CONFIDENTIAL SETTLEMENT AGREEMENT
AND
GENERAL RELEASE
This
CONFIDENTIAL SETTLEMENT AGREEMENT AND GENERAL RELEASE (the “Agreement”), is
entered into as of this 21st
day of
December, 2007 by and among NanoSensors, Inc., a Nevada
corporation
(the “Company”), and Xxxxxx Xxxxx (the “Creditor”), with offices at
__________________________________. The Company and Creditor may be referred
to
collectively as the“Parties”
throughout this Agreement.
WHEREAS,
Creditor
has claimed that the Company is indebted to it for certain amounts;
and
WHEREAS,
the
Creditor and Company desire to
reach
a full and final settlement of all claims
that
Creditor may have against Company without resort to litigation; and
THEREFORE,
IT IS STIPULATED AND AGREED
among
the Parties that in
full
and complete satisfaction of all claims among the Parties, the Parties agree
as
follows:
1. Payment
by Company to Creditor.
The
Company agrees to pay Creditor the sum of $2,500 (the “Payment”) as quickly as
shall be practicable. This amount is payment to Creditor in full as a compromise
of any and all amounts owed by the Company to the Creditor.
2. Release
by Creditor.
For and
in consideration of the Payment, the Creditor, on behalf of itself and its
assigns, heirs, beneficiaries, creditors, representatives, subsidiaries, parent
companies, officers, employees, agents and affiliates (the “Releasing Parties”),
hereby fully and finally releases, acquits and forever discharges the Company,
and the officers, directors, partners, general partners, limited partners,
managing directors, members, stockholders, trustees, shareholders,
representatives, employees, principals, agents, affiliates, parents,
subsidiaries, joint ventures, predecessors, successors, assigns, beneficiaries,
heirs, executors, personal or legal representatives, insurers and attorneys
of
any of them (collectively, the “Released Parties”), from any and all actions,
debts, claims, counterclaims, demands, liabilities, damages, causes of action,
costs, expenses, accounts, covenants, contracts, agreements and compensation
of
every kind and nature whatsoever, past, present, or future, at law or in equity,
whether known or unknown, which such Releasing Parties, or any of them, had,
has, or may have had at any time in the past until and including the date of
this Agreement against the Released Parties, or any of them, including but
not
limited to any services performed by the Creditor for the Company and any
invoices or charges submitted by the Creditor to the Company. Creditor
acknowledges and agrees that the release it gives to the Company hereunder
applies to all claims for injuries, damages, or losses to its own person and
property, real or personal, economic damages and/or economic injury or to those
injuries, damages, or losses that are known or unknown, foreseen and unforeseen,
patent or latent which it may have against the Company. The Creditor waives
the
application of California Civil Code §1542. Further, the Creditor agrees that
all existing contracts between the Company and the Creditor are hereby
terminated.
3. Waiver
of California Civil Code §1542.
The
Creditor certifies that it has read the following provisions of California
Civil
Code §1542:
A
general
release does not extend to claims which the creditor does not know or suspect
to
exist in his favor at the time of executing the release, which if known by
him
must have materially affected his settlement with the debtor.
Creditor
understands and acknowledges that the significance in consequence of this waiver
of California Civil Code §1542 is that even if it should eventually suffer
additional damages arising out of the facts referred to herein, it will not
be
able to make any claim for those damages. Furthermore, Creditor acknowledges
that it consciously intends these consequences even as to claims for damages
that may exist as of the date of this Agreement, but which it does not know
exist, and which, if known, would materially affect its decision to execute
this
Agreement, regardless of whether its lack of knowledge as a result of ignorance,
oversight, error, negligence, or any other cause.
4. Attorney
Representation.
The
Creditor warrants and represents in executing this Agreement it has had an
opportunity to obtain legal advice from the attorney of its choice; and that
the
terms of this Agreement have been read and its consequences have been completely
explained to it by that attorney and that it fully understands the terms of
this
Agreement. The Creditor further acknowledges and represents that, in executing
this Agreement it is has not relied on the inducements, promises, or
representations made by any party. Creditor is aware that it or its attorneys
may hereafter discover facts different from or in addition to the facts that
it
now knows or believes to be true with respect to the subject matter of this
Agreement or the other Party hereto, but that it is its intention to fully
and
finally release the Company and the other Released Parties to the full extent
of
the releases contained in this Agreement, and to otherwise agree to the other
terms and conditions of this Agreement.
5. Covenant
Not To Xxx.
The
Creditor further agrees not to institute any litigation, lawsuit, claim, action
or other proceeding, assert any right or claim for damages or loss or for any
equitable relief that it may have against the Company or any Released Party
with
respect to any and all claims released under this Agreement.
6. No
Reliance.
The
Creditor hereby represents and warrants that it has access to adequate
information regarding the terms of this Agreement, the scope and effect of
the
releases set forth herein, and all other matters encompassed by this Agreement
to make an informed, knowledgeable and independent decision with regard to
entering into this Agreement. The Creditor further represents and warrants
that
it has not relied upon the Company, or the Released Parties in deciding to
enter
into this Agreement and has instead made its own independent analysis and
decision to enter into this Agreement.
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7. No
Assignment.
The
Creditor represents and warrants that it is the sole and lawful owner of all
rights, titles and interest in and to every claim and other matters which it
releases herein, and that no other person, individual, or entity has received
any assignment or other right of substitution or subrogation to any matters
relating to or arising out of the claims against the Released Parties released
herein. Creditor further represents, warrants, and agrees that no legal
proceeding or other action, including an arbitration proceeding, has been filed
in any forum arising out of, from, or in connection with any disputes or claims
arising out of or related to the claims released in this Agreement.
