EXHIBIT 10.1
SETTLEMENT AGREEMENT, GENERAL RELEASE AND COVENANT NOT TO SUE
This Settlement Agreement, General Release and Covenant Not to Sue
("Settlement Agreement") is made this 25th day of March, 2009 by and among
Integrated Healthcare Holdings, Inc. ("IHHI"), Anil V. Shah, M.D. ("Dr. Shah"),
Orange County Physicians Investment Network, LLC ("OC-PIN"), Bruce Mogel
("Mogel"), Pacific Coast Holdings Investment, LLC ("PCHI"), West Coast Holdings,
LLC, ("WCH"), Dr. Kali P. Chaudhuri ("Dr. Chaudhuri"), Ganesha Realty, LLC
("Ganesha"), William E. Thomas ("Thomas"), Medical Capital Corporation ("MCC"),
Medical Provider Financial Corporation I ("MPFCI"), Medical Provider Financial
Corporation II ("MPFCII") and Medical Provider Financial Corporation III
("MPFCIII")(MCC, MPFCI, MPFCII and MPFCIII are sometimes hereinafter
collectively referred to as "MedCap"). All the above entities and individuals
are sometimes hereinafter collectively referred to as "Parties" or individually
as a "Party."
RECITALS
A. Certain of the Parties are currently engaged in litigation,
appellate, arbitration and/or court proceedings and/or have certain legal
disputes and issues with each other as more particularly set forth herein below.
B. Specifically:
a. IHHI is now suing Dr. Shah in Orange County Superior Court
("OCSC") Case No. 07CC05895 (consolidated with OCSC Case No.
07CC06017) and OCSC Case No. 30-2008-106637;
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b. Dr. Shah has filed a cross-complaint against IHHI in OCSC Case
No. 07CC05895;
c. OC-PIN (previously dismissed as a named defendant in OCSC Case
No. 07CC05895) is now suing Mogel in OCSC Case No.
30-2008-00109286 (a derivative action purportedly filed on behalf
of IHHI);
d. OC-PIN is also suing IHHI in OCSC Case Nos. 30-2008-00106805,
30-2008-00108983; 30-2008-00109959 and 30-2008-00112102;
e. Dr. Chaudhuri is now suing OC-PIN in OCSC Case No.
30-2008-0011293;
f. Dr. Shah presently seeks to perfect an arbitration award in
his favor against PCHI (JAMS Case No. 1200040611) in OCSC Case
No. 30-2008-00114434; and
g. PCHI is suing OC-PIN et al. in OCSC Case No. 30-2008-00112088.
C. The foregoing litigation has spawned various related appellate
proceedings including, but not limited to, California Fourth Appellate District
Case Nos. G041208, G041181, G041491 and California Supreme Court Case No.
S168604.
D. Some of the foregoing litigation has been stayed, while other
aspects of the litigation are now scheduled to be tried on July 27, 2009.
E. All of the above described litigation, arbitration, appellate and
other legal proceedings are hereinafter collectively referred to as the
"Actions."
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F. In addition to the foregoing, periodic threats have been made by Dr.
Shah, OC-PIN and/or their legal counsel to hereinafter sue Dr. Chaudhuri, MedCap
and/or IHHI's individual directors, executives and attorneys on a variety of
theories, either directly or derivatively purportedly on behalf of IHHI.
Periodic allegations have also been made against Dr. Chaudhuri and others
alleging that Dr. Chaudhuri is not properly managing PCHI and that PCHI is not
acting properly defending claims brought against it by Dr. Shah. Certain members
of OC-PIN have also made threats and allegations against one another and some
members of OC-PIN have assigned certain threatened claims to IHHI. Dr. Chaudhuri
and PCHI have challenged the confirmation of the Arbitration Award in favor of
Dr. Shah and have indicated that they will pursue all appellate avenues.
G. For reasons of their own and without admission of wrongdoing or
liability of any sort, the signatories to this Settlement Agreement wish to
fully and finally resolve the foregoing pending Actions and threatened
litigation, arbitration and discovery disputes, together with any and all
possible claims, disputes or disagreements among certain of the Parties relating
to any past fact, act or occurrence (except as expressly reserved herein)
("Settlement").
H. Certain of the Parties have entered into a separate settlement
agreement ("Second Settlement Agreement") concurrently herewith. No term or
provision of the Second Settlement Agreement contradicts or is inconsistent with
any term or provision of this Settlement Agreement nor does any term or
provision of the Second Settlement Agreement decrease, diminish or reduce any of
the agreements, covenants, waivers, or releases made by or granted to any of the
Parties to this Settlement Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, promises and
undertakings set forth below, the adequacy and sufficiency of which are hereby
expressly acknowledged by each of the Parties hereto, the Parties agree as
follows:
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COVENANTS
1. The foregoing Recitals are incorporated by reference as if fully set
forth herein.
2. The Closing of the Settlement ("Closing") shall occur on or before
March 27, 2009 at Callahan & Blaine, 3 Hutton Centre Drive, Ninth Floor, Santa
Ana, California.
3. The Closing shall be contingent upon, subject to and concurrent with
the Closing of the Second Settlement Agreement.
MONETARY.
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4. IHHI shall pay the Callahan & Blaine Trust Account as the jointly
designated representative of OC-PIN and Dr. Shah the total sum of One Million
Five Hundred Thousand Dollars ($1,500,000) in two installments as follows: Seven
Hundred Fifty Thousand Dollars ($750,000) payable at the Closing; and Seven
Hundred Fifty Thousand Dollars ($750,000) and interest thereon payable at eight
percent (8%) payable on September 25, 2009. Payment of the second installment is
hereby guaranteed by PCHI, who shall make such payment by September 28, 2009, if
not timely paid by IHHI.
5. At the Closing, PCHI will separately pay to the Callahan & Blaine
Trust Account, as the designated representative of Dr. Shah, Eight Hundred Fifty
Thousand Dollars ($850,000).
