EXHIBIT 10.36
COMPLETE SETTLEMENT AGREEMENT AND
MUTUAL RELEASE OF ALL CLAIMS
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THIS COMPLETE SETTLEMENT AGREEMENT AND FULL MUTUAL RELEASE OF ALL CLAIMS
(hereinafter referred to as "Agreement") is entered into this 14th day of
February, 2003 by and between Columbus Group/cFour Partners, a California
partnership, ("Columbus"), Xxxxxx X. Xxxxxxx, an individual, Xxxxx Xxxxxxxx, an
individual, HiEnergy Microdevices, Inc., a Delaware corporation, and HiEnergy
Technologies, Inc., a Delaware corporation (hereinafter referred collectively as
"the Parties" and individually as "Party"), on behalf of themselves, their
employees, officers, directors, heirs, estates, predecessors in interest,
successors in interest, former employees, successors and assigns.
WHEREAS, Columbus and HiEnergy Microdevices, Inc. entered into that certain
agreement dated as of January 8, 2002 (the "Contract") for services related to
the referral and placement of Chief Executive Officer candidates with HiEnergy
Microdevices, Inc. and HiEnergy Technologies, Inc., including the placement of
Messrs. Xxxxx Xxxxx and Xxxxxx X. Xxxxxx (the "Placement Services"), and now
that the Contract has been terminated and the Placement Services have been
completed, the Parties wish to resolve any amounts owed;
WHEREAS, as partial consideration for Placement Services performed,
HiEnergy Microdevices, Inc. and Xxxxx Xxxxxxxx entered into that certain
Promissory Note and Security Agreement Secured Only by Stock (the "Xxxxxxxx
Promissory Note") regarding the issuance to Xxxxx Xxxxxxxx of Common Stock of
HiEnergy Technologies, Inc. as successor in interest to SLW Enterprises, Inc.;
WHEREAS, as partial consideration for Placement Services performed,
HiEnergy and Xxxxxx Xxxxxxx entered into that certain Promissory Note and
Security Agreement Secured Only by Stock (the "Bellano Promissory Note")
regarding the issuance to Xxxxxx Xxxxxxx of Common Stock of HiEnergy
Technologies, Inc. as successor in interest to SLW Enterprises, Inc.;
WHEREAS, the Parties desire to perfect a final resolution of this matter
and hereby execute this Complete Settlement Agreement and Mutual Release of All
Claims;
NOW THEREFORE, in consideration of the promises, covenants and releases
herein contained, the Parties agree as follows:
1. The above recitals are incorporated herein as if set forth at length
herein.
2. As compensation for the Placement Services, and subject to approval by
the Board of Directors of HiEnergy Technologies, Inc., HiEnergy Technologies,
Inc. will pay to Columbus the sum of Thirty Seven thousand Six Hundred dollars
(US$37,600), as follows:
$ 12,600.00 due on or before: 1/2/03
$ 5,000.00 due on or before: 2/6/03
$ 5,000.00 due on or before: 3/7/03
$ 5,000.00 due on or before: 4/4/03
$ 5,000.00 due on or before: 5/9/03
$ 5,000.00 due on or before: 6/6/03
Payment due as agreed upon between the Parties shall be made to Columbus. In
the event HiEnergy Technologies, Inc. fails to make any of the foregoing
payments when due, Columbus shall provide HiEnergy Technologies, Inc. with
notice of such failure and HiEnergy Technologies, Inc. shall have fifteen (15)
days from the date HiEnergy Technologies, Inc. receives the notice to cure such
default.
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2. As compensation for the Placement Services, and subject to approval by
the Board of Directors of HiEnergy Technologies, Inc., HiEnergy Technologies,
Inc. shall issue Bellano 40,000 warrants to purchase HiEnergy Technologies, Inc.
Common Stock at a purchase price of $1.50 per share and a term of three years
pursuant to the Warrant Agreement attached hereto as Exhibit A.
3. As compensation for the Placement Services, and subject to approval by
the Board of Directors of HiEnergy Technologies, Inc., HiEnergy Technologies,
Inc. shall issue Xxxxxxxx 40,000 warrants to purchase HiEnergy Technologies,
Inc. Common Stock at a purchase price of $1.50 per share and a term of three
years pursuant to the Warrant Agreement attached hereto as Exhibit B.
