Exhibit 10.21
SETTLEMENT AND RELEASE
AGREEMENT
This Settlement and
Release Agreement (the “Agreement”) is made and entered
into by and among the following parties: (1) ICU Medical, Inc.
(“ICU Medical”) and (2) Fulwider Patton Lee &
Utecht LLP (“Fulwider”). (ICU Medical and
Fulwider are collectively referred to in this Agreement as
“the Parties” and more fully described in
Section 1, below).
RECITALS
This Agreement is made
by and among the Parties with reference to the following
facts:
A.
ICU Medical named Fulwider as a defendant in an action filed in the
Superior Court of the
State of California, County of Orange, Case No. 040009340, (the
“Action”), seeking, among other things, damages
arising from acts and omissions relating to Fulwider’s
representation of ICU Medical. The operative pleading is the “Third
Amended Complaint [Etc.]” filed on or about February 21,
2006, by ICU Medical (the “Third Amended
Complaint”).
B.
ICU Medical has also named
Cardinal Health 303, Inc. (formerly known as IVAC Medical
Systems, Inc., IVAC Corporation, and Alaris Medical Systems, Inc.)
(“Alaris”) as a defendant in the Third Amended Complaint. The Parties
acknowledge that they are not, through this Agreement,
directly or indirectly, settling or releasing any of ICU
Medical’s claims against Alaris.
C.
Without admitting any liability or wrongdoing, ICU Medical and
Fulwider desire, by entering
into this Agreement and consummating the transactions contemplated
in this Agreement, to resolve, compromise and settle, amongst
themselves alone, the Action and all disputes, claims, and
controversies between or among
them which are based upon, arise out of, relate to, or have
any connection with: (1) the Action; and (2) the filing or
maintenance of the Action.
AGREEMENT
NOW, THEREFORE, in
consideration of the foregoing recitals and for good and
valuable consideration, the receipt of sufficiency of which
is acknowledged, the Parties, and each of them, warrant, represent,
acknowledge, covenant and agree as follows:
1.
DEFINITIONS
Unless otherwise defined
herein, all capitalized terms used herein shall have the
meanings given such terms
in this Agreement. In addition, for the purposes of this Agreement
only, the following specially defined terms shall have the
following meanings:
1.1
Person. Person shall mean and include a natural
person or person, a group of natural persons acting as individuals, a group of
natural persons acting in a collegial capacity (e.g., as a
committee, board of directors,
etc.), a corporation, partnership, limited liability company,
joint- venturers, trust,
or any other unincorporated association, business, organization, or
enterprise, any government agency, and any successor-in-interest,
heir, executor, administrator, trustee, trustee in
bankruptcy, or receiver of any person or entity.
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1.2
ICU Medical. ICU Medical shall mean ICU Medical, Inc., a
Delaware corporation, and
each of its past, present, and future employees, agents, officers,
affiliates, representatives, attorneys, predecessors,
successors, beneficiaries, grantees, transferees and assigns.
1.3
Alaris. Alaris shall mean Cardinal Health 303,
Inc., formerly known as IVAC Medical Systems, Inc., IVAC
Corporation, and Alaris Medical Systems, Inc., and each of its
past, present and future affiliates, predecessors,
successors, beneficiaries, grantees, transferees and assigns.
1.4
Fulwider. Fulwider shall mean Fulwider Patton Lee
& Utecht LLP, a California limited liability partnership, and
each of its past, present, and future partners, employees,
attorneys, insurers, predecessors, successors (including Fulwider
Patton LLP), beneficiaries, grantees, transferees
and assigns. The Parties agree
that, as used in this Agreement, the term Fulwider does not
include Alaris.
1.5
Fees. Fees shall mean and include all the fees
for professional services rendered by all attorneys, paralegals,
expert consultants and accountants and all expert witness fees, of
any kind whatsoever, inclusive.
1.6
Costs. Costs shall mean and include all: (1)
recoverable costs, including without limitation, disbursements and
invoices of counsel, accountants and experts; and (2) costs as may
be charged by any attorneys, expert consultants, accountants, and
expert witness for photocopying, telephone usage, word processing
time, computer research time, the preparation of
demonstrative evidence, the video recording of depositions,
postage, travel and meals, or for any other costs.
1.7
Claim. Claim shall mean any claims, causes of
action, cross-claims, liabilities, obligations, rights, demands,
damages, requests, suits, lawsuits, Fees, Costs, actions,
administrative proceedings, or orders, whether in law or equity,
and whether sounding in tort, contract, nuisance, trespass,
negligence, strict liability, or any Federal or State statutory or
common law claim or remedy of any type.