6. At the Closing, MedCap will separately pay to the Callahan & Blaine
Trust Account, as the jointly designated representative of OC-PIN and Dr. Shah,
Three Hundred Fifty Thousand Dollars ($350,000).
7. At the Closing, IHHI shall pay to the Callahan & Blaine Trust
Account, as the designated representative of Dr. Shah, the sum of Fifteen
Thousand Dollars ($15,000) in satisfaction of all Shah's individual claims
including, but not limited to, his claims for past due director's fees and other
compensation.
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8. [Intentionally Omitted.]
9. At the Closing, IHHI and Mogel shall agree and stipulate to the
release and return of the $50,000 bond which was posted in connection with the
shareholder derivative action filed by OC-PIN against Mogel and IHHI in OCSC
Case No. 30-2008-00109286.
STOCK PURCHASE AGREEMENTS.
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10. At the Closing, IHHI, Dr. Shah, Dr. Chaudhuri and OC-PIN agree to
execute and deliver their respective Stock Purchase Agreements in the forms
attached hereto as Exhibits A, B and C ("Stock Purchase Agreements"). The shares
purchased under the Stock Purchase Agreements shall be referred to as the "Stock
Purchase Shares." The Stock Purchase Agreements are an integral part of this
First Settlement Agreement, the terms of which Stock Purchase Agreements are
incorporated by reference as though fully set forth herein.
If either OC-PIN or Dr. Shah choose not to purchase all of the
respective Stock Purchase Shares, then those Stock Purchase Shares which either
party elects not to purchase may be purchased by the other party. Either party
who elects not to purchase all or part of their Stock Purchase Shares shall give
appropriate notice to the other party no later than 20 days after Closing.
Within 30 days after Closing, OC-PIN and Dr. Shah shall jointly notify IHHI and
Dr. Chaudhuri in writing ("SPA Notice") of their final determination of the
number of Stock Purchase Shares subject to their respective Stock Purchase
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Agreements whereupon such Stock Purchase Agreements shall be deemed so amended
to reflect the final number of Stock Purchase Shares being purchased. In the
event IHHI and Dr. Chaudhuri do not receive a SPA Notice duly executed by OC-PIN
and Dr. Shah within 30 days of Closing there shall be no adjustment in the
number of shares subject to any of the Stock Purchase Agreements.
In the event that OC-PIN and Dr. Shah purchase, in the aggregate, fewer
Stock Purchase Shares than the maximum they were entitled to purchase under the
terms of their Stock Purchase Agreements then Dr. Chaudhuri agrees that the
number of Stock Purchase Shares he is entitled to purchase under his Stock
Purchase Agreement shall be automatically reduced to an amount which is 51% of
the aggregate number of Stock Purchase Shares which Dr. Chaudhuri, OC-PIN and
Dr. Shah actually purchase under their Stock Purchase Agreements. By way of
illustration, if OC-PIN and Dr. Shah actually purchase an aggregate of 15
million shares, then Dr. Chaudhuri is entitled to purchase 15,612,245 shares
which is 51% of the aggregate number of shares being sold under all Stock
Purchase Agreements.
At the same time, as part of the SPA Notice, OC-PIN and Dr. Shah must
elect whether they intend to use as a credit all or a portion of the second
Seven Hundred Fifty Thousand Dollars ($750,000) payment (as specified in
Paragraph 4 above and hereinafter referred to as the "Second Payment"), and any
accrued interest thereon, toward OC-PIN and Dr. Shah's payment to IHHI for their
respective Stock Purchase Shares. In the SPA Notice, OC-PIN and Shah will
provide an agreed allocation of the Second Payment signed by each of them.
Neither OC-PIN nor Dr. Shah are entitled to use as a credit all or a portion of
the Second Payment unless such a fully signed allocation is so provided. If
OC-PIN and Dr. Shah properly provide a SPA Notice with a fully signed
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allocation, they can use so much of the amount allocated as a credit applicable
to their respective obligations under their respective Stock Purchase
Agreements. If the credit is more than what is owed to IHHI, then IHHI will
continue to owe the balance under the terms of Section 4. If the credit is less
than what is owed to IHHI, OC-PIN and Dr. Shah will need to furnish the
additional funds at the Closing of their respective Stock Purchase Agreements.
If OC-PIN and Dr. Shah fail to timely give the SPA Notice with fully signed
allocation, then no credit shall be given but IHHI shall continue to owe the
Second Payment under the terms of Section 4.
11. IHHI agrees (and MedCap concurs) that IHHI will use the net
proceeds of the sale of the Stock Purchase Shares to pay down the principal
balance of IHHI's $10,700,000 Convertible Term Note, dated October 9, 2007, held
by MPFCIII, and MedCap agrees to promptly advance (or cause its subsidiaries to
promptly advance) to IHHI additional funds equal to such amount by which the
$10,700,000 Convertible Term Note is paid down ("Additional Loaned Funds"). IHHI
agrees (and MedCap concurs) that the source of the Additional Loaned Funds will
be further borrowing on and against IHHI's existing lines of credit with MedCap.
If necessary, IHHI then agrees to use the Additional Loaned Funds to bring
current the Chapman Lease and the PCHI Lease, including all late fees,
penalties, etc., associated with IHHI's failure to timely pay such rent and
other payments required under the leases.
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12. IHHI shall use its reasonable best efforts to ensure that it has
enough authorized capital stock to issue the Stock Purchase Shares, after
consideration of all previously granted warrants, conversion rights and stock
purchase agreements. The IHHI Board has authorized, and the majority-in-interest
of IHHI's shareholders have consented to an increase in authorized capital stock
to accommodate the Stock Purchase Agreements. IHHI has filed an information
statement on Schedule 14C with the Securities and Exchange Commission ("SEC").
IHHI covenants to promptly (1) seek to have such information statement declared
effective by the SEC, (2) respond to any comments by the SEC, (3) mail the
information statement to the shareholders, and (4) file restated articles of
incorporation with the Nevada Secretary of State. The increase in authorized
capital stock shall be completed within 45 days subject to reasonable extension
if IHHI must respond to SEC comments. Notwithstanding the foregoing, in no event
shall IHHI be required to perform under the Stock Purchase Agreements if the
effect would be to require IHHI to issue shares, including outstanding warrants,
conversion rights and stock purchase options, in excess of its authorized and
unreserved capital stock.
