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EXHIBIT 10.27
SETTLEMENT AGREEMENT
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This is a Settlement Agreement ("Agreement"), dated effective December
1, 2000, and between CSA Private Limited, a Singapore corporation ("CSA") and
MAI Systems Corporation, a Delaware corporation ("MAI").
RECITALS
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a. On December 28, 1999, CSA filed a complaint against MAI in the United States
District Court for the Central District of California, Southern Division, Case
No. SACV99-1592 DOC ("the Litigation"), which sought injunctive relief and
damages for MAI's alleged breach of the Agreement of Settlement and Release (the
"Settlement Agreement"), dated May 13, 1999, between the parties.
b. On or about Xxxxx 0, 0000, XXX filed its answer to CSA's complaint in the
Litigation, denying its material allegations and raising various material
affirmative defenses. On November 24, 2000, CSA and MAI reached an agreement in
principle to settle the Litigation according to the provisions of a Settlement
Term Sheet, a copy of which is attached as Exhibit "A". The parties intend this
Settlement Agreement to fully express and implement the intentions of the
parties to settle the case in accordance with the Settlement Term Sheet.
c. CSA and MAI now compromise and settle their disputes and end the Litigation.
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TERMS OF AGREEMENT
1. Definitions.
a. Unless the parties agree in writing to a later date, "Closing Date"
means the earlier of the following: (i) the date on which all conditions
specified in section 7 of this Agreement either occur or are waived in writing
by the required party; and (ii) February 16, 2001.
b. "Effective Date" means December 1, 2000.
2. Issuance of Shares. On or before the Closing Date, MAI will deliver
to counsel of record for CSA in the Litigation certificates issued to CSA for a
total of 2,433,333 shares of MAI common stock, including the 517,319 shares
previously issued to CSA. CSA Private Limited was formerly known as "Computer
Systems Advisers (Private) Limited." Its current corporate name reflects only a
name change. MAI will reissue all stock previously issued to "Computer Systems
Advisers (Private) Limited" or "CSA Pte. Ltd." to "CSA Private Limited", and all
MAI stock to be issued and registered to CSA under this Agreement will be issued
and registered to "CSA Private Limited".
3. Registration of All Shares. Within five (5) business days after the
Closing Date, MAI will file all necessary documents with the United States
Securities and Exchange Commission ("SEC") to register all of CSA's shares of
MAI common stock for resale. After filing with the SEC, MAI will promptly notify
CSA of the filing by providing it evidence of the filing of the Registration
Statement. MAI will use its best efforts to cause such Registration Statement to
become effective on or before March 31, 2001. If SEC registration of all of
CSA's shares is not effective by March 31, 2001, CSA may, at its option and in
its sole and absolute discretion, terminate this agreement by giving written
notice of termination to MAI after March 31, 2001 and before April 30, 2001. If
CSA gives MAI written notice of termination in accordance with this section,
this Agreement
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will be deemed null and void in its entirety, the dismissal of the Litigation
shall be set aside, and both CSA and MAI will be returned to their same
respective positions before any agreement to settle the Litigation, without
prejudice to their claims and defenses or the prosecution of the Litigation. If
the Registration Statement is declared effective by the SEC, MAI will use its
best efforts to cause it to remain continuously effective for a period of three
years or until all of the 2,433,333 shares of MAI common stock have been resold
by CSA.
4. Subordinated Secured Indebtedness.
a. MAI will execute a Subordinated Note due 2003 in favor of CSA in the
form attached as Exhibit "B" in the principal sum of Two Million Eight Hundred
Thousand Dollars ($2,800,000.00). MAI will execute a Security Agreement in the
form attached as Exhibit "C" providing CSA a fourth secured position among MAI's
secured creditors. MAI and CSA will execute a Subordination Agreement and Riders
"A", "B", and "C" to Subordination Agreement in the forms attached as Exhibits
"D", "E", "F", and "G" subordinating CSA's claims under the Secured Promissory
Note and Security Agreement to the debt of Coast Business Credit, The Value
Realization Fund, L.P., Canyon Value Realization Fund (Cayman), Ltd., GRS
Partners II, CPI Securities L.P., and GetornicsWang Co. LLC (the "Senior
Lenders").
b. On or before the Closing Date, CSA and MAI will execute and deliver
to the counsel of record in the Litigation for the other party the following
documents duly executed, to the extent the documents require, by each of them
and, in the case of MAI, by or on behalf of all the Senior Lenders: a
Subordinated Note due 2003 in the form attached as Exhibit "B"; a Security
Agreement in the form attached as Exhibit "C"; a Subordination Agreement and
Riders "A", "B", and "C" to Subordination Agreement in the forms attached as
Exhibits "D", "E", "F", and "G"; and all other documents necessary
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to perfect CSA's security interest under the Security Agreement and to
carry out the subordination provided in the Subordination Agreement.
