1

 
Pennsylvania corporation with principal office at 1012 Robin Drive, West Chester, Pennsylvania, andany Person that, at any time, directly or indirectly, controls, is controlled by or under commoncontrol with A:/SCRIBES, LLC. (including without limitation its assigns or successors-in-interest);(iii) Janice Archbold, including her heirs and assigns; and (iv) Timothy Simard, including hisheirs and assigns.     1.3. “Anthurium Patents” means: (i) the ‘998 Patent and United States Patent No. 6,604,124;(ii) any patent owned or controlled by Anthurium as of the Effective Date; (iii) any patent whichissues after the Effective Date from an application owned or controlled by Anthurium prior to theEffective Date; and (iv) any and all patents and applications from which any or all of the patentsdescribed in subparagraphs (i)-(iii) claim priority or are derived through continued prosecution,division, continuation, continuation-in-part, reissue, reexamination, extension, or foreignprosecution.     1.4. “Effective Date” shall mean the last date upon which this Agreement has been executed byboth Anthurium and MedQuist.     1.5. “MedQuist” means, collectively, (i) MedQuist Inc., a New Jersey corporation, with itscorporate headquarters located at Mount Laurel, New Jersey, (ii) the MedQuist Affiliates, and (iii)the respective assignees and successors-in-interest of each of the foregoing.     1.6. “MedQuist Affiliate” means any Person, including but not limited to any MedQuist Company,that, at any time, directly or indirectly, controls, is controlled by, or is under common controlwith, MedQuist (including without limitation its assigns or successors-in-interest). For thepurpose of this definition and the definition of Anthurium Affiliates and Related Parties, the term“control” means the possession, directly or indirectly, of the power to direct or cause thedirection of the management and policies of such entity, whether through ownership of votingsecurities (as to which ownership of 50% or more establishes control) or other interests, bycontract or otherwise, including, in the case of a trust, the power to appoint or remove trusteesor otherwise direct the trust’s affairs. The terms “is controlled by or “is under common control”have the correlative meanings. For the purposes of clarity and without limitation this definitionis expressly intended to cover (a) CBay Systems Holdings, Ltd. (“CBay Holdings”) and the medicaltranscription companies controlled by CBay Holdings, but (b) is expressly not intended to coverS.A.C. PEI CB Investment, L.P. (“S.A.C.”), or any other companies controlled by S.A.C. (except intheir capacity as direct or indirect owner of MedQuist), other than the companies falling underitem (a).     1.7. “MedQuist Company” means MedQuist Inc., MedQuist CM LLC, MedQuist IP LLC, MedQuist CanadaCompany, MedQuist of Delaware, Inc., MedQuist Transcriptions, Ltd., LCH Australia, Inc., LCH Canadaor Speech Machines Limited.     1.8. “MedQuist Product” means any product, component, device, software, system or servicemade, used, sold, offered for sale, exported or imported for sale by MedQuist.     1.9. “Owned or Controlled” means, with respect to a Anthurium’s relationship to a patent,patent application or invention, as of the specified time being (a) owned by Anthurium, (b) ownedby a third party that is contractually obligated to assign such patent, patent application orinvention to Anthurium and (c) held under license by Anthurium, with the
2

 
sufficient rights to grantto MedQuist the rights granted under this Agreement, including without limitation the rightsgranted under Articles 2 and 3.     1.10. “Parties” or “Party” means the signatories to this Agreement (Anthurium and MedQuist),collectively and individually.     1.11. “Patents” means (i) all classes or types of patents, including utility patents, utilitymodels, design patents, invention certificates, reexaminations, reissues, extensions and renewals,in all jurisdictions of the world; and (ii) all applications (including provisional andnonprovisional applications), continuations, divisionals, and continuations-in-part, for theseclasses or types of patents in all jurisdictions of the world. The term “Patents” does not includeany copyrights, trademarks, mask work rights, or trade secret rights.     1.12. “Person” means a person or legal entity, including without limitation an entityorganized as a corporation, partnership, limited liability partnership and limited liabilitycompany.2. **RELEASES AND GRANTS**     2.1. **Release of MedQuist.