RELEASE AND SETTLEMENT AGREEMENT
Exhibit
10.9
This
Release and Settlement Agreement (“Settlement Agreement”) is entered into as of
June 22, 2009 (the “Effective Date”) between and among, on the one
hand, Xxxxx Xxxxxxx and Xxxxx Xxxxxxx International, Inc. (both hereinafter
referred to as “the Sassoon Parties”) and MCM Environmental Technologies, Inc.,
Caprius, Inc., Xxxxxx Xxxxx (hereinafter referred to as “the Caprius Parties”,
and collectively with the Sassoon Parties, the “Parties”); and
WHEREAS,
on December 17, 2002, the Sassoon Parties entered into an agreement with MCM
Environmental Technologies, Inc., its subsidiary MCM Environmental Technologies,
Ltd. and the then existing stockholders of MCM Environmental Technologies, Inc.,
which are identified in said agreement (hereinafter, the “Sassoon Agreement”);
and
WHEREAS,
on or about May 2, 2006, Sassoon commenced a civil action against the Caprius
Parties in the matter styled Xxxxx Xxxxxxx and Xxxxx Xxxxxxx
International, Inc. v. MCM Environmental Technologies, Inc., Caprius, Inc.,
Xxxxxx Xxxxx, Moledet Ackzakot 2000, Aguda Chaklait Shitufit, Ltd., Trefoil Tech
Investors, L.P., M.G. Strategy Development and Export Development, Ltd., Mezam
Capital Funds Management (Israel), Ltd., Xxxx Xxxxxxxx and Xxxx Addady,
which action was commenced in the Supreme Court of the State of New York in the
County of New York, Index No. 601535/2006 (the “Litigation”); and
WHEREAS,
in the Litigation, Sassoon asserted claims seeking recovery for alleged breach
of contract of the Sassoon Agreement and certain other tort claims relating to
the Sassoon Agreement; and
WHEREAS,
the Caprius Parties denied liability on any claims in the Litigation;
and
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WHEREAS,
the Parties recognize the uncertainties involved in the Litigation, and have
determined that it is in their respective best interests to resolve the
differences between them by compromise and final settlement of the Litigation,
without any admission of liability on the part of any of the Parties and/or
their affiliates;
NOW,
THEREFORE, in consideration of the mutual covenants, promises, warranties,
representations and undertakings set forth below and other good and valuable
consideration, including current, reasonably equivalent value and consideration,
the receipt and sufficiency of which hereby is acknowledged, the Parties agree
as follows:
1. RECITALS
INCORPORATED. The foregoing recitals are incorporated herein
by reference as if fully set forth below.
2. PAYMENT. The
Caprius Parties shall cause to be delivered to the Sassoon Parties by wire
transfer the amount of One Hundred Eighty Thousand Dollars ($180,000.00) (the
“Settlement Amount”), so that such funds are received within ninety (90) days of
the Effective Date of this Settlement Agreement (the “Final
Receipt”). The wired transfer is to be made to the following
account:
UBS
AG
ABA
000000000
UBS
Financial Services
A/C
#101-WA-258641-000
F/C Xxxxx
Xxxxxxx
A/C
#Y108978
If for
any reason the Settlement Amount is ever subject to an action under local, state
or federal bankruptcy laws, including but not limited to an action for a
preferential payment for a fraudulent conveyance and/or is subsequently
disgorged, avoided, retracted, returned or otherwise rescinded, this Settlement
Agreement shall become null and void and the Parties shall be reinstated to
their full rights, including the right of the Sassoon Parties to reinstate the
Litigation with all applicable statutes of limitations having been deemed tolled
as of the Date the Litigation commenced.
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3. DISMISSAL
OF LAWSUIT. Upon the Effective Date, the Caprius Parties shall
deliver to counsel for the Sassoon Parties an executed copy of the Stipulation
of Discontinuance in the form attached hereto as Exhibit A (the
“Stipulation”). Within two (2) business days of the Final Receipt,
counsel for the Sassoon Parties shall deliver an executed Stipulation of
Discontinuance to counsel for the Caprius Parties or a copy thereof with
evidence of due filing with the Court.
