SETTLEMENT AGREEMENT AND MUTUAL RELEASE
SETTLEMENT
AGREEMENT AND MUTUAL RELEASE
This
Settlement Agreement and Mutual Release (“Settlement
Agreement”)
is
made as of this 14th
day of
August, 2008 by and between Memry Corporation (“Memry”),
a
Delaware corporation, on the one hand, and Kentucky Oil Technology, N.V.
(“Kentucky
Oil”),
a
Netherlands corporation, Memory Metal Holland, B.V. (“MMH”),
a
Netherlands corporation, Xxxxx Besselink (“Besselink”),
an
individual, United
Stenting, Inc. (“USI”),
a
Nevis corporation, and Xx.
Xxxxxxxx xxx Xxxxxxxxxx (“van
Moorleghem”),
an
individual.
Kentucky Oil, MMH, and
Besselink
are
sometimes referred to collectively as the “Kentucky
Oil Parties.”
Whereas,
MMH and Memry entered a Secrecy Agreement, dated October 28, 1998 (the
“Secrecy
Agreement”);
Whereas,
Memry and Memry Europe N.V., a former indirect subsidiary of Memry, entered
into
a Collaboration Agreement with USI,
dated
June 9, 1999 (the “Collaboration
Agreement”);
Whereas,
the Kentucky Oil Parties and
USI
warrant
and represent herein that Kentucky Oil is the sole successor in interest
to USI
for all of its rights, title and interest in the Collaboration Agreement
not
retained by USI;
Whereas,
Memry and Schlumberger Technology Corporation (“STC”),
a
Texas corporation, entered into a Development Agreement, dated as of January
1,
2001 (the “Development
Agreement”);
Whereas,
Memry, Kentucky Oil, MMH, Besselink, and STC are or were parties to an action
currently pending in the United States District Court for the Northern District
of California, styled as Memry
Corporation v. Kentucky Oil Technology, N.V., et al.,
Case
No. CV 04-03843 RMW (HRL) (the “Lawsuit”);
Whereas,
SAES Getters (“Getters”),
an
Italian corporation, and Memry announced a merger agreement on June 24,
2008;
Whereas,
STC and the Kentucky Oil Parties have settled their disputes by way of a
separate Settlement Agreement and Mutual Release, an executed copy of which
has
been provided to counsel for Memry under the terms of the protective order
in
the Lawsuit.
NOW
THEREFORE, in consideration of the mutual covenants set forth in this Settlement
Agreement, the parties agree as follows:
A.
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Consideration. In
consideration for this Settlement Agreement and the agreements
and mutual
releases contained herein, Memry is,
simultaneously with the execution and delivery hereof, paying Kentucky
Oil the total sum of $3,500,000.00. The payment is being made
in
cash by wire transfer to counsel for Kentucky Oil simultaneously
with
the execution and delivery of signed counterparts of this Settlement
Agreement. Counsel for Kentucky Oil will deliver the payment to
Kentucky
Oil upon the filing of a Stipulation for Dismissal with prejudice
further
described in Section G of this Settlement Agreement. Kentucky Oil
will
accept any tax liability that might be associated with this payment.
Memry
makes no representations or warranties regarding any tax liability,
if
any, that might be associated with this payment or any of the terms
of
this Settlement Agreement. The parties agree that neither Memry
nor any of
the other Memry-Related Parties (as hereinafter defined) has any
responsibility for any tax liability which may arise from this
Settlement
Agreement.
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a.
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Effective
upon the execution and delivery hereof (referred to herein as the
“Effective
Time”),
Memry hereby assigns its remaining rights under the Development
Agreement
to Kentucky Oil. Kentucky Oil agrees and acknowledges that, by
doing so,
Memry in no way is assigning or transferring any Background IP
Rights,
Unrelated IP Rights or Development Program IP Rights (all as defined
in
the Development Agreement) or any other intellectual property rights
that
Memry did not obtain pursuant to the Development
Agreement.
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b.
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Effective
upon the Effective Time, Memry assigns to Kentucky Oil its remaining
rights under the two License Agreements (the “License
Agreements”)
entered into between Memry and STC in connection with the Development
Agreement and in the respective forms of Exhibits B and B-1
thereto.
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c.