8. Sufficiency
of Consideration.
The
Creditor acknowledges that the Payment provides good and sufficient
consideration for every promise, duty, release, obligation, agreement and right
contained in this Agreement.
9.
Confidentiality. The
Creditor shall not directly or indirectly disclose or make any statement
(written or oral) to any person, firm or entity not a party to this Agreement
with respect to the matters covered by this Agreement, execution of this
document, the settlement, the terms and conditions of the settlement,
disclosures and representations made in this document, or anything else in
connection with this matter except for any disclosure required to comply with
any governmental rule, law, statute, regulatory requirement, arbitration or
court proceeding. If Creditor receives a subpoena or order, which seeks to
compel disclosure of this agreement, it shall afford the Company five (5) days
notice to quash or limit such subpoena or order.
10. No
Admission of Liability.
The
Parties acknowledge and agree that this Agreement is being executed in order
to
resolve and forever set at rest all the claims of whatever nature that Creditor
may have against the Company, and that neither the Agreement or general releases
set forth herein nor the underlying settlement constitute or are to be construed
as an acknowledgment or admission of any liability whatsoever, any such
liability being expressly denied.
11. Multiple
Counterparts.
This
Agreement may be executed in a number of identical counterparts, all of which
shall constitute one agreement. A fully executed copy, including xerox or
facsimile copies, together with any signatures thereon, shall be deemed an
original for all purposes.
12. Severability.
The
provisions of this Agreement are severable, and if any part of it is found
to be
unenforceable, the surviving portions shall remain fully enforceable.
13. General.
This
Agreement: (a) shall not be assignable by the Creditor except with the written
consent of the Company; (b) shall be binding upon and shall inure to the benefit
of, the parties hereto and their respective successors and assigns; (c) may
not
be amended or modified, nor may compliance with any condition or covenant set
forth herein be waived, except by a writing duly and validly executed by the
Company and the Creditor or, in the case of a waiver, the party waiving
compliance, and no delay on the part of any party in exercising any right,
power
or privilege hereunder shall operate as a waiver thereof, nor shall any waiver
on the part of any party of any such right, power or privilege, or any single
or
partial exercise of any such right, power or privilege, preclude any further
exercise thereof or the exercise of any other such right, power or privilege;
and (d) constitutes the entire agreement between the parties with respect to
the
subject matter hereof and supercedes all prior or contemporaneous agreements,
understandings or communications.
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14. Construction. The
language of this Agreement shall be construed as a whole, according to its
fair
meaning, and not strictly for or against either of the Parties. For
purposes of construction, this Agreement shall be deemed to have been drafted
by
all the Parties, and no ambiguity shall be resolved against any Party by virtue
of his or her participation in the drafting of this agreement. Section headings
have been inserted for convenience of reference only and are not intended to
be
a part of, or to affect, the meaning or interpretation of this
Agreement.
15.
Governing
Law.
This
Agreement shall be governed by and construed in accordance with the domestic
laws of the State of California without giving effect to any choice or conflict
of law provision or rule (whether of the State of California or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of California. The Parties (a) agree that any legal suit,
action or proceeding arising out of or relating to this Agreement shall be
instituted exclusively in United States District Court for the Northern District
of California, (b) waives any objection which any Party may have now or
hereafter to the venue of any such suit, action or proceeding, and (c)
irrevocably consent to the jurisdiction of the United States District Court
for
the Northern District of California in any such suit, action or procedure.
In
the event of any suit action or proceeding arising out of or relating to this
Agreement, the prevailing party shall be entitled to reasonable legal fees
and
related expenses as may be awarded by the court.
16. Notices.
All
notices, requests, demands, claims, and other communications hereunder will
be
in writing. Any notice, request, demand, claim, or other communication hereunder
shall be deemed duly given if (i) (and then three business days after) it is
sent by registered or certified mail, return receipt requested, postage prepaid,
or (ii) sent by overnight courier service, and addressed to the intended
recipient as set forth below:
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If
to the Creditor:
Xxxxxx
Xxxxx
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If
to the Company:
NanoSensors,
Inc.
0000
Xxxxxxxx Xxxxxxxxx
Xxxxxxx
Xxxx, XX 00000
Fax:
(000) 000-0000
Attn.:
Xxxx Xxxxx
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Any
Party
may send any notice, request, demand, claim, or other communication hereunder
to
the intended recipient at the address set forth above using any other means
(including personal delivery, expedited courier, messenger service, fax or
ordinary mail), but no such notice, request, demand, claim, or other
communication shall be deemed to have been duly given unless and until it
actually is received by the intended recipient. Any Party may change the address
to which notices, requests, demands, claims, and other communications hereunder
are to be delivered by giving the other Parties notice in the manner herein
set
forth.
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17. Due
Execution.
Each
Party represents and warrants that its execution, delivery and performance
of
this Agreement and the consummation of the transactions contemplated hereby,
including the release of claims by Creditor, is within each Party’s powers and
that each Party has been duly authorized by all necessary corporate or other
action
IN
WITNESS WHEREOF, the Parties have caused their duly authorized representatives
to execute this Agreement as of the date first set forth above.
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NANOSENSORS,
INC.
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By:
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/s/
Xxxx Xxxxx
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Name:
Xxxx Xxxxx
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Its
Chief Financial Officer
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CREDITOR:
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By:
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/s/
Xxxxxx Xxxxx
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Name:
Xxxxxx Xxxxx
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