EXHIBIT 10.10
COMPROMISE AND SETTLEMENT AGREEMENT
AND CONTINGENT RELEASE (the "SETTLEMENT AGREEMENT")
THIS SETTLEMENT AGREEMENT is made and entered into this 26th day of
November, 2002, by and between Richard Whitman (hereinafter referred to as
"Whitman") and Medical Resources Management, Inc., a Nevada corporation
(hereinafter referred to as "MRM") and Emergent Group, Inc., a Nevada
Corporation (hereinafter referred to as "EGI"), with respect to the following
facts:
A.Whitman, MRM and EGI are parties to an Agreement dated August 20,
2001 as amended on November 30, 2001, copies of which are attached (the
"Agreement").
B. By mutual agreement, the parties now desire to alter their
respective rights in connection with the aforementioned Agreement as more
particularly set forth herein.
NOW, THEREFORE in consideration of the foregoing facts and the mutual covenants
and agreement herein contained, the parties agree as follows:
1. INCORPORATION OF RECITALS: The foregoing recitals contained in
Paragraphs A and B, are incorporated herein by reference as if at this
point set forth in full.
2. THE SETTLEMENT: MRM shall pay to Whitman the sum of Twenty-Five
Thousand Dollars ($25,000) upon execution of this Settlement Agreement
and a second payment of Seventeen Thousand Dollars ($17,000) on or
before March 31, 2003. MRM and EGI will make required payroll
deductions on these payments. If MRM and EGI fail to make any payments
due Whitman under this paragraph on or before March 31, 2003, then,
upon 15 days written notice of default to both MRM and EGI, and failure
to cure such default within 15 days receipt of such notice, MRM and EGI
will immediately owe Whitman $213,000 less any payments made hereunder,
which was the amount due Whitman under the Agreement prior to this
Settlement Agreement, and MRM and EGI will immediately make such
payment in full to Whitman on or before April 30, 2003.
3. RELEASE: Upon timely receipt by Whitman of the aforementioned payments,
each party hereby releases, waives and forever
discharges the other and the others' assigns, transferees, directors,
officers, shareholders, partners, employees, servants, successors,
agents, attorneys and representatives of and from any and all claims,
demands, damages, debts, liabilities, actions, causes of action, suits,
contracts, controversies, agreements, accounts, reckonings,
obligations, and judgments, whether in law or in equity, which the
parties to this Settlement Agreement or either of them now have, own,
or hold or at any time heretofore ever had, owned, or held or could,
shall, or may hereafter have, own, or hold, based upon, related to, or
by reason of any action, contract (express, implied, implied in fact,
implied in law, or otherwise), lien, liability, law, matter, cause of
action, lawsuit, fact, thing, act, omission, or whatever, occurring or
existing at any time heretofore and to and including the date hereof,
including without limiting the generality of the foregoing, and claim
or liability for or on account of any and all matters which are or
might have been the subject matters which are or might have been
referred to, or in any way involved with, the facts, recitals and
circumstances incorporated by reference in Paragraph 1 hereof;
provided, however, this release shall not apply to the executory
provisions of this Settlement Agreement. If the aforementioned cash
payments are not delivered to Whitman in a timely manner, then any
payments received shall be credited towards the amounts owed under the
Agreement, which shall remain in effect until paid in full.
Notwithstanding anything to the contrary contained herein, Whitman
agrees to immediately release MRM and EGI from the registration rights
referred to in Paragraph 9 of the Agreement.
4. INTENTION OF THE PARTIES: It is the intention of the parties hereto in
executing this Settlement Agreement that upon timely receipt by Whitman
of the aforementioned cash payments, this Settlement Agreement shall be
effective as a full and final accord and satisfactory release of each
and every matter herein specifically or generally referred to, except
for the executory provisions hereof. In furtherance of this intention,
each party acknowledges that it is familiar with Section 1542 of the
Civil Code of the State of California, which provides as follows:
"A general release does not extend to claims which the
creditor does not know 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."
Upon timely receipt by Whitman of the aforementioned cash payments, each
party waives and relinquishes any rights and benefits which it has or may
have under Section 1542 of the Civil Code of the State of California to the
full extent that they may lawfully waive all such rights and benefits
pertaining to the subject matter of this Settlement Agreement, except as
same relate to the executory provisions of this Settlement Agreement. The
parties, and each of them, acknowledge that they are aware that they may
hereafter discover facts in addition to or different from those which they
now know or believe to be true with respect to the subject matter of this
Settlement Agreement, but it is their intention hereby to fully and finally
forever settle and release any and all matters, disputes, and differences,
known and unknown, suspected and unsuspected, which do now exist, may
exist, or heretofore have existed between them, and that in furtherance of
this intention, the releases herein given shall be and remain in effect as
full and complete general releases notwithstanding the discovery or
existence of any such additional or different facts.