13. OC-PIN expressly acknowledges the validity and enforceability of
the preemptive rights granted by IHHI to Dr. Chaudhuri. OC-PIN recognizes that
in connection with this Settlement Agreement, OC-PIN is releasing its claim that
IHHI granted or should have granted OC-PIN competing or superior preemptive
rights and acknowledges that as of the Closing, it does not have any preemptive
rights with respect to securities of IHHI; provided, however, nothing herein is
intended to affect the Stock Purchase Agreements described in Section 10 of this
Settlement Agreement or the OC-PIN members' Tag Along Right described in the
Shareholder's Agreement referenced in the Second Settlement Agreement.
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LOAN INTEREST AND RENT REDUCTION.
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14. MPFCII agrees, effective as of the Closing, to reduce the interest
rate on the $45,000,000 Term Note dated October 9, 2007 ("Term Note") to simple
interest of 10.25% and to maintain such interest rate up to and including the
Maturity date of such Term Note, or any extension thereof, as defined in the
$80,000,000 Credit Agreement dated October 9, 2007 ("Credit Agreement"), under
which Credit Agreement the Term Note was issued ("MedCap Debt Service
Reduction"). Provided, however, the MedCap Debt Service Reduction shall have no
force or effect, and shall be suspended, at any time an Event of Default shall
have occurred and continues under the Credit Agreement. PCHI agrees that during
the period of the MedCap Debt Service Reduction it will reduce the rent payable
by IHHI to PCHI in an amount equal to the MedCap Debt Service Reduction (I.E.,
the difference between 14% and 10.25%). At Closing, all parties to the Credit
Agreement will execute and deliver to MPFCII a written amendment to the Credit
Agreement memorializing the MedCap Debt Service Reduction set forth immediately
above.
PCHI RENT.
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15. IHHI agrees to bring the PCHI lease and the Chapman leases current
and pay all arrearages due under the PCHI Lease and the Chapman leases within
forty-five (45) days after the Closing.
IHHI BY-LAWS AND BOARD CHANGES.
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16. OC-PIN's obligation to fulfill its agreements at the Closing shall
be subject to the following actions by IHHI's Board of Directors:
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i. Approve an amendment to IHHI's Bylaws to provide that the number
of members serving on IHHI's Board of Directors shall be fixed at
seven. This amendment shall be made not later than Closing.
ii. Approve an amendment to Section 4 of Article III of IHHI's Bylaws
to provide that, effective immediately after IHHI's 2009 Annual
Meeting of Shareholders, a Shareholder who owns fifteen percent
(15%) or more of the voting stock of IHHI is entitled to call one
special shareholders meeting per year. This amendment shall be
made not later than Closing; and
iii. Appoint an OC-PIN representative selected by a
majority-in-interest of OC-PIN to fill the seat to be vacated by
Ken Westbrook at Closing until the September 2009 annual meeting
of shareholders.
17. In connection with the provisions set forth in Paragraph 16
immediately above, MedCap (and all related and affiliated persons and entities)
makes no representation or takes any position other than as set forth in the $80
Million Loan Documents and the Other Loan Documents (as said terms are defined
in Paragraph 23(x) below.)
18. Dr. Shah and OC-PIN agree to make, within five (5) business days
after the Closing, and keep current on a timely basis, all such filings and
reports that are required to be made by each of them under Section 13(d) of the
Securities Exchange Act of 1934, as amended, including such filings or reports
that are required to publicly disclose or report to the SEC the transactions
contemplated by this Settlement Agreement.
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19. Dr. Shah covenants and agrees that for a period of two (2) years
after the Closing Dr. Shah will not accept any nomination, appointment or serve
in the capacity as a director, officer or employee of IHHI, so long as IHHI
keeps the PCHI and Chapman leases current ("current" means payment is made
within forty-five (45) days of when payment is due).
DISMISSALS AND RELEASES.
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20. Dr. Shah and OC-PIN specifically covenant not to sue, and further
covenant not to assist anyone else in suing, directly or derivatively on behalf
of IHHI or any other entity, Dr. Chaudhuri or MedCap (and all related and
affiliated persons and entities). Dr. Chaudhuri and MedCap specifically covenant
not to sue, and further covenant not to assist anyone else in suing, directly or
derivatively on behalf of IHHI or any other entity, Dr. Shah and OC-PIN based on
any act, occurrence or omission which occurred or allegedly occurred prior to
the Closing.
21. At the Closing, Dr. Shah and OC-PIN shall sign and deliver to IHHI,
PCHI, Chaudhuri and Mogel dismissals with prejudice of all Dr. Shah and OC-PIN's
claims in the Actions described in the Recitals.
22. At the Closing, IHHI, PCHI and Chaudhuri shall sign and deliver to
Shah and OC-PIN dismissals with prejudice of all IHHI, PCHI and Chaudhuri's
claims against Dr. Shah and/or OC-PIN in the Actions described in the Recitals.
23. Except as to such rights or claims as may be created by this
Settlement Agreement, the Second Settlement Agreement or expressly reserved in
either of them, the following releases are provided:
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i. RELEASE OF CLAIMS BY IHHI. IHHI irrevocably, unconditionally and
fully releases and forever discharges OC-PIN, Dr. Shah, PCHI,
WCH, MedCap (and all related and affiliated persons and
entities), Dr. Chaudhuri, Ganesha, Thomas and their respective
past and present subsidiaries, affiliates, officers, directors,
partners, agents, employees, members, managers, representatives,
lawyers and law firms, and all persons acting by, through, under
or in concert with them, or any of them, from any and all rights,
suits, claims, actions, accounts, demands, contracts, debts,
controversies, agreements, promises, liabilities, duties,
obligations, costs, expenses, damages and causes of action,
whether presently known or unknown, vested or contingent,
suspected or unsuspected, accrued or yet to accrue, in law or in
equity, which IHHI may now or hereafter have, own or claim to
have arising out of, connected with or otherwise related to or
concerning the Actions, any facts, circumstances or claims which
were alleged or which could have been alleged in the pleadings in
the Actions, or which could have been asserted in any action or
proceeding in any legal, administrative or other forum whatsoever
in any jurisdiction, including, but not limited to, any legal
fees, court costs or expenses relating to the Actions; provided,
however, nothing in this Settlement Agreement shall constitute or
include a release or compromise of any claims by IHHI against
Mogel, either in his individual or representative capacity as an
agent for any party.
