as follows: DOJO agrees to cancel 919,893
shares of common stock of the COMPANY issued pursuant to the GRSA, HYPERION agrees to
cancel 959,572 shares of common stock of the COMPANY issued pursuant to
the GRSA,
PALISADES agrees to cancel 2,720,000 shares of common stock of the COMPANY
issued pursuant to the GRSA, MORPHEUS agrees to
cancel none of the shares of common stock of the COMPANY issued to it
pursuant to the GRSA, ▇▇▇▇▇▇ agrees to
cancel 1,839,787 shares of common stock of the COMPANY issued pursuant to
the GRSA, PICASSO
agrees to cancel 1,839,787 shares of common stock of the COMPANY issued
pursuant to the GRSA, GLACIER agrees to
cancel 1,839,787 shares of common stock of the COMPANY issued pursuant to
the GRSA, and LFG
agrees to cancel 3,060,000 shares of common stock of the COMPANY issued
pursuant to the GRSA.
|
|
|
(c)
|
After
execution of this AGREEMENT, the CALIFORNIA SHAREHOLDERS and LFG’s
ownership of common stock of the COMPANY will be as
follows:
|
|
Shareholder
|
Common Stock
|
|||
|
DOJO
|
1,120,107 | |||
|
HYPERION
|
1,760,428 | |||
|
PALISADES
|
ZERO
|
|||
|
MORPHEUS
|
2,720,000 | |||
|
▇▇▇▇▇▇
|
2,240,213 | |||
|
PICASSO
|
2,240,213 | |||
|
GLACIER
|
2,240,213 | |||
|
LFG
|
ZERO
|
|||
|
|
(d)
|
Prior
to the execution of this AGREEMENT, the COMPANY
had or has 125,611,739 shares of common stock outstanding. After the
execution of this AGREEMENT, because the CONSULTING AGREEMENT is
hereby being rescinded and the shares of common stock issued pursuant to
the CONSULTING
AGREEMENT are hereby cancelled, the COMPANY will have 123,211,739
shares of common stock outstanding. The shares retained by the CALIFORNIA
SHAREHOLDERS AND LFG, as described in this Section, part (c), equal
approximately 10% of 123,211,739, or 12,321,174 shares of common stock of
the COMPANY.
|
|
|
(e)
|
The
shares of common stock of the COMPANY not cancelled, and which are
retained by the CALIFORNIA SHAREHOLDERS and LFG as described in this
Section, part (c), shall be subject to anti-dilution rights as described
in Section 5 of this AGREEMENT.
|
|
|
(f)
|
By
executing this AGREEMENT, thus agreeing
to the cancelation of certain shares of common stock of the COMPANY issued
pursuant to the GRSA as described in
this Section, the CALIFORNIA SHAREHOLDERS and LFG represent that they have
not previously sold, exchanged, gifted, or otherwise transferred or
encumbered in any way, any of their ownership, rights, or other interests
in such shares of common stock of the COMPANY as was issued to each of
them pursuant to the GRSA.
|
|
|
(g)
|
Upon
execution of this AGREEMENT, the
CALIFORNIA SHAREHOLDERS and LFG shall return, as soon as practically
possible, shares of common stock of the COMPANY that will be cancelled by
agreement upon execution of this AGREEMENT, as issued and
described in this Section to the COMPANY, and the COMPANY shall take any
and all necessary corporate, administrative, and other action to finalize
the cancellation of all such shares. Upon receipt of share
certificates representing the shares owned by the CALIFORNIA SHAREHOLDERS,
the COMPANY shall, within five business days, issue new certificates
representing the shares that have not been cancelled, free of restrictive
legend pursuant to Rule 144. The COMPANY shall obtain any
necessary legal opinions required for this
issuance.
|
Section
4. Issue of shares to Total Look
It is hereby agreed and understood
between the COMPANY, TOTAL LOOK, the CALIFORNIA SHAREHOLDERS, and LFG that
13,178,826 shares of restricted common stock of the COMPANY will be issued to
TOTAL LOOK by the COMPANY upon the execution of this AGREEMENT.
|
|
(a)
|
As
part of the GRSA,
Total Look transferred shares of preferred stock of the COMPANY to the
CALIFORNIA SHAREHOLDERS and LFG in exchange for $7500.00. The CALIFORNIA
SHAREHOLDERS and LFG thereafter converted such preferred stock into shares
of common stock of the COMPANY.
|
|
|
(b)
|
Such
converted shares are, as part of this AGREEMENT, being
cancelled and retained as described in Section 3, above, and are not being
returned to TOTAL LOOK as part of the rescission of the GRSA.