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Such
assignments are without representation and warranty. Kentucky Oil
agrees
and acknowledges that, pursuant to a separate Settlement Agreement
and
Release being entered into substantially simultaneously herewith
with STC
(the “STC
Settlement Agreement”),
all known and unknown claims existing against Memry on the date
hereof
under and pursuant to the Development Agreement and the License
Agreements
are being released, and that STC is consenting to the assignment
by Memry
to Kentucky Oil of Memry’s remaining rights under the Development
Agreement and the License Agreements. Memry shall have no past
or future
liability for any failure of STC or any other party to make any
payments
under the Development Agreement and/or the License
Agreements.
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2
d.
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Memry
hereby acknowledges the existence of and the exclusive ownership
by
Kentucky Oil or its assignee of: (1) the published PCT Application
No. WO
98/32412; (2) United States Patent Nos. 6,488,702, 6,772,836, 6,799,637,
7,185,709 and 7,398,831; and (3) the foreign patents related to
the
foregoing PCT Application listed on Attachment IV. Memry agrees
not to
infringe upon, or claim ownership of, the inventions covered by
the valid
claims of these patents, and any valid claims of any patents that
subsequently issue to Kentucky Oil directly related to the application
described in clause (1) above. Notwithstanding anything in this
subsection
to the contrary, however, nothing contained herein shall prevent
Memry (i)
from making, using, offering for sale, selling or claiming ownership
of
any technology that is not covered by the valid claims of the aforesaid
patents and application and/or (ii) challenging the validity of
any and/or
all of the claims of the above-referenced patents and/or application
in
any proceeding.
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a.
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The
Secrecy Agreement, dated October 28, 1998, is terminated and all
rights
and obligations therein are extinguished and released.
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b.
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The
Collaboration Agreement, dated June 9, 1999, is terminated and
all rights
and obligations therein are extinguished and released. The parties
agree
and acknowledge that AMT (as defined below) has agreed to this
in the
Mutual Release and Agreement (as defined
below).
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x.
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Kentucky
Oil alleged a Fifth Counterclaim for joinder of Besselink as co-inventor
of certain United States patents, and on May 2, 2008 filed a motion
[Docket 1165] seeking dismissal of that Counterclaim without prejudice
as
to United States Patent Nos. 6,772,836 (the “‘836
Patent”),
6,799,637 (the “‘637
Patent”),
and 7,185,709 (the “‘709
Patent”)
and with prejudice as to the seven other patents identified in
that
Counterclaim.
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b.
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On
July 16, 2008, the United States District Court for the Northern
District
of California filed an Order [Docket 1187] in which it, inter
alia,
dismissed Kentucky Oil’s Fifth Counterclaim as against both Memry and STC,
without prejudice as to the ‘836, ‘637, and ‘709 Patents and with
prejudice as to the seven remaining patents identified in that
Counterclaim, provided that Kentucky Oil, within five Court days
of the
entry of that Order, provided Memry a written covenant not to file
a
lawsuit against Memry under 35 U.S.C. § 256 for correction of inventorship
of the ‘836, ‘637, and ‘709 Patents, in the form attached as Exhibit A to
the proposed Order;
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c.
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On
July 16, 2008, Kentucky Oil provided Memry with a written covenant
not to
file a lawsuit against Memry under 35 U.S.C. § 256 for correction of
inventorship of the ‘836, ‘637, and ‘709
Patents;
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3
d.
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Kentucky
Oil, MMH, and Besselink hereby covenant not to xxx Memry under
35 U.S.C. §
256 for correction of inventorship of the ‘836, ‘637, and ‘709 Patents,
and United States Patent No. 7,398,831, as well as any
related patents that could have been brought in the
Lawsuit.
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e.
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This
covenant not to xxx is binding on any officers, partners, agents,
employees, former employees, shareholders, owners, successors and
assigns
of Kentucky Oil, MMH, and Besselink. This covenant not to xxx by
way of
illustration is binding on
USI,
van Moorleghem and Xxxxxx Xxxxxx.
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f.
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This
covenant not to xxx shall apply to any officers, partners, agents,
employees, former employees, shareholders, owners, successors and
assigns
of Memry acting for, by, or through Memry. This covenant not to
xxx shall
also apply to any direct and/or indirect subsidiaries of Memry
and any
affiliated companies of Memry.
