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EXHIBIT 4.46
SETTLEMENT AGREEMENT
Agreement made as of the 1st day of April, 1999, by and between on the
one hand Xxxx Xxxxxx, residing at 000 Xxxx 00xx Xxxxxx, Xxx. 00X, Xxx Xxxx, Xxx
Xxxx 00000 ("Plaintiff"), and on the other hand (i) Complete Wellness Centers,
Inc. ("CWC"), a corporation organized under the laws of the State of Delaware,
whose principal place of business is 000 Xxxxxxxx Xxxxxx, X.X., Xxxxx 000,
Xxxxxxxxxx, X.X. 00000, and (ii) Complete Wellness Weight Management, Inc., a
corporation organized under the laws of the State of Delaware (collectively
"Defendants"). Plaintiff and Defendants agree as follows:
1. Simultaneously with the execution of this Settlement Agreement,
counsel for Plaintiff and Defendants shall execute the Stipulation and Order
Dismissing Action With Prejudice (in the form attached hereto), which will be
presented within three business days thereafter to the Court (Judge Xxxxxxx X.
Xxxxxx) to be "So Ordered."
2. By not later than one hundred eighty (180) days after the date of
this Settlement Agreement, CWC shall cause to be registered non-restricted,
freely tradeable shares of CWC common stock whose aggregate offering price on
the day the secondary goes to market will equal $80,000. Such shares shall be
issued and registered as follows: "Xxxx Xxxxxx."
3. If, within CWC's sole discretion or otherwise, it registers no
non-restricted, freely tradeable shares of CWC common stock within one hundred
eighty days after the date of this Settlement Agreement, CWC may, prior to the
expiration of the foregoing one hundred eighty day period, issue a certified or
bank check in the amount of $80,000, payable to "Xxxx Xxxxxx" and "Xxxxxxx
Xxxxxxxxxxx, As Attorney For Xxxx Xxxxxx," and deliver same to Xxxxxxx
Xxxxxxxxxxx.
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4. If CWC either registers and delivers the stock as provided in
paragraph two above, or pays the $80,000 as provided in paragraph three above,
then Defendants shall have no further obligations to Plaintiff.
5. Contemporaneously with the execution of this Settlement Agreement,
CWC shall sign and deliver (i) the original of the Affidavit of Confession of
Judgment (in the form attached hereto), and (ii) the original of the Promissory
Note (in the form attached hereto) upon which the Affidavit of Confession of
Judgment is based, to Xxxxxxx Xxxxxxxxxxx, who shall hold both documents in
escrow. If the one hundred eighty day period referred to in paragraphs two and
three above expires and CWC has failed to register and deliver the $80,000 worth
of nonrestricted, freely tradeable shares of CWC common stock, or,
alternatively, has failed to deliver the certified or bank check in the amount
of $80,000, Plaintiff shall have the right to enter and enforce immediately the
original of the Affidavit of Confession of Judgment, based upon the original of
the Promissory Note. With respect to the Promissory Note, Defendants agree to
waive the notice requirement of presentment and demand. If CWC registers and
delivers the stock or pays the $80,000 pursuant to paragraphs two and three
above, respectively, then Xxxxxxx Xxxxxxxxxxx shall return the original
Affidavit of Confession of Judgment and the original Promissory Note to
Xxxxxxxx, Zulack & Xxxxxxxxxx, LLP within three business days thereafter.
6. In consideration of the terms of this Settlement Agreement,
Plaintiff and Defendants agree to execute and exchange general releases in the
forms attached hereto. The attorneys for each party shall hold the general
releases in escrow. If CWC registers and delivers the stock or pays the $80,000
pursuant to paragraphs two and three above, respectively, then Plaintiff's and
Defendants' attorneys shall exchange the general releases they are holding in
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escrow within three business days thereafter (or, in the case of $80,000
payment, after the check is negotiated and clears).
7. This Agreement shall be construed and enforced under the laws of
the State of New York. The Court shall retain jurisdiction with respect to the
enforcement of this Settlement Agreement or any dispute arising therefrom.
Plaintiff and Defendants consent to jurisdiction in the Southern District of New
York, and, in the event that the Southern District of New York refuses to
exercise jurisdiction, in any state court of New York State.
8. Plaintiff and Defendants are entering into this Agreement to
settle the action pending in the United States District Court for the Southern
District of New York captioned "Xxxx Xxxxxx v. Complete Wellness Centers, Inc.
and Complete Wellness Weight Management, Inc.", Index No. 98 Civ. 8409. This
Agreement does not constitute and shall not be construed to constitute an
admission of any liability by Defendants in connection with this action. This
Agreement is being entered into by Defendants solely as a compromise of disputed
claims.
9. CWC represents that at the present time it has no intention of
submitting a bankruptcy petition.
10. The terms of this Settlement Agreement, including the amount of
any consideration paid, shall be kept confidential and shall not be directly or
indirectly disclosed by Plaintiff or Defendants or any of their employees,
agents, or attorneys, except by written agreement signed by Plaintiff and
Defendants, Court Order, or as required by law, nor shall any settlement
agreement or release be filed in any court or introduced in evidence in any
action for any purpose whatsoever by anyone, other than in an action between
Plaintiff and Defendants
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hereto to enforce or interpret its terms or to seek modification of this
paragraph, except as otherwise ordered by a court of competent jurisdiction.
IN WITNESS WHEREOF, Plaintiff and Defendants have executed this
Settlement Agreement this 1st day of April 1999.
COMPLETE WELLNESS CENTER, INC.
By: [SIG]
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An Authorized Officer
COMPLETE WELLNESS WEIGHT
MANAGEMENT, INC.
By: [SIG]
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An Authorized Officer
/s/ Xxxx Xxxxxx
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XXXX XXXXXX
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