|
|
|
(c)
|
The
COMPANY shall, as soon as practically possible upon execution of this
AGREEMENT, issue
13,178,826 shares of common stock to TOTAL LOOK, in order to place TOTAL
LOOK into a share ownership position similar to that which TOTAL LOOK held
prior to the execution of the GRSA. The shares of
common stock of the COMPANY issued to TOTAL LOOK pursuant to this Section
of this AGREEMENT
shall be subject to anti-dilution rights as described in Section 5 of this
AGREEMENT.
|
|
|
(d)
|
By
executing this AGREEMENT, TOTAL LOOK
releases the CALIFORNIA SHAREHOLDERS and LFG, and all of its agents,
assigns, attorneys, directors, employees, officers, representatives, and
similar such individuals, from any and all past, current, and future
requirements of payment and financial obligations required by the GRSA.
|
|
|
(e)
|
By
executing this AGREEMENT, the COMPANY,
TOTAL LOOK, the CALIFORNIA SHAREHOLDERS, and LFG hereby release each and
all of the others, and all of their agents, assigns, attorneys, directors,
employees, officers, representatives, and similar such individuals, from
any and all past, current, and future liabilities arising out of the GRSA.
|
Section
5. Anti-dilution
It is hereby agreed by the COMPANY, the
CALIFORNIA SHAREHOLDERS, LFG, TOTAL LOOK, and the DUTCH SHAREHOLDERS that
certain shares of common stock of the COMPANY owned by the CALIFORNIA
SHAREHOLDERS, LFG, TOTAL LOOK, and the DUTCH SHAREHOLDERS shall be subject to
anti-dilution provisions as described in this Section.
|
|
(a)
|
The
shares of common stock of the COMPANY issued to TOTAL LOOK pursuant to the
GRSA, totaling
49,500,000, shall be subject to the anti-dilution provisions as described
and defined in this Section to this AGREEMENT.
|
|
|
(b)
|
The
shares of common stock of the COMPANY issued to TOTAL LOOK pursuant to the
Section 4 to this AGREEMENT, totaling
13,178,826, shall be subject to the anti-dilution provisions as described
and defined in this Section to this AGREEMENT.
|
|
|
(c)
|
The
shares of common stock of the COMPANY retained by the CALIFORNIA
SHAREHOLDERS and LFG after execution of this AGREEMENT as described
in Section 3, part (c) herein, shall be subject to the anti-dilution
provisions as described and defined in this Section to this AGREEMENT.
|
|
|
(d)
|
The
shares of common stock of the COMPANY issued to the DUTCH SHAREHOLDERS
pursuant to the SEA (30,000,000 shares
owned by ▇▇▇▇▇▇▇, and 6,000,000 shares owned by ▇▇ ▇▇▇▇, MNH, and
BLIJLEVEN, each) shall be subject to the anti-dilution provisions as
described and defined in this Section to this AGREEMENT.
|
|
|
(e)
|
This
anti-dilution provision requires that the company issue shares of
restricted common stock of the COMPANY to the CALIFORNIA SHAREHOLDERS,
LFG, TOTAL LOOK, and the DUTCH SHAREHOLDERS in the event that the COMPANY
engage in any diluting event such as a forward or reverse stock split, any
issuance of shares of common stock,, warrants or other
securities convertible into common stock, stock consolidation, exchange of
shares, reverse, reorganization or similar event that would dilute the
ownership percentage of common stock of the COMPANY of the CALIFORNIA
SHAREHOLDERS, LFG, TOTAL LOOK, or the DUTCH SHAREHOLDERS. In the event of
such a diluting event, the COMPANY shall issue shares of common stock of
the COMPANY, or identical securities of such issuance is of any security
other than common stock (such as warrants or preferred stock) to the
CALIFORNIA SHAREHOLDERS, LFG, TOTAL LOOK, or the DUTCH SHAREHOLDERS in
such amounts as would make such parties’ ownership percentage the same, or
approximately the same, percentage ownership as each party held prior to
the diluting event.