4. MUTUAL
RELEASES.
A.) Effective
upon Final Receipt, and in consideration of the Settlement Amount, the below
release and other terms and conditions of this Settlement Agreement, the Sassoon
Parties on their own behalf and on behalf of their present and former partners,
principals, officers, directors, employees, agents, receivers, trustees,
attorneys, predecessors, successors, assigns, successors in interest, parents,
subsidiaries, affiliates, divisions (collectively “Sassoon Releasors”), do
hereby acknowledge full and complete satisfaction of, and hereby do, finally and
forever, release, acquit, and discharge the Caprius Parites, their subsidiaries,
affiliates, and parents, their respective past and present heirs, successors,
predecessors and assigns, and each of their respective current and former
officers, directors, shareholders, owners, partners, managers, members,
employees, servants, agents and attorneys and their respective insurers
(collectively “Caprius Releasees”), of and from any and all demands,
obligations, actions, causes of action, counterclaims, rights, damages, losses,
costs, contribution claims, claims for restitution, suits, claims for sums of
money, contracts, controversies, agreements, judgments, expenses, compensation
and demands of any nature whatsoever, rights, liabilities, actions and causes of
action of any nature, whether at law or in equity, known or unknown, whether
suspected or unsuspected, including, without limitation, any individual claims
and any claims in a representative capacity they have, had or may have at any
time based on, arising out of or relating to, including the Sassoon Agreement,
the Litigation and the Settlement Amount.
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B.) Effective
upon Final Receipt, and in consideration of the above release and other terms
and conditions of this Settlement Agreement, the Caprius Parties on their own
behalf and on behalf of their present an former partners, principals, officers,
directors, employees, agents, receivers, trustees, attorneys, predecessors,
successors, assigns, successors in interest, parents, subsidiaries, affiliates,
divisions (collectively “Caprius Releasors”), do hereby acknowledge full and
complete satisfaction of, and hereby do, finally and forever, release, acquit,
and discharge each and all of the Sassoon Parties, their subsidiaries,
affiliates and parents, their respective past and present heirs, successors,
predecessors and assigns, and each of their respective current and former
officers, directors, shareholders, owners, partners, managers, members,
employees, servants, agents and attorneys and their respective insurers
(collectively “Sassoon Releasees”), of and from any and all demands,
obligations, actions, causes of action, counterclaims, rights, damages, losses,
costs, contribution claims, claims for restitution, suits, claims for sums of
money, contracts, controversies, agreements, judgments, expenses, compensation
and demands of any nature whatsoever, rights, liabilities, actions and causes of
action of any nature, whether at law or in equity, known or unknown, whether
suspected or unsuspected, including without limitation, any individual claims
and any claims in an representative capacity they have, had or may have at any
time based on, arising out of or relating to the Sassoon Agreement, the
Litigation and the Settlement Amount.
C.) Nothing
herein shall be deemed to constitute a release by any Party of any obligation
arising under this Settlement Agreement.
5. ASSIGNMENT
OF RIGHTS. Within two (2) business days after Final Receipt,
the Sassoon Parties hereby agree to surrender, deliver and transfer to Caprius,
Inc. all stock certificates or other evidence of ownership of any stock issued
by MCM Environmental Technologies, Inc. and MCM Environmental Technologies, Ltd.
in the possession of the Sassoon Parties or any of their respective
agents. The Sassoon Parties, for the good and valuable consideration
described above, assign, sell and transfer their rights, title, ownership and
interest, and duty of performance in any stock of MCM Environmental
Technologies, Inc. and/or MCM Environmental Technologies, Ltd. that is held by
the Sassoon Parties or to which is has any rights. The Sassoon
Parties hereby relinquish all rights to any stock of MCM Environmental
Technologies, Inc. and MCM Environmental Technologies, Ltd. (together “MCM”)
wherever and by whomever held. It is agreed that this Settlement
Agreement is evidence of the consent of the Sassoon Parties to the transfer to
Caprius, Inc. of any and all rights to ownership of stock of
MCM. It is further agreed by the Sassoon Parties that, if
request is made by any person or entity holding MCM stock, for evidence of the
relinquishment of all ownership rights of the Sassoon Parties, that the Sassoon
Parties will provide, as needed, cooperation necessary, such
assistance not to be unreasonably withheld.
