GENERAL RELEASE AGREEMENT
This
GENERAL
RELEASE AGREEMENT
(this
“Agreement”),
dated
as of this 31st day of May 2007, is entered into by and among
WaferGen Bio-systems, Inc., formerly known as La Burbuja Café, Inc., a Nevada
corporation (“Seller”), Xxxxx Xxxxxxx Xxxxxxxxx De La O (“Buyer”), La Burbuja
Leaseco, Inc., a Nevada corporation (“Leaseco”), and WaferGen, Inc., a Delaware
corporation (“WaferGen”). In consideration of the mutual benefits to be derived
from this Agreement, the covenants and agreements set forth herein, and other
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the execution and delivery hereof, the parties hereto hereby
agree as follows:
1. Split-Off
Agreement.
This
Agreement is executed and delivered by Leaseco pursuant to the requirements
of
Section 7.3 of that certain Split-Off Agreement (the “Split-Off Agreement”) by
and among Seller, Leaseco, Buyer and WaferGen, as a condition to the closing
of
the purchase and sale transaction contemplated thereby (the
“Transaction”).
2. Release
and Waiver by Leaseco.
For
and
in consideration of the covenants and promises contained herein and in the
Split-Off Agreement, the receipt and sufficiency of which are hereby
acknowledged, Leaseco, on behalf of itself and its assigns, representatives
and
agents, if any, hereby covenants not to xxx and fully, finally and forever
completely releases Seller and WaferGen, along with their respective present
and
former officers, directors, stockholders, managers, members, employees,
affiliates, agents, attorneys, representatives, heirs, administrators,
executors, successors and assigns (collectively, the “Seller Released Parties”),
of and from any and all claims, actions, obligations, suits, charges,
liabilities, demands, losses, costs, expenses (including court costs, litigation
expenses and reasonable attorneys’ fees), obligations, causes of actions and/or
damages, of whatever kind or character, whether now existing, known or unknown,
suspected or unsuspected, fixed or contingent, which Leaseco has or might claim
to have against the Seller Released Parties for any and all injuries, harm,
damages (actual and punitive), costs, losses, expenses, attorneys’ fees and/or
liability or other detriment, if any, whenever incurred or suffered by Leaseco
arising from, relating to, or in any way connected with, any fact, event,
transaction, action or omission that occurred or failed to occur at or prior
to
the closing of the Transaction.
3. Release
and Waiver by Buyer.
For
and
in consideration of the covenants and promises contained herein and in the
Split-Off Agreement, the receipt and sufficiency of which are hereby
acknowledged, Buyer hereby covenants not to xxx and fully, finally and forever
completely releases the Seller Released Parties of and from any and all claims,
actions, obligations, suits, charges, liabilities, demands, losses, costs,
expenses (including court costs, litigation expenses and reasonable attorneys’
fees), obligations, causes of actions and/or damages, of whatever kind or
character, whether now existing, known or unknown, suspected or unsuspected,
fixed or contingent, which Buyer has or might claim to have against the Seller
Released Parties for any and all injuries, harm, damages (actual and punitive),
costs, losses, expenses, attorneys’ fees and/or liability or other detriment, if
any, whenever incurred or suffered by Buyer arising from, relating to, or in
any
way connected with, any fact, event, transaction, action or omission that
occurred or failed to occur at or prior to the closing of the
Transaction.
1
4. Additional
Covenants and Agreements.
(a) Each
of
Leaseco and Buyer, on the one hand, and Seller and WaferGen, on the other hand,
waives and releases the other from any claims that this Agreement was procured
by fraud, mistake, duress, coercion and/or undue influence.
(b) Each
of
the parties hereto acknowledges and agrees that the releases set forth herein
do
not include any claims the other party hereto may have against such party for
such party’s failure to comply with or breach of any provision in this Agreement
or the Split-Off Agreement.
(c) Notwithstanding
anything contained herein to the contrary, this Agreement shall not release
or
waive, or in any manner affect or void, any party’s rights and obligations under
the following:
(i) the
Split-Off Agreement; and
(ii) the
Agreement of Merger and Plan of Reorganization among Seller, WaferGen and
WaferGen Acquisition Corp., a Delaware corporation and wholly owned subsidiary
of Seller.
(d) Each
of
Buyer and Leaseco represent that it has not commenced any litigation against
any
of the Seller Released Parties.
(e) It
is the
intention of all parties that this Agreement be construed broadly as a total
and
unconditional release and covenant by each of the Buyer and Leaseco never to
assert any claims, actions, obligations, suits, charges, liabilities, demands,
losses, costs, expenses and/or damages against Seller Released
Parties.
5. Modification.
This
Agreement cannot be modified orally and can only be modified through a written
document signed by all parties hereto.
6. Severability.
If
any
provision contained in this Agreement is determined to be void, illegal or
unenforceable, in whole or in part, then the other provisions contained herein
shall remain in full force and effect as if the provision that was determined
to
be void, illegal or unenforceable had not been contained herein.
7. Expenses.
The
parties hereto agree that each party shall pay its respective costs, including
attorneys’ fees, if any, associated with this Agreement.
8. Entire
Agreement.
This
Agreement constitutes the entire understanding and agreement of Seller,
WaferGen, Buyer and Leaseco, and supersedes prior understandings and agreements,
if any, among or between Seller, WaferGen, Buyer and Leaseco, with respect
to
the subject matter of this Agreement, other than as specifically referenced
herein. This Agreement does not, however, operate to supersede or extinguish
any
confidentiality, non-solicitation, non-disclosure or non-competition obligations
owed by Leaseco to Seller under any prior agreement.
2
9.
Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Nevada, without giving effect to principles of conflicts or choice
of
laws thereof.
3
IN
WITNESS WHEREOF,
the
undersigned have executed this Agreement as of the day and year first above
written.
| WAFERGEN BIO-SYSTEMS, INC. | ||
| |
|
|
| By: | /s/ Xxxxxxx Xxxxxx | |
|
Name: Xxxxxxx Xxxxxx |
||
| Title: President | ||
| LA BURBUJA LEASECO, INC. | ||
| |
|
|
| By: | /s/ Xxxxxxx Xxxxxx | |
|
Name: Xxxxxxx Xxxxxx |
||
| Title President | ||
| BUYER | ||
| /s/ Xxxxx Xxxxxxx Xxxxxxxxx De La O | ||
|
Xxxxx Xxxxxxx Xxxxxxxxx De La
O
|
||
| WAFERGEN, INC. | ||
| |
|
|
| By: | /s/ Xxxxxx Xxxxxx | |
|
Name: Xxxxxx Xxxxxx |
||
| Title: Chief Executive Officer | ||
4
