Exhibit 10.4
SETTLEMENT AGREEMENT AND GENERAL RELEASE
This Settlement
Agreement and Release (the “Settlement Agreement”) is
entered into as a document under seal as of July 31, 2009, by and
between Vermont Pure Holdings, Ltd. (“Vermont Pure”),
Peter K. Baker (“Baker), and Ross Rapaport
(“Rapaport”) (collectively referred to herein as
“the Vermont Pure Parties”) on the one hand, and Hagens
Berman Sobol Shapiro LLP (“Hagens Berman”) and Thomas
M. Sobol (“Sobol”) (collectively referred to herein as
“the Hagens Berman Parties”) on the
other. (Each signatory to this Agreement is referred to
herein as a "Party", and all signatories are referred to
collectively as "the Parties.")
RECITALS
WHEREAS , Vermont Pure has filed suit against Hagens
Berman and Sobol in Massachusetts Superior Court, C.A. No.
06-1814-BLS, and Hagens Berman [and Sobol] [have] brought certain
counterclaims against Vermont Pure (“the Massachusetts State
Court Action”);
WHEREAS , Hagens Berman has filed suit against Baker and
Rapaport in Federal District Court, District of Massachusetts, C.A.
No. 09-10404-DPW (“the Federal Action”);
WHEREAS , the Hagen Berman Parties and the Vermont Pure
Parties deny any and all liability as alleged in the Massachusetts
State Court Action and the Federal Action, but wish to resolve
their outstanding claims against each other;
NOW,
THEREFORE, in
consideration of the recitals, covenants, releases and agreements
contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the
Parties hereto agree as follows:
AGREEMENT
1.
Actions dismissed : No later than five business
days from delivery hereof, (a) Vermont Pure and the Hagens Berman
Parties will cause the Massachusetts State Court Action to be
dismissed with prejudice as to the claims between Vermont Pure and
the Hagens Berman Parties, by executing and filing a joint
stipulation of dismissal in the form attached hereto as Exhibit A;
and (b) Hagens Berman will cause the Federal Action to be dismissed
with prejudice, by executing and filing a stipulation of dismissal
in the form attached hereto as Exhibit B.
2.
General Releases : Subject only to the provisions of this
Agreement:
(a) Vermont Pure, for itself and all of its
respective parent companies, subsidiaries, divisions, affiliates,
predecessors, successors, assigns, and all companies owned or
controlled by them, and Baker and Rapaport, together with their
representatives, agents, heirs, executors and administrators, in
consideration of the mutual promises made herein, do hereby release
and forever discharge the Hagens Berman Parties and all of their
respective affiliates, predecessors, successors, assigns, and all
companies owned or controlled by them, and each of their past and
present partners (including without limitation Steve Berman),
agents, attorneys, officers, directors, shareholders, servants,
employees, representatives, agents, heirs, executors,
administrators, and insurers from any and all claims, potential
claims, demands, attorney's fees, costs, causes of action, actions,
suits, debts, sums of money, damages, and causes of action of every
kind or nature, whether known or unknown, suspected or unsuspected,
whether arising in law or equity, that they now have or have at any
time heretofore (from the inception of time) had against them,
including without limitation all claims which have been asserted or
could have been asserted in the Massachusetts State Court Action or
the Federal Action.
(b) Hagens Berman, for itself and all
of its respective affiliates, predecessors, successors, assigns,
and all companies owned or controlled by them, and Sobol, together
with his representatives, agents, heirs, executors and
administrators, in consideration of the mutual promises made
herein, do hereby mutually release and forever discharge the
Vermont Pure Parties and all of their respective parent companies,
subsidiaries, divisions, affiliates, predecessors, successors,
assigns, and all companies owned or controlled by them, and each of
their past and present officers, agents, attorneys (including
without limitation Dean F. Hanley and Jeffrey L. Williams),
officers, directors, shareholders, servants, employees,
representatives, agents, heirs, and executors from any and all
claims, potential claims, demands, attorney's fees, costs, causes
of action, actions, suits, debts, sums of money, damages, and
causes of action of every kind or nature, whether known or unknown,
suspected or unsuspected, whether arising in law or equity, that
they now have or have at any time heretofore (from the inception of
time) had against them, including without limitation all claims
which have been asserted or could have been asserted in the
Massachusetts State Court Action or the Federal Action.
3.
No Admission of Liability : The Parties acknowledge that
this Settlement Agreement is given in settlement of disputed claims
and is not, and shall not be construed as, an admission of
liability, or as an admission of the truthfulness of any of the
factual allegations made by either Party. All
Parties expressly deny all liability.
4.
No cooperation : The Vermont Pure Parties will
not voluntarily cooperate in any other litigation brought against
the Hagens Berman Parties, including without limitation by
voluntary provision of documents. The Vermont Pure
Parties may respond to lawful process including
subpoenas.
5.
Confidentiality :&