THIS IS A GENERAL RELEASE.
ii. RELEASE OF CLAIMS BY OC-PIN OC-PIN irrevocably, unconditionally
and fully releases and forever discharges IHHI, Mogel, PCHI, Dr.
Chaudhuri, Ganesha, Thomas, MedCap (and all related and
affiliated persons and entities), and their respective past and
present subsidiaries, affiliates, officers, directors, partners,
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agents, employees, members, managers, insurers, representatives,
lawyers and law firms, and all persons acting by, through, under
or in concert with them, or any of them, from any and all rights,
suits, claims, actions, accounts, demands, contracts, debts,
controversies, agreements, promises, liabilities, duties,
obligations, costs, expenses, damages and causes of action,
whether presently known or unknown, vested or contingent,
suspected or unsuspected, accrued or yet to accrue, in law or in
equity, which OC-PIN may now or hereafter have, own or claim to
have arising out of, connected with or otherwise related to or
concerning the Actions, any facts, circumstances or claims which
were alleged or which could have been alleged in the pleadings in
the Actions, or which could have been asserted in any action or
proceeding in any legal, administrative or other forum whatsoever
in any jurisdiction, including, but not limited to, any legal
fees, court costs or expenses relating to the Actions; provided,
however, nothing in this Settlement Agreement shall constitute or
include a release or compromise of OC-PIN's rights to enforce its
preexisting ownership of IHHI's stock (acknowledging that it does
not have preemptive rights) or previous releases which IHHI has
executed in favor of OC-PIN.
THIS IS A GENERAL RELEASE.
iii. RELEASE OF CLAIMS BY DR. SHAH. Dr. Shah irrevocably,
unconditionally and fully releases and forever discharges IHHI,
Mogel, PCHI, Dr. Chaudhuri, Ganesha, Thomas, MedCap (and all
related and affiliated persons and entities), and their
respective past and present subsidiaries, affiliates, officers,
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directors, partners, agents, employees, members, managers,
insurers, representatives, lawyers and law firms, and all persons
acting by, through, under or in concert with them, or any of
them, from any and all rights, suits, claims, actions, accounts,
demands, contracts, debts, controversies, agreements, promises,
liabilities, duties, obligations, costs, expenses, damages and
causes of action, whether presently known or unknown, vested or
contingent, suspected or unsuspected, accrued or yet to accrue,
in law or in equity, which Dr. Shah may now or hereafter have,
own or claim to have arising out of, connected with or otherwise
related to or concerning the Actions, any facts, circumstances or
claims which were alleged or which could have been alleged in the
pleadings in the Actions, or which could have been asserted in
any action or proceeding in any legal, administrative or other
forum whatsoever in any jurisdiction, including, but not limited
to, any legal fees, court costs or expenses relating to the
Actions; provided, however, nothing in this Settlement Agreement
shall constitute or include a release or compromise of Dr. Shah's
right to enforce his preexisting ownership and contractual rights
with OC-PIN or WCH.
THIS IS A GENERAL RELEASE.
iv. RELEASE OF CLAIMS BY MOGEL. Mogel irrevocably, unconditionally
and fully releases and forever discharges IHHI, OC-PIN, Dr. Shah,
PCHI, WCH, Dr. Chaudhuri, Ganesha, Thomas, MedCap (and all
related and affiliated persons and entities), and their
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respective past and present subsidiaries, affiliates, officers,
directors, partners, agents, employees, members, managers,
representatives, lawyers and law firms, and all persons acting
by, through, under or in concert with them, or any of them, from
any and all rights, suits, claims, actions, accounts, demands,
contracts, debts, controversies, agreements, promises,
liabilities, duties, obligations, costs, expenses, damages and
causes of action, whether presently known or unknown, vested or
contingent, suspected or unsuspected, accrued or yet to accrue,
in law or in equity, which Mogel may now or hereafter have, own
or claim to have arising out of, connected with or otherwise
related to or concerning the Actions, any facts, circumstances or
claims which were alleged or which could have been alleged in the
pleadings in the Actions, or which could have been asserted in
any action or proceeding in any legal, administrative or other
forum whatsoever in any jurisdiction, including, but not limited
to, any legal fees, court costs or expenses relating to the
Actions; provided, however, nothing in this Settlement Agreement
is intended to or shall be construed to extinguish, release,
waive, restrict, reduce, or modify any rights of Mogel under his
pre-existing Resignation Agreement dated November 4, 2008
("Resignation Agreement") with IHHI or rights recognized in such
Resignation Agreement including, but not limited to, Mogel's
rights to indemnification as set forth and recognized in Section
7(d) of the Resignation Agreement, and nothing in this Settlement
Agreement shall constitute or include a release or compromise of
Mogel's right to enforce his pre-existing Resignation Agreement
with IHHI.
THIS IS A GENERAL RELEASE.
