SETTLEMENT AGREEMENT AND FULL AND FINAL RELEASE
THIS SETTLEMENT AGREEMENT AND FULL AND FINAL RELEASE
("Agreement"), is made and entered into this day of July,
2000 by and among DAVID M. VITKO and D.V. BACKPRODUCTS, INC.
("hereinafter collectively referred to as "Plaintiffs"), on the
one hand, and INFOTOPIA (f/k/a FLEX MARKETING, INC.), a successor
by assignment of certain assets of NATIONAL BOSTON MEDICAL, INC.
(hereinafter referred to as "Defendant"), on the other hand.
WHEREAS, various disputes arose between Plaintiffs and
Defendant; and WHEREAS, Plaintiffs commenced a lawsuit
against National Boston Medical, Inc. in the United States
District Court for the Northern District of Ohio, entitled David
M. Vitko, et al. v. National Boston Medical, Inc., Case No. 4:99
CV 2269 (the "Lawsuit"); and
WHEREAS, the aforementioned parties have reached an
agreement to settle their disputes and desire to reduce said
agreement to writing.
NOW, THEREFORE, in consideration of the mutual promises
contained herein, and for the good and valuable consideration
recited herein, the receipt and sufficiency of which is hereby
acknowledged, it is agreed as follows:
1. Defendant shall pay to Backstroke, Ltd. the total
amount of $368,434.14 in settlement of this action. The
settlement amount shall be received, via certified checks,
according to the following payment schedule:
a. Fifty Thousand Dollars ($50,000.00) on or before
July 21, 2000;
b. One Hundred Thousand Dollars ($100,000.00) on or
before August 25, 2000;
c. One Hundred Thousand Dollars ($100,000.00) on or
before September 22, 2000; and
d. One Hundred Eighteen Thousand Four Hundred Thirty
Four Dollars and Fourteen Cents ($118,434.14) on
or before October 20, 2000.
2. Defendant shall pay to Backstroke, Ltd. royalties of
three and one-half percent (3.5%) of the sales price derived by
Defendant (or its assignee or successor) on all sales of the
Backstroke, (Patent # 5,352,188) made after October 20, 2000.
Such royalties shall be net of returns and shall be payable, via
certified checks, no later than the forty-fifth (45th) day
following the end of the calendar year quarter in which the
royalties are earned.
3. It is understood and agreed that, as a condition of
settlement, the parties shall execute the Consent Judgment and
Dismissal Entry attached hereto as Exhibit A. It is further
understood that so long as the payments referred to in Paragraph1
above are timely made, Plaintiffs will not execute on the
Judgment; however, if any single payment is not paid timely, the
sum of $368,434.14 less any payments made by Defendant will be
accelerated, and Plaintiffs can then effect immediate execution
upon the unpaid balance. It is further understood that following
full payment of the sum of $368,434.14, Plaintiffs shall file
with the United States District Court for the Northern District
of Ohio, Eastern Division in the Lawsuit a Satisfaction of
Judgment.
4. Plaintiffs agree to forego asserting their ownership
rights and interest in and to Patent No. 5,352,188.
5. Plaintiffs, on the one hand, and Defendant, on the
other hand, hereby mutually release each other, their past,
present and future agents, representatives, shareholders,
principals, attorneys, affiliates, parent corporations,
subsidiaries, managers, members, officers, directors, employees,
predecessors and successors and heirs, executors and assigns,
from the claims embodied in the Lawsuit and from any and all
legal, equitable or other claims, counterclaims, demands, set-
offs, defenses, contracts, contract claims, accounts, suits,
debts, agreements, actions, causes of action, sums of money,
reckoning, bonds, bills, specialities, covenants, promises,
variances, trespasses, damages, executions, judgments, findings,
controversies and disputes, and all duties, responsibilities or
obligations, from the beginning of the world to the date hereof,
which are now known or are unknown and which arise out of, or
which may, can, or shall arise out of, or which have or ever have
arisen out of, or which could have arisen out of, the marketing
and sales of the Backstroke and the business relationship and
contractual obligations between and among the parties, including,
without limitation, any and all claims or counterclaims for
breach of contract, tortious interference with business and
contractual relations, conversion, breach of fiduciary duty,
breach of duty of loyalty, unfair competition, defamation, and
any other claims, counterclaims and/or third-party claims, which
have been, or could have been, asserted by any party hereto in
any court, arbitration, or other forum involving the subject
matter of the Lawsuit.
Notwithstanding the foregoing, this Release does not
apply to breaches of the terms and conditions of Paragraphs 1 and
2 above.
6. Plaintiffs agree to take those steps necessary to
dismiss the Lawsuit with prejudice within ten business days
following the completion execution of this Agreement and the
Consent Judgment Entry attached as Exhibit A.
7. Plaintiffs and Defendant agree that all aspects of this
Agreement have been thoroughly discussed with the parties'
attorneys, and that the parties have carefully read and fully
understand all of the provisions of this Agreement, and that the
parties are voluntarily entering into this Agreement.
8. This Agreement shall be governed by, construed and
interpreted in accordance with the laws of the State of Ohio,
without reference to the conflicts and/or choice of law rules
otherwise applicable.
9. This Agreement may be executed in counterparts, each of
which shall be an original and all of which shall constitute one
and the same instrument.
10. Plaintiffs and Defendant represent and warrant that the
execution of this Agreement has been duly authorized and that the
persons signing this Agreement have the legal authority to take
such action.
11. If, at any time, any part of this Agreement is found or
held to be invalid, then such finding or holding shall not affect
the validity of the remainder hereof.
12. Plaintiffs and Defendant agree that this Agreement
contains the entire agreement between the parties and supersedes
any and all prior agreements, arrangements and/or understandings
between them relating to the subject matter hereof. No oral
understanding, statements, promises or inducements contrary to
the terms of this Agreement exist. This Agreement cannot be
changed, modified, abrogated or terminated orally.
13. This Agreement shall be binding upon and inure to the
benefit of the respective successors, representatives, assigns,
and predecessors of the undersigned parties.
14. Each party has cooperated in the drafting and
preparation of this Agreement. Hence, in any construction to be
made of this Agreement, the same will not be construed against
any party on the grounds that the party was the drafter.
IN WITNESS WHEREOF, the parties hereto have executed
and delivered this Agreement this day of July, 2000.
DAVID M. VITKO, an individual INFOTOPIA (f/k/a FLEX MARKETING,
INC.), a
successor by assignment of certain
assets of
NATIONAL BOSTON MEDICAL, INC.
/s/ David M. Vitko By: /s/ Daniel Hoyng
Date: Its:
Date:
D.V. BACKPRODUCTS, INC.
By:
Its:
Date:
