SETTLEMENT AGREEMENT AND RELEASE
Exhibit 10.1
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release (the “Agreement”) is made by and between P. Xxxxxxx
Xxxxxxxx (the “Consultant”) and Remedent, Inc., a Nevada corporation (the “Company”) as of November
16, 2006.
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A. The Consultant and the Company have previously entered into a Consulting Agreement
effective as of January 1, 2006 (the “Consulting Agreement”) pursuant to which the Consultant
agreed to perform certain consulting and development services relating to the dental and oral care
markets; and the Company agreed to pay for such services pursuant to the terms and conditions set
forth in the Consulting Agreement.
B. The Consultant and the Company have also previously entered into a Non-Qualified Stock
Option Agreement dated May 29, 2006 relating to a grant of an option to purchase 150,000 shares of
the Company’s common stock.
C. Disputes between the Consultant and Company have arisen in connection with the Consulting
Agreement, and the Consultant and Company desire to resolve such disputes according to the terms
and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements
contained in this Agreement, the parties hereby agree as follows:
AGREEMENT
1. Defined Terms. For all purposes of this Agreement, except as otherwise expressly
provided herein or otherwise referenced herein, all capitalized terms used herein shall have the
meanings attributed to them by the Consulting Agreement.
2. Termination of Consulting Period. The parties hereby agree that the Consulting Period
shall terminate concurrently with the execution of this Agreement by both parties (the “Effective
Date”). As of the Effective Date, the Consultant shall have no obligation to provide the Company
with any consulting and developing services set forth under Section 2 of the Consulting Period; and
except for the Settlement Payment (as defined below in Section 3 below) the Company shall have no
obligation to make any payments to the Consultant.
3. Assignment of M-White.
(a) Assignment. The Company hereby assigns and transfers to the Consultant any and
all right, title, interest, free and clear of any and all liens and encumbrances, in the
development product known as the M-White which is a musical, sound and harmonic energy tooth
whitening system (“M-White”).
(b) Consideration. In consideration for the assignment of the M-White by the Company
to the Consultant, the Consultant hereby surrenders his option to purchase an aggregate of 150,000
shares of the Company’s common stock at an exercise price of $2.60 per share (the “Option”), which
were granted pursuant to the Non-Qualified Stock Option Agreement dated as of May 29, 2006 by and
between the Consultant and the Company (the “Option Agreement”). As of the Effective Date, the
Consultant shall have no rights to the Option and the Option Agreement shall be terminated,
cancelled, void and have no effect.
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4. Payment. Pursuant to the terms and conditions of this Agreement, the Company hereby
agrees to pay the Consultant $65,000 (the “Settlement Payment”), which Settlement Payment shall be
paid in the form of wire transfer which shall be initiated no later than two (2) business days
following the Effective Date. In consideration for the Settlement Payment by the Company to the
Consultant, the Consultant hereby compromises and settles any and all past, present, or future
claims, demands, obligations, or causes of action for compensatory or punitive damages, costs,
losses, expenses, and compensation, whether based on tort, contract, or other theories of recovery,
that the Consultant now has or may hereafter have against the Company, its successor in interest,
heirs, and assigns arising from the subject matter of the Consulting Agreement and the related
Confidentiality Agreement; and releases all claims referenced in this Agreement; and agrees that
this Agreement shall constitute a bar to all such claims.
5. General Release and Unknown Claims.
a. Release and Discharge. The Consultant acknowledges that he enters this Agreement
freely and voluntarily. The Consultant hereby irrevocably and unconditionally releases and forever
discharges the Company, its respective officers, agents, shareholders, directors, supervisors,
attorney, agents, related entities, representatives, employees, affiliates and its successors and
assigns and all persons acting by, through, under or in concert with any of them from any and all
charges, complaints, grievances, claims, actions, and liabilities of any kind (including attorneys’
fees, interest, expenses and costs actually incurred) of any nature whatsoever, known or unknown,
suspected or unsuspected (hereinafter referred to as “Claims”), which the Consultant had, has or
may have in the future, arising out of the Consultant’s relationship, in whatever capacity, with
the Company. All such Claims are forever barred by this Agreement and without regard to whether
these Claims are based on tort, contract, other theories of recovery or any claim or cause of
action regardless of the forum in which it may be brought.
b. Waiver of Section 1542 of the Civil Code. The Consultant hereby certifies that he
has read the following provisions of Section 1542 of the Civil Code of the State of California
(“Section 1542”) and understands that the release and discharge he is giving pursuant to this
Agreement covers and includes all claims whether based upon contract, tort, statute or any other
legal or equitable theory of recovery, whether known or unknown, suspected or unsuspected, matured
or not matured, fixed or contingent, and whether due in the past, present or future and he hereby
EXPRESSLY WAIVES ANY AND ALL RIGHTS AND BENEFITS UNDER SECTION 1542. SECTION 1542 PROVIDES AS
FOLLOWS:
“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 OR HER OR HER SETTLEMENT WITH THE DEBTOR.”