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v. RELEASE OF CLAIMS BY PCHI. PCHI irrevocably, unconditionally and
fully releases and forever discharges its members and managers,
IHHI, OC-PIN, Dr. Shah, Dr. Jacob Sweidan, WCH, Dr. Chaudhuri,
Ganesha, Thomas, Mogel MedCap (and all related and affiliated
persons and entities), and their respective past and present
subsidiaries, affiliates, officers, directors, partners, agents,
employees, members, managers, representatives, lawyers and law
firms, and all persons acting by, through, under or in concert
with them, or any of them, from any and all rights, suits,
claims, actions, accounts, demands, contracts, debts,
controversies, agreements, promises, liabilities, duties,
obligations, costs, expenses, damages and causes of action,
whether presently known or unknown, vested or contingent,
suspected or unsuspected, accrued or yet to accrue, in law or in
equity, which PCHI may now or hereafter have, own or claim to
have arising out of, connected with or otherwise related to or
concerning the Actions, any facts, circumstances or claims which
were alleged or which could have been alleged in the pleadings in
the Actions, or which could have been asserted in any action or
proceeding in any legal, administrative or other forum whatsoever
in any jurisdiction, including, but not limited to, any legal
fees, court costs or expenses relating to the Actions; provided,
however, nothing in this Settlement Agreement shall constitute or
include a release or compromise of PCHI's right to enforce its
pre-existing lease with IHHI.
THIS IS A GENERAL RELEASE.
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vi. Release of Claims by WCH. WCH irrevocably, unconditionally and
fully releases and forever discharges IHHI, Mogel, PCHI, Dr.
Chaudhuri, Dr. Shah, Dr. Jacob Sweidan, Ganesha, Thomas, MedCap
(and all related and affiliated persons and entities), and their
respective past and present subsidiaries, affiliates, officers,
directors, partners, agents, employees, members, managers,
representatives, lawyers and law firms, and all persons acting
by, through, under or in concert with them, or any of them, from
any and all rights, suits, claims, actions, accounts, demands,
contracts, debts, controversies, agreements, promises,
liabilities, duties, obligations, costs, expenses, damages and
causes of action, whether presently known or unknown, vested or
contingent, suspected or unsuspected, accrued or yet to accrue,
in law or in equity, which WCH may now or hereafter have, own or
claim to have arising out of, connected with or otherwise related
to or concerning the Actions, any facts, circumstances or claims
which were alleged or which could have been alleged in the
pleadings in the Actions, or which could have been asserted in
any action or proceeding in any legal, administrative or other
forum whatsoever in any jurisdiction, including, but not limited
to, any legal fees, court costs or expenses relating to the
Actions; provided, however, nothing in this Settlement Agreement
shall constitute or include a release or compromise of WCH's
right to enforce its preexisting ownership and contractual rights
in and with PCHI.
THIS IS A GENERAL RELEASE.
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vii. RELEASE OF CLAIMS BY DR. CHAUDHURI. Dr. Chaudhuri irrevocably,
unconditionally and fully releases and forever discharges IHHI,
Dr. Shah, Mogel, OC-PIN, PCHI, WCH, MedCap (and all related and
affiliated persons and entities), and their respective past and
present subsidiaries, affiliates, officers, directors, partners,
agents, employees, members, managers, representatives, lawyers
and law firms, and all persons acting by, through, under or in
concert with them, or any of them, from any and all rights,
suits, claims, actions, accounts, demands, contracts, debts,
controversies, agreements, promises, liabilities, duties,
obligations, costs, expenses, damages and causes of action,
whether presently known or unknown, vested or contingent,
suspected or unsuspected, accrued or yet to accrue, in law or in
equity, which Dr. Chaudhuri may now or hereafter have, own or
claim to have arising out of, connected with or otherwise related
to or concerning the Actions, any facts, circumstances or claims
which were alleged or which could have been alleged in the
pleadings in the Actions, or which could have been asserted in
any action or proceeding in any legal, administrative or other
forum whatsoever in any jurisdiction, including, but not limited
to, any legal fees, court costs or expenses relating to the
Actions; provided, however, nothing in this Settlement Agreement
shall constitute or include a release or compromise of Dr.
Chaudhuri's right to enforce his pre-existing ownership and
contractual rights in and with IHHI including, but not limited
to, the above-described preemptive rights and Stock Purchase
Agreement.
THIS IS A GENERAL RELEASE.
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viii. RELEASE OF CLAIMS BY GANESHA. Ganesha irrevocably,
unconditionally and fully releases and forever discharges IHHI,
Dr. Shah, Mogel, OC-PIN, PCHI, WCH, MedCap (and all related and
affiliated persons and entities), and their respective past and
present subsidiaries, affiliates, officers, directors, partners,
agents, employees, members, managers, representatives, lawyers
and law firms, and all persons acting by, through, under or in
concert with them, or any of them, from any and all rights,
suits, claims, actions, accounts, demands, contracts, debts,
controversies, agreements, promises, liabilities, duties,
obligations, costs, expenses, damages and causes of action,
whether presently known or unknown, vested or contingent,
suspected or unsuspected, accrued or yet to accrue, in law or in
equity, which Ganesha may now or hereafter have, own or claim to
have arising out of, connected with or otherwise related to or
concerning the Actions, any facts, circumstances or claims which
were alleged or which could have been alleged in the pleadings in
the Actions, or which could have been asserted in any action or
proceeding in any legal, administrative or other forum whatsoever
in any jurisdiction, including, but not limited to, any legal
fees, court costs or expenses relating to the Actions; provided,
however, nothing in this Settlement Agreement shall constitute or
include a release or compromise of Ganesha's right to enforce its
pre-existing ownership and contractual rights in and with PCHI.
THIS IS A GENERAL RELEASE.
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ix. RELEASE OF CLAIMS BY THOMAS. Thomas irrevocably, unconditionally
and fully releases and forever discharges IHHI, Dr. Shah, Mogel,
OC-PIN, PCHI, WCH, MedCap (and all related and affiliated persons
and entities), and their respective past and present
subsidiaries, affiliates, officers, directors, partners, agents,
employees, members, managers, representatives, lawyers and law
firms, and all persons acting by, through, under or in concert
with them, or any of them, from any and all rights, suits,
claims, actions, accounts, demands, contracts, debts,
controversies, agreements, promises, liabilities, duties,
obligations, costs, expenses, damages and causes of action,
whether presently known or unknown, vested or contingent,
suspected or unsuspected, accrued or yet to accrue, in law or in
equity, which Thomas may now or hereafter have, own or claim to
have arising out of, connected with or otherwise related to or
concerning the Actions, any facts, circumstances or claims which
were alleged or which could have been alleged in the pleadings in
the Actions, or which could have been asserted in any action or
proceeding in any legal, administrative or other forum whatsoever
in any jurisdiction, including, but not limited to, any legal
fees, court costs or expenses relating to the Actions; provided,
however, nothing in this Settlement Agreement shall constitute or
include a release or compromise of Thomas' right to enforce his
pre-existing ownership and contractual rights in and with IHHI.