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g.
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This
covenant is in addition to, and not in substitution of, the previously
granted covenant not to xxx annexed hereto as Attachment
II.
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E.
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No
Obligation to Maintain.
Memry has no obligation to USI
or
any of the Kentucky Oil
Parties to prosecute or maintain any intellectual
property.
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F.
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Transfers
As Is.
The assignments of Memry’s right to certain royalties under the
Development Agreement with STC made pursuant to this Settlement
Agreement
are made “as is” and without any representations or warranties whatsoever,
except as expressly set forth
herein.
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G.
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Dismissal
of the Lawsuit.
Concurrently with the execution hereof, the parties hereto shall
execute a
Stipulation of Dismissal pursuant to Rule 41(a)(1)(A)(ii) of the
Federal
Rules of Civil Procedure in the form of Attachment 1 hereto, dismissing
the Lawsuit with prejudice with each side to bear its own costs
and
attorneys’ fees and with all rights of appeal waived. Promptly upon the
execution and delivery of signed counterparts of this Settlement
Agreement, Kentucky Oil shall file the Stipulation of Dismissal
with the
Court in which the Lawsuit is pending.
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a.
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Release
of Memry.
The Kentucky Oil Parties and USI each
release Memry, and its officers, directors, shareholders, divisions,
business units, members, managers, parents, subsidiaries, affiliates,
predecessors, successors, representatives, agents, servants, employees,
attorneys, accountants, investors, and insurers (collectively,
the
“Memry-Related
Parties”),
of and from any and all known and unknown actions, causes of action,
claims, demands, damages, costs, losses, expenses, liabilities,
attorneys’
fees, and debts whatsoever, under statutory law or regulation,
at common
law or in equity of any jurisdiction, including, without limitation,
those
relating to the Lawsuit, that any of the Kentucky Oil
Parties or USI has, did have, or may have against any of the Memry-Related
Parties from the beginning of time to the date of this Settlement
Agreement (the “KOT
Released Claims”).
The
parties agree and acknowledge that this release extinguishes all
claims of
the Kentucky Oil Parties and USI against the Memry-Related Parties,
whether such claims are asserted by the Kentucky Oil Parties or
USI or by
their officers, directors, shareholders, divisions, business units,
members, managers, parents, subsidiaries, affiliates, predecessors,
successors, representatives, agents, servants, employees, attorneys,
accountants, investors, and
insurers.
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4
b.
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Release
of Kentucky Oil Parties and USI.
Memry releases each of the Kentucky Oil
Parties, and USI, and their officers, directors, shareholders,
divisions,
business units, members, managers, parents, subsidiaries, affiliates,
predecessors, successors, representatives, agents, servants, employees,
attorneys, accountants, investors, and insurers (such persons and
entities, including the Kentucky Oil Parties being referred to
herein
collectively as the “Kentucky Oil-Related Parties”)
of
and from any and all known and unknown actions, causes of action,
claims,
demands, damages, costs, losses, expenses, liabilities, attorneys’ fees,
and debts whatsoever, under statutory law or regulation, at common
law or
in equity of any jurisdiction, including, without limitation, those
relating to the Lawsuit, that Memry has, did have, or may have
against any
of the Kentucky Oil-Related Parties from the beginning of time
to the date
of this Settlement Agreement (the “Memry
Released Claims”).
The parties agree and acknowledge that this release extinguishes
all
claims of Memry against the Kentucky Oil-Related-Parties, whether
such
claims are asserted by Memry or by its officers, directors, shareholders,
divisions, business units, members, managers, parents, subsidiaries,
affiliates, predecessors, successors, representatives, agents,
servants,
employees, attorneys, accountants, investors, and insurers.
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c.
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Unknown
Claims.
As further consideration and inducement for this compromise settlement,
the parties each understand and agree that the releases contained
in this
Section H apply to all unknown and unanticipated claims or demands
of any
type whatsoever, and the parties expressly waive the benefits of
California Civil Code § 1542, which
states:
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A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW
OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH
IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT
WITH
THE DEBTOR.