**In consideration of the releases and rights granted in favor of andto Anthurium in this Agreement, Anthurium hereby releases and discharges MedQuist from any and allpast or present claims, demands, actions, causes of action, suits of any kind or nature, rights,damages, costs, losses, expenses and compensation, in each case whether known or unknown, arisingfrom or related to in whole or part any act occurring or circumstance arising on or before theEffective Date, including, without limitation, any infringement of any Patent. For the avoidance ofdoubt, the foregoing release shall become effective and irrevocable upon the execution of thisAgreement and the payment of the amount specified in Section 4.1.     2.2. **Release of Anthurium.**In consideration of the releases and rights granted in favor ofand to MedQuist in this Agreement, MedQuist hereby releases and discharges Anthurium from any andall past or present claims, demands, actions, causes of action, suits of any kind or nature,rights, damages, costs, losses, expenses and compensation, in each case whether known or unknown,arising from or related to in whole or part any act occurring or circumstance arising on or beforethe Effective Date, including, without limitation, any claims that were or mayhave been brought in the Lawsuit, and expressly including all claims that were the subject ofMedQuist’s motion to amend its answer and counterclaim. For the avoidance of doubt, the foregoingrelease shall become effective and irrevocable upon the execution of this Agreement and the paymentof the amount specified in Section 4.1.     2.3. **Anthurium License to MedQuist**. Subject to the payment provided under Section 4.1,Anthurium hereby grants to MedQuist, and MedQuist hereby accepts, a non-exclusive, non-transferable(subject to Section 8.1), fully paid-up, royalty-free, worldwide license, without the right tosublicense, under the Anthurium Patents to make, have made, use, have used, import, have imported,export, have exported, offer to sell, sell and have sold, MedQuist Products. This license shallcontinue until the expiration of the last to expire of the Anthurium Patents. For the avoidance ofdoubt, the license includes “have made” rights which apply to any MedQuist Product covered by anAnthurium Patent that is manufactured or produced by a third party and sold by MedQuist.
3

 
3. **LIMITED COVENANTS NOT TO ASSERT**     3.1. **Covenant Not To Assert Against MedQuist**. Once the payment specified in Section 4.1 ismade, for a period of three (3) years following the Effective Date, Anthurium hereby covenants notto assert against MedQuist any claim, whether known or unknown as of the Effective Date, whetherexisting in the past, currently existing or which arises after the Effective Date, which claimarises from or is related to any infringement, misappropriation or violation of any intellectualproperty right (other than a trademark right), and hereby fully and finally waives any damages thatmay arise or accrue with respect to such claims during such three-year period. This covenant notto assert shall not restrict Anthurium from bringing a counterclaim in response to any suit broughtby MedQuist against Anthurium.     3.2. **Responsibilities of the Assignees of the Patent in Suit**. In the event that Anthuriumtransfers or assigns ownership and/or control of any of the Anthurium Patents, such transfer orassignment shall be subject to the release, license and covenant not to assert set forth inArticles 2 and 3 of this Agreement, and such transfer or assignment shall not become effectiveunless and until the transferee party agrees in writing to be bound by this Agreement and to acceptAnthurium’s rights and obligations hereunder as applicable to such transferred Anthurium Patents.4. **PAYMENT**     4.1. **Payment and Date**. In return for the licenses, release and other consideration set forthherein, MedQuist will pay to Anthurium a lump sum of $5,750,000 U.S. Dollars and CBay Holdings willpay to Anthurium a lump sum of $100,000 U.S. Dollars. These payments will be made within five (5)days from the Effective Date of this agreement. Both Parties agree that this is just and fairconsideration. These payments to Anthurium shall be made to the Client Trust account of the firmof Holland & Knight, as follows:Bank of America IOLTA accountBank of AmericaABA #: 026009593Account #: 9429149562Account Name: Holland & Knight LLP IOLTA accountFor further credit to: 111739.000045. **DISMISSAL**     5.1. **Dismissal**. Within five (5) days of the payment described in Section 4.1, above, theParties shall file a Stipulation of Dismissal of the Lawsuit With Prejudice in the form attached asExhibit A.     5.2. **No Admission of Liability.**The Parties expressly agree and acknowledge that by enteringinto this Agreement no Party admits any liability, wrongdoing or the truth of any allegationcontained in any claim, defense or counterclaim alleged in the Lawsuit. Neither this Agreement norany release contained within it may be construed or used as an admission of any issues, facts,wrongdoing, liability, or violation of law whatsoever.