|
|
|
(f)
|
It
is hereby agreed by the COMPANY, the CALIFORNIA SHAREHOLDERS, LFG, TOTAL
LOOK, and the DUTCH SHAREHOLDERS that the anti-dilution provisions herein
shall not apply, and any anti-dilution rights shall be and are hereby
waived by the CALIFORNIA SHAREHOLDERS, LFG, TOTAL LOOK, and the DUTCH
SHAREHOLDERS, in the event of the issuance of shares of common
stock pursuant to a “bonafide financing,” an acquisition of another entity
or property, or as part of a settlement of a lawsuit, arbitration, or
other legal conflict; provided, however, that
this exception shall not apply to any acquisition or settlement unless
each of the following conditions are
satisfied:
|
|
|
(i)
|
The
acquisition or settlement is with a party that is not an officer or
director or ten percent or more shareholder of the Company, or any party
to this Agreement;
|
|
|
(ii)
|
The
acquisition or settlement is negotiated in good faith, in an arm’s length
negotiation, on terms that are fair and reasonable to the
Company;
|
|
|
(iii)
|
The
Company shall offer to sell to CALIFORNIA SHAREHOLDERS, LFG, TOTAL LOOK,
and the DUTCH SHAREHOLDERS, a number of shares of common stock, at the
price per share reasonably attributed to the consideration received by the
Company for the shares issued pursuant to the acquisition or settlement,
equal to the percentage of shares owned by each such shareholder as a
percentage of the total number of shares held by all such
shareholders. Thus, for example only, assume the total number
of shares of common stock of the Company owned by all of CALIFORNIA
SHAREHOLDERS, LFG, TOTAL LOOK, and the DUTCH SHAREHOLDERS is 1,000,000
shares, and TOTAL LOOK owns 200,000 of such shares. The Company
then issues 100,000 shares pursuant to a settlement or acquisition in
which the shares of common stock are valued at $0.10 per
share. In such case, TOTAL LOOK would have the right to
purchase 20,000 shares for $0.10 per share. A shareholder shall
have thirty days to accept and purchase its allotment of shares, starting
from the date of its receipt of (i) written notice by the Company of such
shareholders right to purchase shares, including the number of shares and
the purchase price of such shares, and a reasonable description of the
event triggering such right, and (ii) a copy of the relevant acquisition
or settlement agreement.
|
|
|
(g)
|
“Bonafide
financing” consists of an event where by the COMPANY issues shares of
common stock of the COMPANY in exchange for capital investment made into
the COMPANY including offers and sales of COMPANY common stock made
pursuant to an exemption from registration pursuant to the United States
Securities and Exchange Commission, public or private offerings for the
purpose of raising capital for the COMPANY, or other similar such capital
raising activities. “Bonafide financing” does not include the trading of
COMPANY shares now registered and trading on any exchange. In
the event of a Bonafide financing, the Company shall offer to each of
CALIFORNIA SHAREHOLDERS, LFG, TOTAL LOOK, and the DUTCH SHAREHOLDERS, the
right to purchase shares pursuant to such offering at the lowest price as
is offered to or accepted from any other
party.
|
|
|
(h)
|
The
shares subject to the anti-dilution provisions will be non-dilutable as
long as such shares are owned by the CALIFORNIA SHAREHOLDERS, LFG, TOTAL
LOOK and the DUTCH SHAREHOLDERS. If such shares are sold,
gifted, transferred, traded, lost, encumbered by a third-party or
otherwise become no longer in the possession and control of such original
shareholder (the CALIFORNIA SHAREHOLDERS, LFG, TOTAL LOOK or the DUTCH
SHAREHOLDERS), or subject to the control or interest of a third-party,
then the CALIFORNIA SHAREHOLDERS, LFG, TOTAL LOOK and the DUTCH
SHAREHOLDERS hereby agree that the anti-dilution provisions described
herein for such shares no longer apply. For clarification, any
shares transferred or sold in a private transaction to an affiliate of the
transferor, such as a trust or other entity owned in whole or in part by
the transferor or its affiliates, shall not be deemed to terminate the
anti-dilution rights described
herein.
|
Section
6. Sales Commission
The COMPANY, the CALIFORNIA
SHAREHOLDERS, and LFG hereby memorialize their desire to enter into subsequent
sale commission agreements as follows.
|
|
(a)
|
The
COMPANY, the CALIFORNIA SHAREHOLDERS, and LFG hereby agree that LFG will
be paid a 5% commission of the gross sale for any sales made through
individuals and/or entities that are introduced to the COMPANY by the
CALIFORNIA SHAREHOLDERS or LFG or their
affiliates.
|
|
|
(b)
|
Each
such sales commission shall be memorialized and further described and
defined in separate agreements made with regard to each sale or customer
that the CALIFORNIA SHAREHOLDERS or LFG introduce to the
COMPANY.
|
Section
7. Releases
Each
party to this AGREEMENT,
upon execution of this AGREEMENT, hereby releases and
discharges from liability each and all other parties hereto as
follows: CALIFORNIA SHAREHOLDERS, LFG, TOTAL LOOK, and the DUTCH
SHAREHOLDERS
|
|
(a)
|
The
Releases:
|
|
|
a.