5. REPRESENTATIONS: Each party hereby warrants and represents to the
other that it has not heretofore assigned or transferred
or purported to assign or transfer to any person not a party hereto,
any matter or any part or portion thereof covered by this Settlement
Agreement, and each of them agrees to indemnify or hold harmless the
other from and against any claim, demand, damage, debt, liability,
account, reckoning, obligation, cost, expense, lien, action, or cause
of action (including attorney's fees and costs paid or incurred) based
upon or in connection with or arising out of any such assignment or
transfer or purported or claimed assignment or transfer. Whitman
acknowledges that the compensation provided in Section 2 herein above
is a gross amount of compensation and that the Company will withhold
from such compensation amounts respecting income taxes, and other
payroll taxes as required. Whitman acknowledges that his complete
compensation for services is set forth in Section 2 herein above and
that, except as otherwise set forth in Section 2 hereof, he shall not
receive and benefits, including, but not limited to medical and the
ability to participate in any pension plans which Whitman hereby
acknowledges he has turned down.
6. NO ADMISSION: The execution of this Settlement Agreement affects the
settlement of claims that are contested and denied. Nothing herein
contained shall be construed as an admission by any party hereto of any
liability of any kind to the other party. Each party acknowledges that
the other party expressly denies any obligation or liability
whatsoever.
7. ENTIRE AGREEMENT: This Settlement Agreement contains the entire
understanding of the parties; there are no representations, covenants,
or understandings other than those expressly set forth herein. Each
party acknowledges that no other party or any agent or attorney of such
other party has made any promise, representation, or warranty whatever,
expressed or implied or statutory, not contained herein concerning the
subject matter hereof, to induce such party to execute this Settlement
Agreement, and each party acknowledges that it has not executed this
Settlement Agreement in reliance on any such promise, representation,
or warranty not specifically herein contained. No modification to the
terms of this Settlement Agreement shall be effective unless contained
in a written instrument signed by the party to be charged.
8. BINDING ON SUCCESSORS: This Settlement Agreement and the covenants and
conditions herein contained shall apply, to be binding upon, and inure
to the benefit of the respective heirs, administrators, executors,
legal representatives, assigns, successors, and agents of the parties
hereto.
9. SEVERABILITY: The provisions of this instrument are severable, and
should any provision be for any reason unenforceable, the balance shall
nonetheless be of full force and effect.
10. CONSTRUCTION: This Settlement Agreement shall in all respects be
interpreted, enforced, and governed by and under the laws of the State
of California. This Settlement Agreement is to be deemed to have been
jointly prepared by the parties hereto, and any uncertainty or
ambiguity existing herein shall not be interpreted against any of the
rules of interpretation of contracts, if any such uncertainty or
ambiguity exists.
11. ATTORNEYS' FEES: In the event that any party hereto shall institute any
action or proceeding to enforce any rights granted hereunder, the
prevailing party in such action or proceeding shall be entitled, in
addition to any other relief granted by the court or other applicable
judicial body, to recover actual attorneys' fees incurred in connection
therewith.
12. COUNTERPARTS: This Settlement Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
13. CO-INVESTMENT: In consideration for releasing both MRM and EGI from the
registration obligation stated in Paragraph 3, if
within twelve (12) months from the date of execution of this Settlement
Agreement MRM or EGI raises or convertible debt in a private placement
or a public offering, Whitman and his assignee or designee
(collectively "Optionee") is hereby granted the sole and unilateral
option to elect to co-invest with the parties subscribing to such
private or public private for no less than 5% of the shares or debt
deemed offered and on the same terms and conditions as the other
investors in such private or public private. MRM and EGI shall give
optionee 30 days from receipt of an offering memorandum to advise MRM
and EGI as to whether optionee will exercise its option to subscribe to
the private placement. If MRM and EGI have not received notice of
optionee's desire to subscribe to the private placement within 30 days,
MRM and EGI shall have no further obligation to Whitman regarding said
option. This option is contingent on optionee complying with all
conditions of any offering memorandum including, but not limited to,
any requirements regarding optionee being a qualified investor as may
be defined in the offering memorandum.
IN WITNESS WHEREOF, the parties hereto have executed this Settlement Agreement
on the date first above written.
RICHARD WHITMAN
/s/ Richard Whitman
Signature
For MEDICAL RESOURCES MANAGEMENT, INC.
By: /s/ Mark W. Waldron, CEO
Signature
For EMERGENT GROUP, INC.
By: Mark W. Waldron
Signature