1.8
Effective Date Of This Agreement.
The Effective Date of this
Agreement shall be the last date as of which all Parties
have signed this Agreement.
1.9
Conventions. As used in this Agreement, the singular and
masculine gender shall mean also the plural and feminine or neuter,
as may be appropriate; the conjunctive includes the
disjunctive and the disjunctive includes the conjunctive; and
“each” and “all” includes each and
every.
2.
SETTLEMENT PAYMENT
2.1
Amount Of Settlement Sum.
Fulwider shall pay ICU Medical the sum equivalent to the
remaining policy limits under the Policy as of December 22, 2006,
which amount is Eight Million Dollars ($8,000,000.00) (the
“Settlement Sum”).
2.2
Payment Of Settlement Sum. Within thirty (30)
days of the Effective Date of this Agreement, payment shall be wire
transferred to ICU Medical, Inc. in accordance with instructions
from ICU Medical. In the event
that the full amount of the Settlement Sum is not transferred on
or before the time and
date specified in this paragraph 2.2, this Agreement shall be void
and the Action re-set for trial.
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3.
DISMISSAL OF FULWIDER FROM THE THIRD AMENDED
COMPLAINT
3.1
Execution, Delivery, and Filing of Request For
Dismissal. Upon confirmation of transfer of the
Settlement Sum to ICU Medical, ICU Medical shall cause its
attorneys in the Action, Kohut
& Kohut LLP (the “Kohut firm”), to execute and
deliver to the counsel for Fulwider, George M. Lindahl, of Lindahl & Beck
(“Lindahl & Beck”), the original of that certain
“Request for Dismissal with Prejudice” with respect to
Fulwider only, a copy of which is attached to this Agreement as
Exhibit “A”.
Upon receipt of the Request for Dismissal, Lindahl & Beck is
hereby authorized to and shall forthwith cause the Request for Dismissal
to be filed with the Clerk of the Orange County Superior
Court.
4.
CONTINUING EFFECT OF COURT ORDERS
4.1
Court Orders. The Parties agree that the
“Stipulation and Amended Protective Order”
(attached as Exhibit
“B” to the “Stipulation and Order re Amendments
to the Protective Order Entered by the Court May 27, 2005” and entered
on February 10, 2006 in the Action) (the “Amended
Protective Order”) shall
remain in effect as contractual obligations between the Parties,
and shall be specifically
enforceable by the Parties. Additionally, Fulwider agrees that,
subject to the Amended Protective Order, ICU Medical is entitled
to use, for the purposes of this Action and any subsequent
action involving Alaris, any
documents, discovery responses, materials and testimony produced
and/or given in the Action.
4.2
Execution, Delivery, and Filing of Stipulation Re: Return of
Injunction Bond. Upon confirmation of transfer of the
Settlement Sum to ICU Medical, Fulwider shall cause Lindahl
& Beck to execute
and deliver to the Kohut firm, the original of the
“Stipulation Re: Return of Injunction Bond” with
respect to the Action, a copy of which is attached to this
Agreement as Exhibit “B”. The Kohut firm is hereby authorized to cause
the Stipulation Re: Return of Injunction Bond to be filed
with the Clerk of the Orange County Superior Court.
4.3
Additional Steps Necessary to Return Injunction
Bond. Fulwider shall do all other things including, but not limited to, the
execution of additional documents, necessary to cause the
release and return of the Injunction Bond monies to ICU
Medical.
5.
DESTRUCTION OF DOCUMENTS BY FULWIDER
5.1
Destruction / Return of Documents.
Within thirty (30) days of the payment of the Settlement Sum, Fulwider shall destroy or
return to ICU Medical all copies of (a) all documents
obtained by Fulwider from ICU
Medical in connection with its representation of ICU Medical, (b)
all ICU Medical documents
obtained by Fulwider in connection with this Action, and (c) the
transcripts (and
videotape, if any) of the depositions of Dr. George Lopez, Frank
O’Brien, Rich Costello, Alison Burcar, Evelyn Foss, and Steve Nataupsky
taken in this action. Lindahl & Beck shall provide the
Kohut firm with a written
declaration from a partner at Lindahl & Beck confirming that
all copies of all such documents have been recovered from
Fulwider and destroyed.
6.
CONFIDENTIALITY
6.1
Confidentiality. ICU Medical agrees that neither
it nor any of its attorneys or other representatives will hold any press
conference or issue any press release or statement to the media
or via the internet concerning the terms of this Agreement,
except as consistent with their obligations
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