|
Upon
the execution of this AGREEMENT, the COMPANY,
TOTAL LOOK AND THE DUTCH SHAREHOLDERS each hereby releases and discharges
each of the COMPANY, THE CALIFORNIA SHAREHOLDERS, LFG, and their
respective agents, assigns, attorneys, directors, employees, officers,
managers, members, trustees, beneficiaries, parents, partners,
predecessors, representatives, subsidiaries, successors, transferees, and
all other similar such individuals and entities, and all persons acting
by, through, under or in concert with any of them, and each of them from
any and all actions, causes of action, claims, costs, damages, debts,
demands, expenses, liabilities, losses and obligations of every nature,
character and description, known or unknown, suspected or unsuspected,
actual or contingent, which the releasing party now owns or holds, or has
at any time heretofore owned or held, or may at any time hereafter own or
hold, by reason of any matter, cause or thing whatsoever incurred, done,
omitted or suffered to be done arising out of, or which may hereafter be
claimed to arise out of, related to or in any way directly or indirectly
connected with any fact, circumstance or event existing on or prior to the
date hereof (all such released or discharged claims and items,
collectively, the “Company Released
Claims”.
|
|
|
b.
|
Upon
the execution of this AGREEMENT, LFG and the
CALIFORNIA SHAREHOLDERS each hereby releases and discharges the COMPANY,
TOTAL LOOK AND THE DUTCH SHAREHOLDERS, and their respective agents,
assigns, attorneys, directors, employees, officers, managers, parents,
partners, predecessors, representatives, subsidiaries, successors,
transferees, and all other similar such individuals and entities, and all
persons acting by, through, under or in concert with any of them, and each
of them from any and all actions, causes of action, claims, costs,
damages, debts, demands, expenses, liabilities, losses and obligations of
every nature, character and description, known or unknown, suspected or
unsuspected, actual or contingent, which the releasing party now owns or
holds, or has at any time heretofore owned or held, or may at any time
hereafter own or hold, by reason of any matter, cause or thing whatsoever
incurred, done, omitted or suffered to be done arising out of, or which
may hereafter be claimed to arise out of, related to or in any way
directly or indirectly connected with any fact, circumstance or event
existing on or prior to the date hereof (all such released or discharged
claims and items, collectively, the “LFG Released Claims,” and, together
with the Company Released Claims, the “Released
Claims”).
|
|
|
(b)
|
The
releases provided herein shall not be deemed an admission by any of the
parties hereto of any sort. No right shall inure to any third party from
the obligations, representations and agreements made or reflected
herein.
|
|
|
(c)
|
Each
of the parties to this AGREEMENT represents and
warrants that it alone is the owner of the Released Claims, that it has
not heretofore assigned or transferred, nor purported to assign or
transfer to any third party, and is not aware of any third party, who
might assert some interest in any of the Released Claims. Each party to
this AGREEMENT
further agrees to indemnify, defend and hold harmless the other from all
liability, claims, demands, damages, costs, expenses and attorneys’ fees
incurred by another party to this AGREEMENT as a result of
any third party asserting any such assignment or transfer of any such
interest, right or claim.
|
|
|
(d)
|
Each
of the parties to this AGREEMENT represents and
warrants that none of the Released Claims is subject to any purported or
actual lien, security interest, encumbrance or other contractual right of
any third party. Each Party further agrees to indemnify, defend and hold
harmless the other from all liability, claims, demands, damages, costs,
expenses and attorneys’ fees incurred by another party to this AGREEMENT as a result of
any third party asserting the existence of any of the
foregoing.
|
|
|
(e)
|
Each
of the parties to this AGREEMENT acknowledges
that it has read this AGREEMENT, has been, or
has had the opportunity to be, represented by independent counsel of their
own choice in connection with the circumstances leading up to the
execution of the releases herein, understands the terms, conditions and
consequences of such releases, and is freely and voluntarily entering into
such releases.
|
|
|
(f)
|
By
execution of this AGREEMENT and the
releases contained in this Section, each releasing party represents and
warrants to the released parties that no claim that he, she, or it has,
had, might have or might have had in the past against any person or entity
released hereby, has previously been conveyed, assigned, or in any manner
transferred, in whole or in part, to any third party. Each releasing party
expressly represents and warrants to all others that he, she or it has
full authority to enter into this AGREEMENT and grant the
releases contained in this Section.
|
Section
8. Purpose
It is
expressly understood and agreed that the terms of this AGREEMENT are contractual and
not merely recitations and that the agreements herein are to made in an effort
to resolve disputed claims among the parties herein, avoid litigation, and buy
peace and that no releases or other consideration given shall be construed as an
admission of liability, all liability being expressly denied by each released
party hereto.