5. Mutual General Releases.
a. Except as expressly stated in this Settlement Agreement, CSA, for
itself, and on behalf of its officers, directors, agents, attorneys, employees,
stockholders, successors, and assigns, hereby forever and fully releases and
discharges MAI, and its officers, directors, agents, attorneys, employees,
stockholders, subsidiaries, affiliates, successors, and assigns, from all causes
of actions, debts, rights, and claims, of any kind or nature, whether at law or
in equity, whether known or unknown, whether suspected or unsuspected, which CSA
now has or has ever had, arising on or before the Effective Date of this
Agreement.
b. Except as expressly stated in this Settlement Agreement, MAI for
itself, and on behalf of its officers, directors, agents, attorneys, employees,
stockholders, successors, and assigns, hereby forever and fully releases and
discharges CSA and its officers, directors, agents, attorneys, employees,
stockholders, subsidiaries, affiliates, successors, and assigns, from all causes
of actions, debts, rights, and claims, of any kind or nature, whether at law or
in equity, whether known or unknown, whether suspected or unsuspected, which MAI
now has or has ever had, arising on or before the Effective Date of this
Agreement.
c. Waiver of Unknown Claims. In making the mutual general releases
stated in sections 5a and 5b of this Agreement, CSA and MAI intend to release
all causes of actions, debts, rights, and claims that are unknown or
unanticipated as of the Effective Date, including those that were unknown or
unanticipated, whether in fact of occurrence or in nature or extent, as of the
Effective Date. The parties hereby waive all protections against the release of
unknown claims, including any rights under California Civil Code Section 1542 or
similar laws in other jurisdictions. California Civil Code Section 1542 reads as
follows:
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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 also knowingly and voluntarily waive any protection that may exist
under any comparable or similar statutes or principles of law of any and all
states of the United States or of the United States.
6. Stipulation for Dismissal. On or before the Closing Date, counsel of
record for CSA in the Litigation will execute the Stipulation for Dismissal with
prejudice in the form attached as Exhibit "H" and deliver it to counsel of
record for MAI in the Litigation. CSA authorizes counsel of record for MAI in
the Litigation to submit the Stipulation for Dismissal to the Court for entry
and filing upon the Closing Date. The Stipulation shall provide that the Federal
Court shall retain jurisdiction over the Litigation and this Agreement,
including the power to set aside the dismissal in accordance with the terms of
this Agreement.
7. Conditions.
a. The following will be conditions to the effectiveness of this
Agreement that must occur or be waived in writing by CSA on or before the
Closing Date: delivery to counsel of record for CSA in the Litigation of an
original of this Agreement executed on behalf of MAI, and originals of Exhibits
"B", "C", "D, " "E", "F", and "G" executed by or on behalf of MAI and/or the
Senior Lenders, as required.
b. The following will be conditions to the effectiveness of this
Agreement that must occur or be waived in writing by MAI on or before the
Closing Date:
i. Delivery to counsel of record for MAI in the Litigation of an
original of this Agreement executed on behalf of CSA, and executed originals of
Exhibits "C", "D",
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"E", "F", "G", and "H" executed by or on behalf of CSA, to the extent required;
and
ii. Written consent to this transaction, including the form and
content of Exhibits "C", "D", "E", "F", and "G" and execution of the originals
of those exhibits as required, by the Senior Lenders.
8. Representations and Warranties. In connection with this Agreement,
each party hereto represents and warrants to each other party hereto that (i) it
has the capacity and full power and authority to execute, deliver and perform
this Agreement and that the individual executing the Agreement is authorized to
do so on its behalf; (ii) this Agreement is a binding agreement, enforceable in
all respects in accordance with its terms; (iii) it or he has not sold,
assigned, transferred or otherwise disposed of any of the claims, demands or
rights that are the subject of this Agreement; and (iv) it or he has not
commenced any legal action against any other party hereto except the Litigation.