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6. NO
ADMISSIONS. The Parties understand and agree that this is a
compromise and settlement of disputed claims. Each of the Parties
specifically denies any liability or wrongdoing whatsoever on its
part. Neither this Settlement Agreement or any of its provisions,
terms or conditions (i) shall be construed to be an admission of liability under
the Sassoon Agreement or the Litigation, or an admission of the validity or
enforceability of any matters that are released pursuant to this Settlement
Agreement, nor (ii) may be offered or received in evidence in any other action,
proceeding, claim, or settlement negotiation as evidence of an admission of
liability or wrongdoing, or for any other purpose; provided, however, that this
Settlement Agreement, proof of its execution, and payment of the consideration
under its terms shall be admissible, or may be offered or received in evidence
(i) to prove settlement and release of the claims set forth herein, and/or (ii)
to enforce this Settlement Agreement.
7. ATTORNEYS’
FEES AND COSTS. Each of the Parties shall bear its own
attorneys’ fees and costs arising from the claims that were asserted or that
could have been asserted in the Litigation and arising from the negotiation and
preparation of this Settlement Agreement.
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8. REPRESENTATIONS
AND WARRANTIES. Each of the Sassoon
Parties and the Caprius Parties represents and warrants to each other as
follows:
a. that
no other persons or entities have any interest in the claims, demands,
obligations, or causes of action referred to in or released by this Agreement,
and the Sassoon Parties represent and warrant that they have the sole and
exclusive right to receive the Settlement Amount;
b. that
they have not sold, assigned, transferred, pledged, conveyed or otherwise
disposed of any of the claims, demands, obligations, or causes of action which
constitute or are based, related to or arise out of the Sassoon Agreement, the
Litigation or the Settlement Amount;
c. that
the person or persons who execute this Settlement Agreement on behalf of each of
the Parties represents and warrants that he or she has been duly authorized to
do so;
d. That
all corporate action necessary for the execution and performance of the
transactions contemplated by this Agreement has been duly taken, and that no
consents are required from any other person or entity for the execution and
performance of the transactions contemplated by this Settlement
Agreement;
e. that
the execution, delivery and performance of this Settlement Agreement in
compliance with the provisions hereof, does not (i.) violate or conflict with
any of the terms or conditions of any Party’s governing
documents; (ii.) conflict with or result in a breach of any terms,
conditions or provisions of, or constitute (with notice or lapse of time or
both) a default (or give rise to any right of termination, cancellation or
acceleration) under or results in the creation of any lien or encumbrance upon
any asset of any Party or any contract to which it is a party, or (iii.) violate
any law.
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9. FINAL
ACCORD AND SATISFACTION. This Settlement Agreement and the
Releases contained herein are intended to be, except to the extent expressly
state therein, final and binding upon the Parties and are intended as a full and
final accord and satisfaction among the Parties, and each Party expressly relies
on the finality of this Settlement Agreement as a substantial factor inducing
such Party’s execution of this Settlement Agreement.
10. COUNTERPARTS. This
Settlement Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original and all of which shall constitute one and the
same agreement. The exchange of facsimile copies shall suffice for
purposes of establishing the Parties’ execution of this Settlement Agreement,
provided that original signatures shall subsequently be exchanged.
11. ENTIRE
AGREEMENT. This Settlement Agreement and the exhibit
referenced herein contain the entire agreement between the Sassoon Parties and
the Caprius Parties with regard to the matters set forth in it and may only be
amended, modified or waived by a written instrument executed by each of the
Parties. The mutual obligations and undertakings of the Parties
expressly set forth in this Settlement Agreement are the sole consideration for
this Settlement Agreement, and no representations, promises, or inducements of
any nature whatsoever have been made by any of the Parties other than those
expressly appearing in this Settlement Agreement. Each of the Parties
and counsel for each of the Parties has reviewed and revised this Settlement
Agreement, and accordingly, the rule of construction that any ambiguities are to
be resolved against the drafting party shall not be employed in the
interpretation of this Settlement Agreement.