5
The
Kentucky Oil Parties and
USI
each abandon, release, waive, and relinquish all rights and benefits that
any of
them has or may have against any of the Memry-Related Parties under California
Civil Code § 1542 with respect to the KOT Released Claims. Memry abandons,
releases, waives, and relinquishes all rights and benefits that it has or
may
have against any of the Kentucky Oil-Related Parties under California Civil
Code
§ 1542 with respect to the Memry Released Claims. The parties each acknowledge
that they may discover facts in addition to, or different from, those that
they
now believe to be true, including but not limited to the nature or extent
of
their damages, but that it is nonetheless their intention to fully, finally,
completely, and forever settle and release each, every, and all claims released
in this Section H. Therefore, the releases given in this Section H shall
remain
in effect according to their express terms notwithstanding the discovery
or
existence of any such additional or different facts.
d.
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Warranty
of No Transfer.
Each of the parties represents and warrants that it is the sole
owner of
the claims it is releasing in this Section H, that no other person
has any
interest in any of those claims, and that it has not sold, assigned,
or
otherwise transferred any interest in those claims to any third
party.
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e.
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No
Release by AMT.
The releases set forth in this Section H do not release any claims
of any
sort by or against AMT, N.V. (“AMT”), except for those claims that
originated as claims of the Kentucky Oil Parties and/or USI that
may have
been transferred or are subsequently transferred to AMT. Nothing
in this
Settlement Agreement in any way limits or nullifies any prior releases
granted by AMT and/or van Moorleghem.
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x.
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xxx
Xxxxxxxxxx Release.
The parties to this Settlement Agreement agree and acknowledge
the
separate Settlement Agreement and Mutual Release, in the form of
Attachment III (the “Mutual Release and Agreement”), being executed and
delivered by van Moorleghem, AMT and Memry in connection
herewith.
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a.
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Memry
Representations and Warranties.
Memry hereby represents and warrants to the Kentucky Oil Parties
and USI
as follows:
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i.
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Memry
is a legal entity duly organized, validly existing and in good
standing
under the laws of its jurisdiction of organization and has all
requisite
corporate or similar power and authority to own, lease and operate
its
properties and assets and to carry on its business as presently
conducted.
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6
ii.
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Memry
has requisite corporate power and authority to enter into this
Settlement
Agreement and to consummate the transactions contemplated hereby.
The
execution and delivery of this Settlement Agreement and the consummation
of the transactions contemplated hereby have been duly and validly
authorized on behalf of Memry and no other corporate proceedings
on the
part of Memry are necessary to authorize the consummation of the
transactions contemplated hereby. This Settlement Agreement has
been duly
and validly executed and delivered by Memry and, assuming this
Settlement
Agreement constitutes the valid and binding agreement of each of
the
Kentucky Oil Parties, constitutes the valid and binding agreement
of
Memry, enforceable against Memry in accordance with its terms,
except that
(y) such enforcement may be subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws, now or hereafter
in
effect, relating to creditors’ rights generally and (z) equitable remedies
of specific performance and injunctive and other forms of equitable
relief
may be subject to equitable defenses and to the discretion of the
court
before which any proceeding therefor may be brought (the “Bankruptcy
and Equity Exception”).
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iii.
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No
authorization, consent or approval of, or filing with, any United
States
or foreign governmental or regulatory agency, commission, court,
body,
entity or authority (each, a “Governmental
Entity”)
is necessary, under applicable law, for the consummation by Memry
of the
transactions contemplated by this Settlement Agreement, except
for filings
required to be made under U.S. securities laws after the Effective
Time.
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iv.
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The
execution and delivery by Memry of this Settlement Agreement does
not, and
the consummation of the transactions contemplated hereby and compliance
by
Memry with the provisions of this Settlement Agreement will not,
conflict
with or violate any applicable
laws.
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b.
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The
Kentucky Oil Parties,
USI and van Moorleghem,
jointly and severally, hereby represent to Memry as
follows:
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i.
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USI
and each of the Kentucky Oil Parties that is not a natural person
is a
legal entity duly organized, validly existing and in good standing
under
the laws of its jurisdiction of organization and has all requisite
corporate or similar power and authority to own, lease and operate
its
properties and assets and to carry on its business as presently
conducted.
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7
ii.