THIS IS A GENERAL RELEASE.
20
x. RELEASE OF CLAIMS BY MEDCAP. MedCap (and all related and
affiliated persons and entities) irrevocably, unconditionally and
fully releases and forever discharges IHHI, Dr. Shah, Mogel,
OC-PIN, PCHI, WCH, Dr. Chaudhuri, Ganesha, Thomas and their
respective past and present subsidiaries, affiliates, officers,
directors, partners, agents, employees, members, managers,
insurers, representatives, lawyers and law firms, and all persons
acting by, through, under or in concert with them, or any of
them, from any and all rights, suits, claims, actions, accounts,
demands, contracts, debts, controversies, agreements, promises,
liabilities, duties, obligations, costs, expenses, damages and
causes of action, whether presently known or unknown, vested or
contingent, suspected or unsuspected, accrued or yet to accrue,
in law or in equity, which MedCap may now or hereafter have, own
or claim to have arising out of, connected with or otherwise
related to or concerning the Actions, any facts, circumstances or
claims which were alleged or which could have been alleged in the
pleadings in the Actions, or which could have been asserted in
any action or proceeding in any legal, administrative or other
forum whatsoever in any jurisdiction, including, but not limited
to, any legal fees, court costs or expenses relating to the
Actions; provided, however, nothing in this Settlement Agreement
or in the Second Settlement Agreement shall constitute or include
a release, waiver, compromise, limitation or diminishment of the
right of MedCap (and of its related and affiliated entities) to
enforce the provisions of the Term Note, the Credit Agreement or
of any other notes, documents or instrument executed or delivered
in connection therewith (collectively and together, the "$80
21
Million Loan Documents") against any Party to this Settlement
Agreement and/or against any Party to the Second Settlement
Agreement which is or was a party to the $80 Million Loan
Documents, and nothing in this Settlement Agreement or in the
Second Settlement Agreement shall constitute or include a
release, waiver, compromise, limitation or diminishment of the
right of MedCap (and of its related and affiliated entities) to
enforce the provisions of the $50,000,000 Credit Agreement dated
October 9, 2007 and the $10,700,000 Credit Agreement dated
October 9, 2007 and/or any notes, documents or instruments
executed or delivered in connection therewith (collectively and
together, the "Other Loan Documents") against any Party to this
Settlement Agreement and/or against any party to the Second
Settlement Agreement which is or was a party to the Other Loan
Documents.
THIS IS A GENERAL RELEASE.
xi. Without limiting the generality of the foregoing, Dr. Shah,
OC-PIN and WCH generally release Dr. Chaudhuri, Ganesha, Thomas
and PCHI's counsel Gaines, Weil, West & Epstein from any claims
relating or pertaining to the management of PCHI, the defense of
Dr. Shah's claims against PCHI or PCHI's claims against OC-PIN.
xii. Notwithstanding the foregoing, a WCH or OC-PIN Member who has not
executed the Second Settlement Agreement shall not be entitled to
a release herein or a release under the Second Settlement
Agreement.
22
24. Each Party agrees not to commence, maintain, initiate, prosecute,
cause, assist or cooperate with any other person to commence, maintain, initiate
or prosecute any action, suit, proceeding or any claim before any court or
administrative agency in any jurisdiction against a Party of the matters
released in this Settlement Agreement. If a Party violates this covenant then
(a) this Settlement Agreement shall be a complete defense to any such action,
suit, proceeding or claim, and (b) the suing Party may not attack the legal
validity or sufficiency of this Settlement Agreement.
25. Each Party acknowledges that he, she or it has been advised by
counsel of his, her or its own choosing and is familiar with and understands the
provisions of California Civil Code section 1542, which section provides as
follows: 1.
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR
AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR
HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH
THE DEBTOR."
26. Each Party hereby voluntarily and expressly waives and relinquishes
each and every right or benefit which he, she or it may have under California
Civil Code section 1542 to the full extent that he, she or it may lawfully waive
such rights. Each Party acknowledges that he, she or it may hereafter discover
facts in addition to or different from those which he, she or it presently knows
or believes to be true regarding the subject matter of the dispute, but that the
intention here is to fully, finally and forever settle and release the matters,
disputes, differences, now known or unknown, suspected or unsuspected, arising
out of or in any way relating to the matters released pursuant to this
Settlement Agreement.
23
27. The Parties hereto acknowledge that they expressly understand that
this Settlement Agreement and the Settlement it represents is (a) entered into
solely for the purpose of avoiding on-going and future expenses, burdens or
distractions of litigating the Actions, and (b) in no way constitutes an
admission by any Party hereto of any liability of any kind to any other Party or
of any wrongdoing. In this connection, the Parties specifically deny liability
in connection with any claims which have been made or could have been made, or
which are the subject matter of, or arise from, or are connected directly or
indirectly with or related in any way to any of the allegations raised in the
Actions.
28. Notwithstanding the foregoing, PCHI reserves its claims against
IHHI for unpaid rent and other violations of the IHHI\PCHI lease.
29. Dr. Shah represents that, to date, he and his wife have not
incurred any attorneys' fees on account of their guaranty of the Chapman leases.
However, should Dr. Shah or his wife incur any liability, including, but not
limited to, damages, losses or attorneys' fees, caused by IHHI's past failure to
pay rent on the Chapman leases, Dr. Shah hereby expressly reserves, and nothing
herein shall be deemed to release, impair or diminish, any and all rights Dr.