Consultant’s Initials
6. Return of Company Property. The Consultant represents and warrants that he has returned
or will return to the Company all of the Company’s Confidential Information in tangible form,
including any memoranda, customer lists, notes, records, reports, manuals and files in any media,
including electronic, and other documents (including extracts and copies thereof) relating to the
Company, that Consultant may have in Consultant’s possession or control; and he has destroyed any
electronic copies of such Confidential Information.
7. Actions Contrary to Law. Nothing contained in this Agreement shall be construed to
require the commission of any act contrary to law, and whenever there is any conflict between any
provision of this
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Agreement and any statute, law, ordinance, or regulation, contrary to which the parties have no
legal right to contract, then the latter shall prevail; but in such event, the provisions of this
Agreement so affected shall be curtailed and limited only to the extent necessary to bring it
within legal requirements. In the event that any provision of this Agreement should be held to be
void, voidable or unenforceable, the remaining portions hereof shall remain in full force and
effect.
8. Effect of Agreement. Except as expressly modified by the provisions hereof, the
Consulting Agreement and the Confidentiality Agreement is in all respects ratified and confirmed,
and shall continue in full force and effect in accordance with their respective terms. To the
extent that there are any inconsistencies among this Agreement and the Consulting Agreement and the
Option Agreement, the terms and provisions of this Agreement shall prevail.
9. Entire Agreement. The Consulting Agreement, Confidentiality Agreement and this
Agreement, taken as a whole, shall supersede any and all agreements, either oral or written,
between the parties with respect to their subject matter. Each Party acknowledges that no
representations, inducements, promises, or agreements, orally or otherwise, have been made by any
party or anyone acting on behalf of any party, which are not embodied herein, in the Consulting
Agreement or the Confidentiality Agreement and that no other agreement, statement, or promise shall
be valid or binding.
10. Confidentiality; No Public Announcement. The Consultant hereby agrees not to disclose
the details of the transactions covered by this Agreement or the Consulting Agreement, directly or
indirectly, under any circumstances or by any means to any third party or make any public statement
regarding the transactions contemplated hereby, with the prior written consent of the Company,
except as required by law.
11. Governing Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of California, without regard to conflicts of laws principles.
12. Jurisdiction. The parties hereby consent to the exclusive jurisdiction of the state
and federal courts sitting in California in the venue of Sacramento County in any action on a claim
arising out of, under or in connection with this Agreement or the transactions contemplated by this
Agreement.
13. Attorneys’ Fees. In the event of any litigation, arbitration, or other proceeding
arising out of this Agreement, or the parties’ performance as outlined herein, the prevailing party
shall be entitled to an award of costs, including an award of reasonable attorneys’ fees. Any
judgment, order, or award entered in any such proceeding shall designate a specific sum as such an
award of attorneys’ fees and costs incurred. This attorneys’ fee provision is intended to be
severable from the other provisions of this Agreement, shall survive any judgment or order entered
in any proceeding and shall not be deemed merged into any such judgment or order, so that such
further fees and costs as may be incurred in the enforcement of an award or judgment or in
defending it on appeal shall likewise be recoverable by further order of a court or panel or in a
separate action as may be appropriate.
14. Amendment; Waiver. No amendment or variation of the terms of this Agreement shall be
valid unless made in writing and signed by the Consultant and the Company. A waiver of any term or
condition of this Agreement shall not be construed as a general waiver by the Company. Failure of
either the Consultant or the Company to enforce any provision or provisions of this Agreement shall
not waive any enforcement of any continuing breach of the same provision or provisions or any
breach of any provision or provisions of this Agreement.
15. Acknowledgement/Ambiguities. The parties have read this Agreement and they are fully
aware of and understand its contents and its legal effect. Accordingly, the parties agree that
this Agreement shall not
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be construed against a party and that the usual rule of construction that an agreement is construed
against the party which drafted it shall not apply.
16. Parties Effected. This Agreement and the promises and covenants herein shall be
binding upon, inure to the benefit of, and be enforceable by the officers, directors, shareholders,
employees, parties, affiliates, representatives, heirs, beneficiaries, successors, spouses and
assigns of each of the parties hereto.
17. Voluntary. Each party acknowledges that it enters into this Agreement freely and
voluntarily and is not acting under coercion, duress, menace, economic compulsion, not is entering
into this Agreement because of any supposed disparity in any bargaining power; rather, each is
freely and voluntarily signing this Agreement for its or his own benefit. Each party signing this
Agreement warrants he or it has full authority to execute this Agreement and agrees to be bound by
its terms.
18. Counterparts. This Agreement may be signed in one or more counterparts (by facsimile
or otherwise), all of which shall be treated as one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date set forth
below.
| THE CONSULTANT | ||||||||
Dated: |
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| THE COMPANY | ||||||||||
| Dated: | REMEDENT, INC. | |||||||||
| By: | ||||||||||
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