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USI
and each of the Kentucky Oil Parties that is not a natural person
has
requisite power and authority to enter into this Settlement Agreement
and
to consummate the transactions contemplated hereby. The execution
and
delivery of this Settlement Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized
on
behalf of USI and each of the Kentucky Oil Parties that is not
a natural
person and no other corporate or other proceedings on the part
of any such
Kentucky Oil Party are necessary to authorize the consummation
of the
transactions contemplated hereby. This Settlement Agreement has
been duly
and validly executed and delivered by each Kentucky Oil Party and,
assuming this Settlement Agreement constitutes the valid and binding
agreement of Memry, constitutes the valid and binding agreement
of USI and
each Kentucky Oil Party, enforceable against USI and each Kentucky
Oil
Party in accordance with its terms, except for the Bankruptcy and
Equity
Exception.
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iii.
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No
authorization, consent or approval of, or filing with, any Governmental
Entity is necessary, under applicable law, for the consummation
by USI and
each of the Kentucky Oil Parties of the transactions contemplated
by this
Settlement Agreement.
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iv.
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The
execution and delivery by USI, van Moorleghem and each of the Kentucky
Oil
Parties of this Settlement Agreement does not, and the consummation
of the
transactions contemplated hereby and compliance by USI, van Moorleghem
and
each of the Kentucky Oil Parties with the provisions of this Settlement
Agreement will not, conflict with or violate any applicable
laws.
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v.
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Kentucky
Oil is the sole successor in interest to MMH for all of its rights,
title
and interest in the Secrecy Agreement and to USI for all of its
rights,
title and interest in the Collaboration
Agreement.
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vi.
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van
Moorleghem is not the principal executive officer of AMT, nor does
he own
or control a majority of the voting interests
therein.
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a.
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Confidentiality.
The parties agree to keep this Settlement Agreement and its terms
strictly
confidential unless: (a) asserting a claim or defense arising out
of this
Settlement Agreement or related to the Lawsuit in any suit or proceeding;
(b) ordered to do so by a court of competent jurisdiction; (c)
served with
a subpoena or other request for discovery, provided that the party
served
first gives prompt notice to the other parties so the other parties
may
have an opportunity to contest the subpoena or discovery request;
or (d)
any of the substance of this Settlement Agreement is necessary
to be
disclosed to an agency or regulatory body, or to an insurer, financial
advisor, investor, lawyer, or accountant for any party or affiliate.
However, nothing in this Settlement Agreement prohibits a party
from
stating that the claims in the Lawsuit between the parties to this
Settlement Agreement have been settled and that the terms of the
settlement are confidential. Notwithstanding the foregoing, however,
(i)
Memry may disclose this Settlement Agreement to Getters and its
counsel,
(ii) either
party may
announce this Settlement Agreement in a press release and a Form
8-K, and
may file a copy hereof as an exhibit to said Form 8-K; and (iii)
any
party
can freely disclose any information
relating to this Settlement Agreement that has already been
publicly disclosed by any other
party.
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b.
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No
Admission.
This Agreement is a compromise of disputed claims. It is not and
shall not
be interpreted as or deemed to be an admission of liability by
any party
to this Settlement Agreement.
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c.
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No
Continuing Relationship.
The Kentucky Oil Parties each acknowledge that none of them has
any
present relationship whatsoever with Memry other than as set forth
in this
Settlement Agreement, although AMT currently has a contractual
relationship with Memry. The Kentucky Oil Parties will not make
any
representation to any third party that is inconsistent with this
acknowledgment. If any of the Kentucky Oil Parties make any representation
to third parties that is contrary to this paragraph, Memry shall
be
entitled to injunctive relief and specific performance of this
paragraph.
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i.
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Kentucky
Oil will defend, indemnify, and hold harmless Memry and all of
the
Memry-Related Parties and all successors, assigns, end-users, and
customers of each, for: (1) the breach of any covenant, warranty
or
representation made by any Kentucky Oil Party, USI or van Moorleghem
in
this Settlement Agreement or any agreement entered into in connection
herewith; or (2) any claims against them arising from or relating
to
actual or alleged breach by the Kentucky Oil-Related Parties of
the
Development or License Agreements following the assignment of rights
as
contemplated under this Agreement. Pursuant to this indemnification,
the
indemnitees are entitled to use counsel of their
choice.