Shah and his wife may have against IHHI or any other party in connection with
any damages, losses or attorney's fees reasonably incurred by Dr. Shah or his
wife in satisfaction or defense of claims brought by the landlord(s) of the
Chapman leases or Tenet relating to Dr. Shah or his wife's guaranty of the
Chapman leases, or any affirmative claims related thereto, including without
limitation the recent action filed by Tenet Healthcare Corporation against Dr.
Shah and IHHI (OCSC Case No. 30-2009-00119836).
24
COMPLIANCE WITH THE LAW.
------------------------
30. All performance under this Settlement Agreement shall at all times
be subject to compliance by all Parties with applicable law and regulation then
in effect including, without limitation, federal and California law and
regulation relating to financial relationships between IHHI and its referring
physicians, such as the federal "Stark Law" contained in provisions of the
Social Security Act.
MISCELLANEOUS.
--------------
31. The Parties each independently represent, warrant and agree that
each is now and shall remain through the Closing the sole and lawful owner of
all right, title and interest in and to every right, claim or other matter
released herein, and that such Party has not assigned or transferred or
purported to or attempted to assign or transfer or had involuntary assigned or
transferred to any person or entity any right, claim, or other matter released
herein, and that no third party is subrogated to any such rights or has any
claim upon the payments being made herein.
32. The Parties named as parties to the Actions stipulate that this
Settlement Agreement may be entered as a judgment pursuant to California Code of
Civil Procedure section 664.6 and that the Orange County Superior Court shall
retain jurisdiction over the Parties to enforce the terms of this Settlement
Agreement until they have been performed in full. For the purposes of this
Settlement Agreement only, and without affecting any other agreements which may
exist between the Parties, California law shall govern this Settlement
Agreement.
25
33. The Parties agree to execute all further and additional documents
and to take such other action necessary under the circumstances to accomplish
the purposes set forth in this Settlement Agreement. Each person or entity who
executes this Settlement Agreement acknowledges and represents that to the
extent that he, she or it is a signatory that he, she or it (a) has fully and
carefully read and understands the Settlement Agreement; (b) has had the
opportunity to be fully apprised by his, her or its attorneys of the legal
effect and meaning of this Settlement Agreement; (c) has had the opportunity to
make whatever investigation or inquiry he, she or it has deemed necessary or
appropriate in connection with the subject matter of this Settlement Agreement;
(d) has been afforded the opportunity to negotiate as to any and all terms of
this Settlement Agreement; and (e) is executing this Settlement Agreement
voluntarily, free from undue influence, coercion, duress, menace or fraud of any
kind.
34. In executing this Settlement Agreement, the Parties hereto do not
rely on any inducements, promises or representations made by any other Party
other than as contemporaneously set forth in writing, including those set forth
in the Second Settlement Agreement, the Shareholder Agreement and the Stock
Purchase Agreements with respect to those Parties who are also parties to those
agreements, respectively. This Settlement Agreement contains the entire
agreement and understanding between the Parties with respect to the Actions and
the subject matters which gave rise to the Actions and supersedes and replaces
and all prior negotiations, proposed and actual agreements, whether written or
26
oral, except for the Second Settlement Agreement, the Shareholder Agreement and
the Stock Purchase Agreements, with respect to the Actions and subject matters
which gave rise to the Actions. Except as expressly set forth herein, nothing in
this Settlement Agreement is intended to modify, change or affect the rights or
obligations of any Party to any pre-existing written contracts or written
agreements between them.
35. The failure of any of the Parties to insist upon strict adherence
to any term, condition or provision of this Settlement Agreement on any occasion
shall not be considered a waiver thereof or deprive that party of the right
thereafter to insist upon strict adherence of that term, condition, or provision
or any other term, condition or provision of this Settlement Agreement.
36. The failure of any Party to fully perform its duties and
obligations under this Settlement Agreement and/or to pay any amounts when due
under this Settlement Agreement ("Defaulting Party") shall not affect, impact,
change, reduce, diminish or eliminate the settlements, covenants, releases and
waivers granted to any other Party to this Settlement Agreement ("Non-Defaulting
Party") so long as the Non-Defaulting Party has fully performed its obligations
under this Settlement Agreement.
37. Each of the signatories for the Parties declares and represents
that he or she is competent and authorized to execute this Settlement Agreement
on behalf of the Party for whom he or she is signing.
27
38. Each Party to this Settlement Agreement shall bear all of his, her
or its own attorneys' fees, costs and expenses as well as fees, costs and
expenses of any of his, her or its advisors with respect to the matters and
Actions released herein and in the negotiation and drafting of this Settlement
Agreement; provided, however, that this provision is not intended to and shall
not be construed to extinguish, release, waive, restrict, reduce, or modify
Mogel's rights to indemnification as set forth and recognized in Section 7(d) of
the Resignation Agreement.
39. This Settlement Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which shall
together constitute one and the same agreement.
40. A photocopied and/or faxed signature page will suffice for the
purposes of executing this Settlement Agreement.
41. Any notice required by this Settlement Agreement shall be made in
writing and sent via certified mail, return receipt requested, DHL, Fed-Ex,
Courier hand-delivered or similar means to give actual notice and proof thereof
("Dispatch") and by facsimile (if facsimile number is provided hereinafter) on
the same day of Dispatch and shall be effective upon Dispatch and facsimile, if
applicable. Notice shall be made as follows:
Dr. Anil Shah
2621 South Bristol, Suite 108
Santa Ana, CA 92704
Fax: (714) 966-0417
With copy to:
Daniel J. Callahan, Esq.
CALLAHAN & BLAINE
3 Hutton Centre Drive, 9th Floor
Santa Ana, CA 92707
Fax: (714) 241-4445
28
Orange County Physicians Investment Network, LLC
2621 South Bristol, Suite 304
Santa Ana, CA 92704
Fax: (714) 297-9588
With copies to:
Daniel J. Callahan, Esq.