9. General Provisions.
a. This Agreement is the result of a compromise of disputed claims
between CSA and MAI, and will never at any time for any purpose be considered as
an admission of liability or responsibility by any party and it or its existence
may not be offered as evidence except in a proceeding arising out of this
Agreement.
b. The advice of legal counsel has been obtained by all parties prior
to the execution of this Agreement. Each of parties represents that it has
executed this Agreement voluntarily and with full advice of independent counsel
of its choosing.
c. This Agreement binds the successors and assigns of the respective
parties, and any parent, subsidiary, or affiliated entity of such parties.
d. This Agreement constitutes the entire agreement between CSA and MAI,
and the final, complete, and exclusive expression of the terms and conditions of
the only agreement between them as of the Closing Date. This Agreement
supersedes any and all
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other agreements, understandings, negotiations or discussions, either oral or in
writing, expressed or implied, concerning the subject matter of this Agreement.
Without limitation, all rights and obligations of the parties with respect to
each other under the Put/Call and Registration Rights Agreement, dated as of
August 9, 1996, between MAI and Hotel Information Systems, Inc., and the
Settlement Agreement are terminated and superseded by this Agreement. This
agreement may only be modified by a writing duly executed by CSA and MAI.
e. The parties agree to take all further steps as may be reasonable and
necessary to carry out the terms of this Agreement, including but not limited to
preparing, executing, and delivering other documents.
f. This Agreement will be governed by and construed in accordance with
the laws of the State of California without regard to conflict of laws
provisions.
g. This Agreement may be executed in two or more counterparts, each of
which will be deemed an original, but all of which will constitute one and the
same written agreement. Signatures obtained and exchanged by fax will be binding
to the same extent as original signatures.
h. CSA and MAI will each bear its own attorneys' fees, costs, and
expenses incurred through the Closing Date, and neither will make any claim
against the other for reimbursement. In the event of any future dispute arising
under this Agreement, the prevailing party will be entitled to recover
reasonable attorney's fees, costs, and expenses incurred after the Closing Date
from the other, including all attorney's fees, costs, and expenses associated
with efforts to negotiate or mediate a resolution without litigation or
arbitration.
i. Any dispute between the parties arising out of this Agreement,
including but not limited to the interpretation, administration, or enforcement
of any of its terms, will be
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submitted to binding arbitration at San Francisco, California in accordance with
the Rules then in effect of the Judicial Arbitration and Mediation Service
("JAMS"). The decision of the arbitrator will be final and binding and may be
confirmed in any Federal Court having jurisdiction or the Superior Court of
California in and for the County of San Francisco.
j. All parties, through their counsel, participated in the drafting of
this Agreement, and any rule that agreements are to be construed or interpreted
adverse to the drafter will not apply.
k. Any notice, request, demand, instruction or other communication given
to one party by another under this Agreement, will be in writing, addressed and
delivered as follows:
With copy to:
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To CSA: Sunny Tan Xxxxxx X. Xxxx
CSA Private Limited Levy, Ram, Xxxxx & Xxxxx LLP
By fax: 000-00-000-0000 000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
(000) 000-0000
(000) 000-0000 (fax)
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With copy to:
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To MAI: Xxxxx Xxxxxxxx Xxxxxx Xxxxxx
MAI Systems Corporation Xxxxxxxx & Xxxxxxxx
0000 Xxxxxxxx Xxxx 0000 Xxxxxxx Xxxx Xxxx
Xxxxxx, XX 00000 Xxx Xxxxxxx, XX 00000
(000) 000-0000 (000) 000-0000
(000) 000-0000 (fax) (000) 000-0000 (fax)
The addressees for the purposes of this paragraph may be changed by the
affected party by giving written notice in the manner provided herein for giving
notice.
CSA PRIVATE LIMITED
DATED: January __, 2001 by
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Sunny X.X. Xxx
Its Director
MAI SYSTEMS CORPORATION
DATED: January __, 2001 by
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W. Xxxxx Xxxxxxxx
Its Chief Executive Officer
DATED: January __, 2001 by
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Xxxxxxx X. Xxxxxxx
Its Chairman of the Board