4

 
     5.3. **Each Party to Pay Its Own Legal Fees**. The Parties shall each pay their own legal feesand costs incurred in connection with the Lawsuit.6. **REPRESENTATIONS AND WARRANTIES**     6.1. **Anthurium’s Sole Right and Authority**. Anthurium represents and warrants that it is thesole owner of the ‘998 Patent and the Anthurium Patents and possesses all rights necessary to grantthe releases, licenses and covenants not to assert granted to MedQuist hereunder. Anthuriumfurther warrants that (i) no ownership interest in the ‘998 Patent or any Anthurium Patent is heldby any third party, and (ii) the ‘998 Patent and the Anthurium Patents are not subject to anyencumbrance, lien or claim of ownership by any third party.     6.2. **Sole Owner of Claims**. Each Party represents and warrants to the other Party that: (i)it is the sole owner of the claims or causes of action released in this Agreement and has notpreviously assigned or transferred, or purported to assign or transfer, any interest in such claimsor causes of action to any other person or entity; and (ii) it is not in a disparate bargainingposition with respect to the negotiation of this Agreement.     6.3. **MedQuist’s Sole Right and Authority**. MedQuist represents and warrants that it has thefull authority to enter into this Agreement on behalf of MedQuist (including on behalf of allMedQuist Affiliates and Companies) and is competent to do so; and that this Agreement constitutesthe legal, valid and binding obligation of MedQuist enforceable against MedQuist in accordance withits terms.     6.4. **Anthurium’s Sole Right and Authority**. Anthurium represents and warrants that it has thefull authority to enter into this Agreement on behalf of Anthurium (including on behalf of allAnthurium Affiliates and Related Parties) and is competent to do so; and this Agreement constitutesthe legal, valid and binding obligation of Anthurium enforceable against Anthurium in accordancewith its terms.     6.5. **Signature Authority**. The persons signing this Agreement each represent that they areduly authorized, with full authority to bind the Parties, and that no signature of any other personor entity is necessary to bind the Parties.7. **CONFIDENTIALITY**     7.1. **Confidentiality**. Except for disclosure (i) pursuant to an order or subpoena of a courtor governmental agency; (ii) to persons with a “need to know” respecting corporate, financial,legal and contract matters, including insurers, lenders, investment bankers, auditors andcontracting partners, who also agree to treat such information as confidential; or (iii) as mayotherwise be required by law, the parties agree to keep the contents of this Agreementconfidential. In the event that production of this Agreement is responsive to a discovery requestreceived by a party in connection with litigation, this Agreement may be produced only if there isa Protective Order that limits disclosure of the Agreement to outside counsel only and theAgreement is properly designated under the provisions of the applicable Protective Order. To theextent that a Party to this Agreement is required to disclose the financial terms of this Agreementpursuant to applicable law, regulation, discovery request or court order, such Party shall promptlyinform the other Party of such requirement for disclosure and shall afford the
5

 
other Partysufficient opportunity to limit such disclosure or to seek appropriate protective orders before anyinformation is disclosed.     7.2. **Public Statements Regarding this Agreement**. Upon execution of this Agreement, Anthuriummay disclose solely that it has settled the Lawsuit with MedQuist and has granted MedQuist anon-exclusive license, and shall not disclose any other terms of this Agreement.8. **OTHER REPRESENTATIONS, ACKNOWLEDGEMENTS AND AGREEMENTS**     8.1. **Successors, Assigns and Beneficiaries**. This Agreement shall inure to the benefit of andshall be binding upon the Parties hereto and their successors, assigns, representatives, andbeneficiaries. MedQuist may assign this Agreement (i) to any MedQuist Affiliate, (ii) inconnection with the sale of the stock of MedQuist, any merger of MedQuist or the sale ofsubstantially all of the assets of MedQuist which relate to the subject matter of this Agreement,to the Person that is the party to that transaction with MedQuist. In the event that, after theEffective