4. The Xxxxxxxx Promissory Note is hereby terminated and canceled and
neither HiEnergy Technologies, Inc. nor HiEnergy Microdevices, Inc. shall have
any liability therefore. Further, any and all Options, Warrants and/or Shares
underlying or resulting from the Xxxxxxxx Promissory Note, including that
certain HiEnergy Microdevices, Inc. Stock Certificate evidencing 296 Shares of
HiEnergy Microdevices, Inc. Class A Common Stock dated April 25, 2002, in the
name of Xxxxxxxx is deemed canceled and void and Xxxxxxxx shall have no rights
of redemption, registration or transfer. The Xxxxxxxx Promissory Note and the
Shares shall be treated for all purposes as if they had never been issued.
5. The Bellano Promissory Note is hereby terminated and canceled and neither
HiEnergy Technologies, Inc. nor HiEnergy Microdevices, Inc. shall have any
liability therefore. Further, any and all Options, Warrants and/or Shares
underlying or resulting from the Bellano Promissory Note, including the that
certain HiEnergy Microdevices, Inc. Stock Certificate evidencing 296 Shares of
HiEnergy Microdevices, Inc. Class A Common Stock dated April 25, 2002, in the
name of Bellano is deemed canceled and void and Bellano shall have no rights of
redemption, registration or transfer. The Bellano Promissory Note and the Shares
shall be treated for all purposes as if they had never been issued.
6. All Parties agree that they shall be responsible for their own attorneys'
fees and court costs incurred in connection with the subject matter of this
Agreement.
7. The Parties hereby release and discharge one another, their agents,
attorneys, officers, directors, heirs, estates, predecessors in interest,
successors in interest, employees, former employees, representatives,
successors, and assigns, of and from any and all claims, demands, sums of money,
actions, rights, causes of action, obligations and liabilities of every kind or
nature whatsoever which they have had, or claim to have had, or now have, or now
claim to have, including any causes of action for malicious prosecution, with
respect to the Contract and/or Placement Services. The Parties further release
and discharge one another, their agents, attorneys, officers, directors, heirs,
estates, predecessors in interest, successors in interest, employees, former
employees, representatives, successors, and assigns, of and from any and all
claims, demands, sums of money, actions, rights, causes of action, obligations
and liabilities of every kind or nature whatsoever which they have had, or claim
to have had, or now have, or now claim to have in connection with the above
entitled matters herein, and any other ancillary claims related to the above
recitals (the "Mutual Release").
8. The Parties hereto, and each of them, expressly acknowledge that they may
hereinafter discover facts different from or in addition to those which they now
have or believe to be true with respect to all or any of the claims, causes of
action, costs, or demands herein released; however, the Parties hereto, and each
of them, agree that the above-referenced Mutual Release shall be and remains
effective in all respects, notwithstanding the discovery of such different or
additional facts.
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9. In executing this Agreement, the Parties hereto, and each of them,
warrant and represent that they do so with full knowledge of any and all rights
which they have and that they do not rely and have not relied upon any
representation made by any other Party with regard to this Mutual Release or the
basis hereof. Each Party hereby assumes the risk of any mistake of fact on its
part in connection with the true facts involved herein and with regard to any
facts which are now unknown to it. In this connection, each Party hereby
acknowledges that it has read Section 1542 of the California Civil Code, that it
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has been advised by counsel with regard to its meaning, and that it understands
the same. Said statue 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 SETTLEMENT WITH THE DEBTOR.
The Parties hereto, and each of them, agree to and hereby waive and relinquish
all rights and benefits afforded under the provisions of Section 1542 stated
above.
10. It is understood and agreed that this is a compromise settlement of
disputed claims and this Mutual Release of All Claims shall not be construed as
an admission of liability by any Party to this Agreement. Each Party agrees not
to disparage the other Parties.
11. This Agreement is to be governed by and construed in accordance with the
laws of the State of California.