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ii.
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Memry
will defend, indemnify, and hold harmless Kentucky Oil and all
of the
Kentucky Oil-Related Parties and all successors, assigns, end-users,
and
customers of each, for the breach of any covenant, warranty or
representation made by Memry in the Settlement Agreement. Pursuant
to this
indemnification, the indemnitees are entitled to use counsel of
their
choice.
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e.
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Authority.
Each party warrants and represents to and in favor of each of the
other
parties that the person executing this Settlement Agreement on
its behalf
has the full power and authority to bind it to each and every provision
of
the agreement.
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f.
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Notices.
All notices, requests, and demands made under this Settlement Agreement:
(a) shall be in writing and made to the parties and their counsel
at the
address indicated below, or to such other address as a party may
designate
by prior written notice to all of the others in accordance with
this
provision; and (b) shall be deemed to have been given or made (i)
if
delivered in person, immediately upon delivery, (ii) if by email
or
facsimile transmission, immediately upon sending and upon confirmation
of
receipt, provided that on that day or the following day a copy
is also
sent by first class mail, (iii) if by nationally recognized overnight
courier service with instructions to deliver the next business
day, one
business day after; and (iv) if by certified mail, return receipt
requested, five (5) days after
mailing.
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If
to Memry:
Memry
Corporation
Attn.
Xxxxxx Xxxxxxx
0
Xxxxxxxxx Xxxxxxxxx
Xxxxxx,
XX 00000
with
a
copy to:
Xxxxx
X.
Xxxxx, Esq.
Finn,
Dixon & Xxxxxxx, LLP
000
Xxxxx
Xxxxxx, 00xx
Xxxxx
Xxxxxxxx,
Xxxxxxxxxxx 00000-0000;
and
Xxxxxxx
X. Xxxx, Esq.
Xxxxxx
Xxxxxxx LLP
00
Xxxxxx
Xxxxxx
Xxxxxxxx,
XX 00000
If
to the
Kentucky Oil Parties:
Xxxxx
Besselink
Kentucky
Oil Technology, N.V.
Gronausetraat
1220
7534
AT
Enschede
The
Netherlands
Facsimile
No.: 011 31 53461 1730
Email:
xxxxxxxx@xxxx.xx
10
and:
Xxxxxxxx
xxx Xxxxxxxxxx
Xx.
Xxxxxxxx xxx Xxxxxxxxxx
Industrieweg
1113
X0000
Xxxx
Xxxxxxx
Facsimile
No: 011 32 13553514
Email:
xxxxxxxx_xxxxxxxxxxxxx@xxxxx.xxx
with
a
copy to:
Xxxxxxx
X. Xxxxxxx, Esq.
Xxxxxxx
X. Xxxxxx, Esq.
Xxxx,
Forward, Xxxxxxxx & Scripps LLP
000
X.
Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxxxxx, Xxxxxxxxxx 00000
Facsimile
No.: (000) 000-0000
Email:
xxxxxxxx@xxxx.xxx / xxxxxxx@xxxx.xxx
K.
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Interpretation.
This Settlement Agreement shall be construed without regard to
the party
or parties responsible for the preparation of the same and shall
be deemed
to have been prepared jointly by the parties hereto. If any ambiguity
or
uncertainty exists herein, such ambiguity or uncertainty shall
not be
interpreted against any party hereto, but rather, shall be interpreted
according to the application of other rules of contract interpretation.
The parties acknowledge that this Settlement Agreement is in the
English
language and that the English language will govern its
interpretation.
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L.
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Governing
Law.
This Settlement Agreement shall be construed in accordance with
California
law, without regard to its internal choice-of-law
rules.
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M.
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Enforcement.
If any action is brought for breach of or to enforce this Settlement
Agreement, it shall be brought in the United States District Court
for the
Northern District of California,
unless that court has no jurisdiction over the action, in which
case it
shall be brought in the Superior Court of the State of California
for the
Counties of San Francisco or Santa Xxxxx.
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N.
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Attorneys’
Fees.
In any action for breach of or to enforce this Settlement Agreement,
the
prevailing party will be entitled to reasonable attorneys’ fees, expenses,
and costs.
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O.
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Counterparts.