Date, a Person that is not at such time a MedQuist Affiliate (a) acquires control ofMedQuist through the acquisition of 50% or more of MedQuist’s securities or (b) acquiressubstantially all of the assets of MedQuist, or (c)MedQuist is merged into such Person, and at the time of such acquisition or merger, suchPerson has or had in the past products or services covered by the Anthurium Patents, (the “AcquirerProducts or Services”), then following such acquisition or merger MedQuist (or in the case of anasset acquisition or where MedQuist is merged into another entity that is not a holding company,those portions of such acquirer or merged entity that comprise the business of MedQuist that wasacquired or merged, hereafter the “MedQuist Business”) shall continue to have all rights andbenefits hereunder for its existing and future products and services, but such rights and benefitsshall not apply to the Acquirer Products or Services or any future products or services that may beintroduced by those portions of such acquirer’s business that are distinct from MedQuist or theMedQuist Business, as the case may be (collectively, the “Other Products”). Such Other Productsshall not be MedQuist Products hereunder and shall not have the benefit of the release, license orcovenant not to assert granted hereunder.     8.2. **Non-Cooperation.**MedQuist acknowledges and agrees that the Anthurium Patents are valid.MedQuist warrants and agrees that it shall not, directly or indirectly, challenge the validity of,or attempt to limit the scope of, the Anthurium Patents, whether in a court proceeding, in areexamination proceeding, or otherwise, nor will MedQuist assist, directly or indirectly, any thirdparty in doing so, except (a) as required by law, regulation or court order and (b) withoutlimiting Sections 2.3 and 3.1, in defense to any claim asserted against MedQuist under any suchAnthurium Patent.     8.3. **Attorneys’ Fees**. In any litigation, arbitration or court proceeding between the Partiesregarding the enforcement of any terms of this Agreement, the prevailing party shall be entitled toreasonable attorneys’ fees and expenses and all costs of proceedings incurred in enforcing thisAgreement.     8.4. **Jurisdiction and Choice of Law**. This Agreement shall be interpreted, and the rights andduties of the parties hereto shall be determined, in accordance with the laws of the State ofDelaware, without regard to its conflicts of laws provisions. Any action brought to
6

 
enforce theprovisions of this Agreement shall be commenced in the United States District Court for the EasternDistrict of Texas.     8.5. **Entire Understanding**. This Agreement and any attachments hereto constitute a single,integrated written contract expressing the entire agreement of the Parties and shall not bemodified, supplemented, or repealed except by a writing signed by each of the Parties. Nocovenants, agreements, representations, or warranties of any kind whatsoever have been made by anyParty, except as specifically set forth in this Agreement. All prior discussions, writtencommunications, and negotiations have been merged and integrated into and are superseded by thisAgreement.     8.6. **Execution of Counterparts**. This Agreement may be executed in one or more counterparts,each of which shall be deemed to be an original and all executed counterparts together shall bedeemed to be one and the same instrument.     8.7. **Construed as Jointly Prepared**. This Agreement shall be construed as if the Partiesjointly prepared it and any uncertainty or ambiguity shall not be interpreted against any one Partybecause of the manner in which this Agreement was drafted or prepared.     8.8. **Invalidity**. If any provision of this Agreement is held invalid, illegal, orunenforceable, the remaining provisions shall not be affected. The Parties shall consult and usetheir reasonable and best efforts to agree upon a valid and enforceable provision, which shall be areasonable substitute for the invalid, illegal or unenforceable provision.     8.9. **Notices**. All notices under this Agreement shall be in writing and delivered by facsimiletransmission, overnight express mail, same or next day courier service, or by personal delivery tosuch Party at the address given below, or such other address as provided by a Party by writtennotice:        Anthurium: Anthurium Solutions, Inc.