Section
9. Entire Agreement
It is
understood and agreed that this AGREEMENT contains the entire
agreement between the parties and supersedes any and all prior agreements,
arrangements, or understandings between the parties relating to the subject
matter hereof. No oral understandings, statements, representations, warranties,
promises, or inducements contrary to the terms of this AGREEMENT or otherwise not
contained in this AGREEMENT exist. This AGREEMENT cannot be changed or
terminated except in writing signed by all parties hereto. The rights, duties
and obligations of the Parties under this AGREEMENT shall operate
independently of any other relationship, contractual or otherwise, between the
Parties.
Section
10. Amendments and
Waivers
No
amendment to this AGREEMENT shall be valid or
binding unless set forth in writing and duly executed by all of the parties
hereto. No waiver of any breach of any term or provision of this
AGREEMENT shall be
effective or binding unless made in writing and signed by the party purporting
to give the same and, unless otherwise provided in the written waiver, shall be
limited to the specific breach waived.
Section
11. Governing Law
This
AGREEMENT shall be
construed in all respects in accordance with the internal laws of the State of
California applicable to agreements made and to be performed entirely within
California. Any dispute which relates to the subject matter hereof, or arises
herefrom, shall be resolved in an appropriate forum in the State of California,
city of Santa ▇▇▇▇▇▇.
Section
12. Complete Agreement
By
execution of this AGREEMENT, each party warrants
and represents that he understands that this is a full, final, and complete
settlement with each party released hereby of all known and unknown claims. The
releases from each party hereto are not conditioned upon the occurrence or
nonoccurrence of any event or the granting of any consent or approval or related
to or dependent upon any other event or any agreement or business transaction
between such parties.
Section
13. Binding upon
Successors
This
AGREEMENT shall be
binding upon and shall inure to the benefit of the parties and their respective
heirs, successors, representatives, assigns, affiliates, agents, shareholders,
directors, employees and attorneys, past and present, and each of
them.
Section
14. Severability
If any
provision of this AGREEMENT is held invalid or
unenforceable by any court of competent jurisdiction, the other provisions of
this AGREEMENT will
remain in full force and effect. Any provision of this AGREEMENT held invalid or
unenforceable only in part or degree will remain in full force and effect to the
extent not held invalid or unenforceable.
Section
15. Counterparts
This
AGREEMENT may be signed
in one or more counterparts, each of which shall constitute an original but all
of which, when taken together, shall constitute one and the same agreement. If
this AGREEMENT is
executed in counterparts, then each party shall execute sufficient counterpart
signature pages for each party, ultimately, to be provided with an originally
executed counterpart signature page from each party.
Section
16. Gender and Number
Each
gender shall include the other genders and the plural shall include the singular
and vice versa whenever the context may require in this AGREEMENT.
Section
17. Authority
Each of
the individuals whose signature appears below hereby represents and warrants
that he or she has actual authority to enter into this AGREEMENT on behalf of the
entity on whose behalf he or she signs this AGREEMENT and does so to the
fullest extent of his or her authority, whether as an individual, officer,
director, shareholder, partner, joint venturer or otherwise.
This
AGREEMENT is hereby
entered into and executed pursuant to the terms described herein by the
undersigned parties on this ______ day of April, 2009.
|
HYPERION
FUND, L.P.
|
||
|
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
/s/
Illegible
|
|
|
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
||
|
Chief
Executive Officer
|
||
|
|
||
|
TOTAL
LOOK BV
|
PALISADES
CAPITAL, LLC 401(K) PROFIT SHARING TRUST
|
|
|
/s/ G.M.W. ▇▇▇▇▇
|
/s/
Illegible
|
|
|
G.M.W.
▇▇▇▇▇
|
||
|
LONDON
FINANCE GROUP, LTD.
|
MORPHEUS
2005 TRUST
|
|
|
/s/
Illegible
|
/s/
Illegible
|
|
|
DOJO
ENTERPRISES, LLC
|
▇▇▇▇▇▇
PARTNERS, LLC
|
|
|
/s/
Illegible
|
/s/
Illegible
|
|
|
|
||
|
MEDICAL
NETWORK HOLDING BV
|
PICASSO,
LLC
|
|
|
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
/s/ Illegible | |
|
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
||
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
|
GLACIER,
LLC
|
|
|
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
|
/s/
Illegible
|
|
|
▇▇▇▇▇
▇▇ ▇▇▇▇
|
||
|
/s/ ▇▇▇▇▇ ▇▇ ▇▇▇▇
|
||
|
▇.▇.
▇▇▇▇▇▇▇ BEHEERMAATSCHAPPIJ B.V.
|
||
|
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
|