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EXHIBIT 10(u)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
ABRAHAM KRELOFF and
SHEILA RICH, [AS CORRECTED VERSION]
Plaintiffs,
v. CASE NO. 94-6671-CIV-MIDDLEBROOKS
Rx MEDICAL SERVICES CORP.
and MICHAEL L. GOLDBERG,
Defendants.
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STIPULATION OF DISMISSAL
Pursuant to Rule 41(a)(1)(ii) and 41(a)(2) of the Federal Rules of
Civil Procedure, the parties to this action hereby stipulate to the dismissal of
this action without prejudice. In support thereof, the parties stipulate as
follows:
1. This action was commenced by the filing of a class action complaint on July
22, 1994.
2. On November 7, 1994, Defendants filed an Answer and Affirmative Defenses.
3. On August 11, 1995, the parties filed a Notice of the Settlement of this
action. A Memorandum of Understanding setting forth the terms of the
settlement was filed on or about September 6, 1995.
4. On January 30, 1996, the parties filed a Stipulation of Settlement. The
Settlement provided for an escrowing of funds to pay costs and the
administration of the Settlement, and the issuance of warrants to members of
the Class to purchase common stock of Rx Medical for a period of two years
commencing August 11, 1996. The Settlement provided
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that 1,900,000 warrants would be issued with an exercise price of $1.30 per
share, and would be valid from August 11, 1996 through and including August
10, 1998. The Settlement Stipulation further provided that if Rx Medical
common stock rose above $2 per share during the pendency of the Court's
consideration of the Settlement, the exercise price of the warrants would be
increased to $1.75 per share.
5. Pursuant to the foregoing, $50,000 was placed in escrow with the Defendants'
consent.
6. The Court never considered or took any action with respect to the
Stipulation of Settlement. On July 15, 1997, this matter was reassigned to
the Honorable Donald Middlebrooks.
7. As of the filing of this Stipulation, Rx Medical common stock has been
delisted from trading on the AMEX trading system. Accordingly, the
Settlement terms, by reason of the stock price, the delisting and the
limited duration on the warrants are no longer practical, and the parties do
not wish to pursue it. Any Settlement based on stock warrants would
essentially be worthless.
8. The parties agree that this action should be voluntarily dismissed without
prejudice. Defendants have agreed to pay Plaintiffs' counsel their costs
incurred in this action, including certain costs attributable to valuing the
warrants for purposes of entry into this Stipulation of Settlement. The
costs of experts for purposes of evaluating the Settlement were $10,893.87.
Additional costs which will not exceed $5,000.00 will also be paid to
Plaintiffs' counsel. Plaintiffs' counsel will receive no fees in this
action.
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9. There is no agreement with respect to the Settlement of this action, nor is
any contemplated. The named Plaintiffs will not receive any consideration or
benefit of any kind for the dismissal of this action. See DIAZ V. TRUST
TERRITORY OF THE PACIFIC ISLANDS, 876 F.2d 1401 (9th Cir. 1989). Because no
notice of this action has been mailed to members of the Class and this
action has not been certified as a class action, no notice advising of the
dismissal is contemplated.
10. The rights of absent Class Members to pursue claims against Defendants will
not be released as a result of the dismissal of this action. The dismissal
is without prejudice; there is no release of any claims and Class Members
are free to pursue their claims should they elect to do so. Since this
action was never certified as a class action, the application of Rule 23 is,
at best, an open question. See RICE V. FORD MOTOR Co., 88 F.3d 914 (11th
Cir. 1986).
11. For the foregoing reasons, the parties stipulate that dismissal of this
action voluntarily and without prejudice pursuant to Rule 41(a)(2)(i) is
appropriate, and should be approved by this Court.
Dated: January __, 1998
BURT & PUCILLO, LLP KIPNIS TESCHER LIPPMAN & VALINSKY
By: /s/ Michael J. Pucillo By: /s/ Howard A. Tescher
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Michael J. Pucillo Howard A. Tescher
Florida Bar No. 261033 Florida Bar No. 0509183
222 Lakeview Avenue One Financial Plaza
Suite 300 East Suite 2308
West Palm Beach, FL 33401 Ft. Lauderdale, FL 33394
561/835-9400 954/467-1964
ATTORNEYS FOR PLAINTIFFS ATTORNEYS FOR DEFENDANTS
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished via U.S. Mail to all counsel on the attached Service List, this 29th
day of January, 1998.
/s/ Michael J. Pucillo
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Michael J. Pucillo
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CLOSED
CIVIL UNITED STATES DISTRICT COURT
CASE SOUTHERN DISTRICT OF FLORIDA
CASE NO. 94-6671-CIV-MIDDLEBROOKS
ABRAHAM KRELOFF and
SHEILA RICH,
Plaintiffs, FILED by D.C.
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vs. JAN 29 1998
CARLOS JUENKE
RX MEDICAL SERVICES CORP. CLERK U.S. DIST. CT.
and MICHAEL L. GOLDBERG S.D. OF FLA - MIAMI
Defendants.
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ORDER APPROVING PARTIES' STIPULATION OF DISMISSAL AND
DISMISSING ACTION WITHOUT PREJUDICE
THIS CAUSE came before the Court upon the parties filing a Joint
Stipulation of Dismissal at a status conference held on January 29, 1998. The
Court hereby approves the parties' stipulation of dismissal and the
above-entitled cause of action is hereby DISMISSED WITHOUT PREJUDICE.
DONE AND ORDERED in Chambers at Miami, Florida, this 29th day of
January, 1998.
/s/ Donald M. Middlebrooks
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DONALD M. MIDDLEBROOKS
UNITED STATES DISTRICT JUDGE
cc: counsel of record
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