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12. WAIVER. A
waiver of any term or condition of this Settlement Agreement will not be deemed
to be, and may not be construed as, a waiver of any other term or condition
hereof.
13. GOVERNING
LAW. This Settlement Agreement shall be governed by, and
construed and enforced in accordance with the laws of the State of New York,
without regard to principles of conflicts of laws.
14. ENFORCEMENT. Any
dispute arising out of or relating to this Settlement Agreement shall be
adjudicated exclusively in the Court of the State and located in the County of
New York and each of the Parties hereby irrevocably consents to the jurisdiction
and venue of such court for the purpose of any such dispute(s), and waives any
claim or defense that any such court lacks jurisdiction or that such forum is
not convenient or proper.
15. SUCCESSORS
AND ASSIGNS: This Settlement Agreement shall be binding upon
and shall inure to the benefit of the Parties hereto and their respective
successors and assigns.
16. HEADINGS. Paragraph
headings contained in this Settlement Agreement are for reference purposes only
and shall not in any way affect the meaning or interpretation of this Settlement
Agreement.
17. NOTICES. All
notices or other communications under this Settlement Agreement shall be in
writing and deemed to be duly delivered if delivered in person, by overnight
mail, or by confirmed fax or electronic delivery, followed by hard copy
delivery.
If to the
Caprius Parties, such notice or communication shall be delivered
to:
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Caprius,
Inc. C/O Xx. Xxxxxx Xxxxxx |
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00
Xxxxxx Xxxxxx, Xxxxx 000
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Xxxxxxx,
Xxx Xxxxxx 00000
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Telephone:
(000) 000-0000
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Telecopy:
(000) 000-0000
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Email: xxxxxxx@xxxxxxx.xxx
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Xx.
Xxxxxx Xxxxx
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00
Xxxxxxx Xxxxxx
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Xxxxxxxxx,
Xxx Xxxxxx 00000
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Tel
(000) 000-0000 or (000) 000-0000
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Email:
xxxxxx@xxxxxxx.xxx
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With a copy to:
Xxxxxxx X. Xxxxxx, III,
Esq.
X’Xxxxx & Xxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx
Xxxx 00000-0000
Telephone: (000)
000-0000
Telecopy: (000)
000-0000
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Email: xxxxxxx@xxxxxx-xxxxx.xxx
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If
to Sassoon, such notice or communication shall be delivered
to:
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Xx.
Xxxxx Xxxxxxx
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000
0xx
Xxxxxx, Xxx 00X
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Xxx
Xxxx, XX 00000
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Telephone: (000)
000-0000
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Email:
xxxxxxxxxxxx@xxx.xxx
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With
a copy to:
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Xxxx
X. Xxxxxxxx, Esq.
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Xxxxx
& Xxxxxxx, LLP
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000
Xxxxx Xxxxxx
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Xxx
Xxxx, XX 00000
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Telephone:
(000) 000-0000
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Telecopy:
(000) 000-0000
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Email:
xxxxxxxxxx@xxxxx.xxx
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IN WITNESS WHEREOF, the
Parties have executed this Settlement Agreement as of June 22,
2009.
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XXXXX
XXXXXXX
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XXXXX
XXXXXXX INTERNATIONAL, INC.
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/s/Xxxxx Xxxxxxx
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/s/Xxxxx Xxxxxxx
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By:
Xxxxx Xxxxxxx, President and CEO.
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MCM
ENVIRONMENTAL TECHNOLOGIES, INC.
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CAPRIUS,
INC.
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/s/Xxxxxx Xxxxx
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/s/Xxxxxx Xxxxxx
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| By: |
Xxxxxx
Xxxxx
Chairman
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By: Xxxxxx
Xxxxxx
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XXXXXX
XXXXX
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/s/Xxxxxx Xxxxx
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