12. If any Party brings an action or is required to retain counsel to
enforce any provision of this Agreement or to declare rights hereunder, the
prevailing Party shall be entitled to recover from the other Party any
attorneys' fees, expenses and costs thereof, including those incurred on appeal,
as may be determined by the court, arbitrator or other person having
jurisdiction over the dispute.
13. Each Party warrants and represents that he, she or it has the full right
and authority to enter into this Agreement and make the release and agreements
contained herein, and receive the consideration herein provided. Each Party
agrees to indemnify and hold harmless any other Party from any liability and
expense incurred, including attorneys' fees and costs, and a result of any
breach of this warranty.
14. Each Party agrees, represents and warrants that it has not heretofore or
concurrently assigned or transferred any claims, rights or privileges it has or
may have had with respect to claims released by this Agreement to any other
person or entity, and shall not do so in the future.
15. All warranties and representations contained herein are continuing and
shall survive execution of this Agreement.
16. This Agreement contains the entire agreement between the Parties hereto
with respect to the matters referred to herein. No other agreements, oral or
written, respecting such matters which are not specifically referenced herein
shall be deemed to be in any way existing or bind any of the Parties hereto.
This Agreement can be amended or modified only by written agreement of the
Parties hereto. This Agreement shall bind and inure to the benefit of the
Parties hereto and their respective successors, assigns, legatees, heirs and
personal representatives.
17. Any notice or other communication required or permitted under this
Agreement shall be given in writing and delivered by hand or by registered or
certified mail, postage prepaid and return receipt requested, to the following
Parties (or their successors pursuant to due notice):
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If to HiEnergy Technologies, Inc. and/or
HiEnergy Microdevices, Inc.: HiEnergy Microdevices, Inc.
0000 Xxxxx Xxxxxxx, Xxxx X
Xxxxxx, XX 00000
Attn: Chief Executive Officer
If to Columbus: C4 Partners
000 Xxxxxxxx Xxxx., Xxxxx 0000
Xxxxx Xxxxxx, XX 00000
If to Xxxxxx Xxxxxxx: C4 Partners
000 Xxxxxxxx Xxxx., Xxxxx 0000
Xxxxx Xxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
If to Xxxxx Xxxxxxxx: C4 Partners
000 Xxxxxxxx Xxxx., Xxxxx 0000
Xxxxx Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
Such address may be changed from time to time by any Party by providing written
notice to the other Parties in the manner set forth above.
18. If one or more provisions of this Agreement are held to be invalid or
unenforceable under applicable law, such provision(s) shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if such
provision(s) were excluded and shall be enforceable in accordance with its
terms.
19. The failure of either Party to enforce any provision of this Agreement
shall not be construed as a waiver or limitation of that Party's right to
subsequently enforce and compel strict compliance with every provision of this
Agreement.
20. This agreement may be executed in counterparts, and each such
counterpart shall be deemed to be an original instrument.
21. It is agreed that a copy and/or fax copy of a signed original Agreement
may be used for all purposes in place of this original Agreement.
[The remainder of this page is intentionally left blank.]
IN WITNESS WHEREOF, and in acknowledgment that the Parties hereto have read and
understood each and every provision hereof, the Parties have executed this
Agreement on the date first set forth above.
HIENERGY TECHNOLOGIES, INC., COLUMBUS GROUP/c4 PARTNERS LLC
a Delaware corporation a [California partnership]
/s/ Xxx Xxxxxx /s/ Xxxxxx X. Xxxxxxx
BY:____________________ BY:_______________________
President Director
ITS:___________________ ITS:______________________
2-19-03 2/19/03
DATE___________________ DATE:_____________________
HIENERGY MICRODEVICES, INC. XXXXXX X. XXXXXXX,
a Delaware corporation individually
/s/ X X Xxxxxxx /s/ Xxxxxx Xxxxxxx
BY:____________________ BY:_______________________
Chairman
ITS:___________________
2/20/03 2/19/03
DATE___________________ DATE:_____________________
XXXXX XXXXXXXX,
Individually
/s/ Xxxxx Xxxxxxxx
BY:_____________________
2/15/03
DATE:___________________
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