This Settlement Agreement may be signed in counterparts, and a
copy of the
fully signed Settlement Agreement may be used in evidence as if
it were
the original.
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P.
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Integration.
This Settlement Agreement is the entire agreement between the parties
with
respect to its subject matter and supersedes all prior or contemporaneous
oral or written negotiations or agreements with regard to the matters
set
forth in it. The parties are not entering into this Settlement
Agreement
on the basis of any promise, statement, or representation, express
or
implied, that is not expressly set forth in it.
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11
Q.
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Independent
Counsel.
Each party acknowledges that it has been represented by independent
counsel of its own choice throughout all negotiations pertaining
to its
execution of this Settlement Agreement. Each party further acknowledges
that it has received and relied upon advice from its independent
counsel
with respect to: (a) the meaning and effect of each of the terms
and
conditions of this Settlement Agreement including, but not limited
to, the
releases and the waiver of rights under California Civil Code § 1542; and
(b) the advisability of entering into this Settlement
Agreement.
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R.
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Independent
Investigation by Parties.
Each party acknowledges that it has fully investigated the subject
matter
of this Settlement Agreement and that it is entering into this
Settlement
Agreement voluntarily, knowingly, and of its own free
will.
|
S.
|
Successors;
Assignment.
This Settlement Agreement shall inure to the benefit of and shall
be
binding upon the heirs, executors, administrators, assigns, and
successors
in interest of each of the parties entering into it. Any party’s rights
hereunder may be assigned to any party succeeding to all or any
substantial part of its business. Each party agrees not to use
an
assignment to evade or avoid its responsibilities
hereunder.
|
T.
|
Modification
of Agreement.
No supplement, modification, or amendment to this Settlement Agreement
shall be binding unless executed in writing by all of the parties
to
it.
|
U.
|
Severability.
If any of the provisions of this Settlement Agreement become invalid,
illegal or unenforceable in any respect, the validity, legality
and
enforceability of the remaining provisions hereof shall not in
any way be
impacted.
|
12
DATED:
August 14, 2008
|
KENTUCKY
OIL TECHNOLOGY, N.V.
|
|
/s/
Xxxxx Besselink
|
||
By:
Xxxxx Besselink
|
||
Title:
Managing Director
|
||
DATED:
August 14, 2008
|
MEMORY
METAL HOLLAND, B.V.
|
|
/s/
Xxxxx Besselink
|
||
By:
Xxxxx Besselink
|
||
Title:
Managing Director
|
||
DATED:
August 14, 2008
|
XXXXX
BESSELINK
|
|
/s/
Xxxxx Besselink
|
||
Xxxxx
Besselink
|
||
DATED:
August 14, 2008
|
XXXXXXXX
XXX XXXXXXXXXX
|
|
/s/
Xx. Xxxxxxxx xxx Xxxxxxxxxx
|
||
Xx.
Xxxxxxxx xxx Xxxxxxxxxx
|
||
DATED:
August 14, 2008
|
UNITED
STENTING, INC.
|
|
/s/
Xxxxx Xxxxxxxxxxxxx
|
||
By:
Xxxxx Xxxxxxxxxxxxx
|
||
Title:
Managing Director
|
13
DATED:
August 14, 2008
|
MEMRY
CORPORATION
|
|
/s/
Xxxxxx X. Xxxxxxx
|
||
By:
Xxxxxx X. Xxxxxxx
|
||
Title:
Chief Executive Officer
|
14
DATED:
August 13, 2008
|
XXXX, FORWARD, XXXXXXXX & SCRIPPS LLP | |
By:
|
/s/
Xxxxxxx X. Xxxxxxx
|
|
Xxxxxxx
X. Xxxxxxx
|
||
Attorneys
for Defendants Xxxxx Besselink and
|
||
Memory
Metal Holland, B.V. and Defendant
|
||
and
Counterclaimant Kentucky Oil
|
||
Technology,
N.V.
|
||
DATED:
August 14, 2008
|
XXXXXX XXXXXXX LLP | |
By:
|
/s/
Xxxxxxx X. Xxxx
|
|
Xxxxxxx
X. Xxxx
|
||
Attorneys
for Plaintiff and Counterdefendant
|
||
Memry
Corporation
|
15
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