CALLAHAN & BLAINE
3 Hutton Centre Drive, 9th Floor
Santa Ana, CA 92707
Fax: (714) 241-4445
and
William R. Mitchell, Esq. 1168-003
LOGAN RETOSKE, LLP
31351 Ranch Viejo Road, Suite 202
San Juan Capistrano, CA 92675
Fax: (949) 489-1257
Integrated Healthcare Holdings, Inc.
1301 N. Tustin Ave.
Santa Ana, CA 92705
Fax: (714) 953-3384
With copies to:
David A. Robinson, Esq.
ENTERPRISE COUNSEL GROUP, ALC
Five Park Plaza, Suite 450
Irvine, CA 92614
Fax: (949) 833-8540
and
J. Scott Schoeffel, Esq.
Integrated Healthcare Holdings, Inc.
1301 N. Tustin Ave.
Santa Ana, CA 92705
Fax: (714) 953-3384
and
29
Allen Z. Sussman, Esq.
Reed Smith, LLP
355 South Grand Avenue, Suite 2900
Los Angeles, CA 90071-1514
Fax: (213) 457-8080
Bruce Mogel
c/o Michael G. Yoder, Esq.
O'MELVENY & MYERS LLP
610 Newport Center Drive, 17th Floor
Newport Beach, CA 92660-6429
Fax: (949) 823-6994
William E. Thomas, Esq.
Strategic Global Management, Inc.
6800 Indiana Avenue, Suite 130
Riverside, CA 92506
Fax: (951) 782-8850
Dr. Kali Chaudhuri
Strategic Global Management, Inc.
6800 Indiana Avenue, Suite 130
Riverside, CA 92506
Fax: (951) 782-8850
With copy to:
Peter J. Mort, Esq.
Law Office of Peter J. Mort
41250 Gallop Lane
Murrieta, CA 92562
Fax: (951) 696-9343
Medical Capital Corporation
Medical Provider Financial Corporation I
Medical Provider Financial Corporation II
Medical Provider Financial Corporation III
c/o Medical Capital Corporation
15101 Red Hill Avenue
Tustin, CA 92780
Attn: Joseph J. Lampariello, President
Thomas R. Fazio, Vice President and General Counsel
Tel: 800-824-3700
Fax: 714-258-7242
30
With copy to:
Gary Sheppard, Esq.
Sedgwick Detert Moran & Arnold
One Market Plaza
Steuart Tower
8th Floor
San Francisco, California 94105
Fax: (415) 781-2635
Pacific Coast Holdings Investment, LLC
6800 Indiana Avenue, Suite 130
Riverside, CA 92506
Fax: (951) 782-8850
and
2621 South Bristol, Suite 304
Santa Ana, CA 92704
Fax: (714) 297-9588
With copy to:
William E. Thomas
------------------
2023 Arroyo Dr.
----------------
Riverside, CA 92506
-------------------
West Coast Holdings, LLC
2621 South Bristol, Suite 304
Santa Ana, CA 92704
Fax: (714) 297-9588
With copy to:
----------------------
----------------------
----------------------
Ganesha Realty, LLC
6800 Indiana Avenue, Suite 130
Riverside, CA 92506
Fax: (951) 782-8850
31
With copy to:
William E. Thomas, Esq.
Strategic Global Management, Inc.
6800 Indiana Avenue, Suite 130
Riverside, CA 92506
Fax: (951) 782-8850
The foregoing is agreed upon this 25th day of March, 2009 at Santa Ana,
California.
INTEGRATED HEALTHCARE HOLDINGS, INC.
By: /s/ Kenneth K. Westbrook
----------------------------------------
Printed Name: Kenneth K. Westbrook
------------------------------
Its: President and CEO
---------------------------------------
By: /s/ Steven R. Blake
----------------------------------------
Printed Name: Steven R. Blake
------------------------------
Its: CFO
--------------------------------------
ORANGE COUNTY PHYSICIANS INVESTMENT NETWORK, LLC
By: /s/ John L. Glavinovich, M.D
----------------------------------------
Printed Name: John L. Glavinovich, M.D.
-----------------------------
Its: Co-Manager
---------------------------------------
By: /s/ Anil V. Shah, M.D.
----------------------------------------
Printed Name: Anil V. Shah, M.D.
------------------------------
Its: Co-Manager
--------------------------------------
ANIL V. SHAH, M.D.
/s/ Anil V. Shah, M.D.
- --------------------------------------------
32
PACIFIC COAST HOLDINGS INVESTMENT, LLC
By: /s/ Kali P. Chaudhuri, M.D.
----------------------------------------
Printed Name: Kali P. Chaudhuri, M.D.
-----------------------------
Its: Manager
---------------------------------------
By: /s/ Jacob Sweidan
----------------------------------------
Printed Name: Jacob Sweidan
------------------------------
Its: Co-Manager
--------------------------------------
MEDICAL PROVIDER FINANCIAL CORPORATION I
MEDICAL PROVIDER FINANCIAL CORPORATION II
MEDICAL PROVIDER FINANCIAL CORPORATION III
MEDICAL CAPITAL CORPORATION
By: /s/ Joseph J. Lampariell
----------------------------------------
Printed Name: Joseph J. Lampariello
-----------------------------
Its: President
---------------------------------------
By: /s/ Joseph J. Lampariello
----------------------------------------
Printed Name: Joseph J. Lampariello
------------------------------
Its: President
--------------------------------------
BRUCE MOGEL
/s/ Bruce Mogel
- --------------------------------------------
KALI P. CHAUDHURI, M.D.
/s/ Kali P. Chaudhuri, M.D
- --------------------------------------------
WEST COAST HOLDINGS, LLC
By: /s/ Jacob Sweidan
----------------------------------------
Printed Name: Jacob Sweidan
------------------------------
Its: Manager
--------------------------------------
33
GANESHA REALTY, LLC
By: /s/ Kali P. Chaudhuri, M.D.
----------------------------------------
Printed Name: Kali P. Chaudhuri, M.D.
------------------------------
Its: Owner/Manager
--------------------------------------
WILLIAM THOMAS
/s/ William E. Thomas
- --------------------------------------------
34