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EXHIBIT 10.13
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
THIS SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS ("this Agreement") is
made and entered into as of this 24th day of February 1997, by and between
Cimetrix, Inc. ("Cimetrix") and Xxxxxx X. Xxxxxxxxx ("Xxxxxxxxx").
NOW THEREFORE, in consideration of the mutual covenants, obligations,
representations, warranties and releases contained herein, the parties mutually
agree as follows:
BACKGROUND
1. Cimetrix is a Nevada corporation with its principal place of
business located in Provo, Utah.
2. Xxxxxxxxx has been a shareholder of Cimetrix since 1990. In 1994,
Xxxxxxxxx served as an officer and director of Cimetrix.
3. In February 1996, Cimetrix commenced an action against Xxxxxxxxx and
others in the Fourth Judicial District Court for the State of Utah, styled
Cimetrix, Inc. v. Scolas, et al, Civ. No. 960400085CV ("the litigation").
4. In the litigation, Cimetrix asserted venous claims against Xxxxxxxxx
including claims related to certain shares of Cimetrix common stock held by
Xxxxxxxxx, claims related to a stock option agreement between Xxxxxxxxx and
Cimetrix and claims arising from alleged threats of litigation against Cimetrix
made by Xxxxxxxxx.
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5. In the litigation, Xxxxxxxxx asserted various counterclaims against
Cimetrix, including claims of breach of contract, fraud and conversion.
PURPOSE OF THIS AGREEMENT
6. The purpose of this Agreement is to settle and compromise all
aspects of the litigation between Xxxxxxxxx and Cimetrix and to release all
claims asserted or which might have been asserted in the litigation between
Xxxxxxxxx and Cimetrix, and all claims which either Cimetrix or Xxxxxxxxx may
have as of the date of this Agreement against each other.
DISMISSAL OF ACTION.
7. Cimetrix agrees to dismiss with prejudice its complaint against
Xxxxxxxxx in its entirety and Xxxxxxxxx agrees to dismiss with prejudice his
counterclaim against Cimetrix in its entirety.
8. The parties agree that they will take all steps necessary to have
the litigation between them dismissed with prejudice, including the execution of
a stipulation of dismissal with prejudice in a form acceptable to counsel for
both parties.
COVENANTS
9. Cimetrix represents and covenants that its Board of Directors has
approved this Agreement, and that the representative of Cimetrix signing this
Agreement is duly authorized to execute it on Cimetrix's behalf.
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10. In 1995, Cimetrix and Xxxxxxxxx entered into an Option Agreement
("the Option"). Cimetrix and Xxxxxxxxx agree and acknowledge that Xxxxxxxxx'x
attempted exercise of his rights under the Option in February 1996 was
ineffective, invalid and void ab initio. Contemporaneously with the execution of
this Agreement, Cimetrix shall deliver to Xxxxxxxxx checks totalling $268,387 to
reimburse Xxxxxxxxx for the $250,000 option price, $3,887 Social Security tax,
and $14,500 Medicaid tax Xxxxxxxxx paid to Cimetrix in February 1996 in
connection with Xxxxxxxxx'x ineffective attempt to exercise the Option.
11. Cimetrix shall issue a corrected W-2C and a corrected Form 1099 to
Xxxxxxxxx and the United States Internal Revenue Service ("IRS") by February 28,
1997 reflecting that Xxxxxxxxx received no wages or other income in connection
with the ineffective attempt to exercise the Option. Cimetrix shall confirm that
Xxxxxxxxx'x attempted exercise of the Option was ineffective if the IRS or other
taxing authority questions or challenges the corrected W-2C or the corrected
Form 1099 Cimetrix agrees to take reasonable steps to inform Xxxxxxxxx if the
IRS or other taxing authority contacts Cimetrix with respect to Xxxxxxxxx;
provided, however, that Cimetrix's failure to do so shall not be deemed a
material breach of this Agreement.
12. Cimetrix acknowledges that Xxxxxxxxx'x sale of 7,000 shares of
Cimetrix common stock in February 1996 was valid and that Xxxxxxxxx may retain
the proceeds of that sale
13. Xxxxxxxxx now has in his possession certificates representing
38,000 shares of Cimetrix common stock, the validity of which Cimetrix
challenged in the litigation. Cimetrix and Xxxxxxxxx acknowledge and agree that
12,000 of the 38,000 shares were invalidly issued
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and void ab initio. Cimetrix and Xxxxxxxxx agree that Xxxxxxxxx may retain
26,000 shares of the Cimetrix common stock currently in his possession, which
shares shall be unrestricted. Xxxxxxxxx shall tender his existing certificates
for 38,000 shares of Cimetrix, and Cimetrix, at the same time, shall deliver to
Xxxxxxxxx a new, unrestricted certificate for 26,000 shares. In no event shall
this exchange of certificates be delayed by either party beyond March 7, 1997.
Cimetrix shall give all consents necessary to allow Xxxxxxxxx to sell or
transfer these shares as he sees fit.
14. With respect to the 12,000 shares of Cimetrix common stock which
the parties agree was invalidly issued and void ab initio, in the event the IRS
or other taxing authority challenges the cancellation and/or attempts to
classify it as a disposition triggering any taxable gain, Cimetrix agrees to
inform the IRS and other taxing authorities that such shares were void ab initio
and invalidly issued.
RELEASES
15. In consideration for the various covenants and promises set forth
above, Cimetrix for itself and for its officers, directors, stockholders,
employees and agents, hereby releases, waives, acquits and discharges Xxxxxxxxx
and Xxxxxxxxx'x heirs, successors, agents, attorneys and assigns from any and
all claims, actions, demands, losses, causes of action, damages, attorneys fees,
costs, judgments, liens, indebtedness and liabilities whatsoever, known or
unknown, suspected or unsuspected, past or present, absolute, contingent or
otherwise arising
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from or in any way related to the relationship between the parties or the
transactions and occurrences giving rise to the litigation.
16. In consideration for the various covenants and promises set forth
above, Xxxxxxxxx for himself and for his heirs, successors and assigns, hereby
releases, waives, acquits and discharges Cimetrix and all of its directors,
officers, shareholders, supervisors, employees, agents, attorneys and
representatives from any and all claims, actions, demands, losses, causes of
action, damages, attorneys fees, costs, judgments, liens, indebtedness and
liabilities whatsoever, known or unknown, suspected or unsuspected, past or
present, absolute, contingent or otherwise arising from or in any way related to
the relationship between the parties or the transactions and occurrences giving
rise to the litigation.
ENFORCEMENT OF OBLIGATIONS CREATED BY THIS AGREEMENT
17. In any action brought to enforce the obligations imposed by this
Agreement, the prevailing party shall be entitled to recover actual attorneys
fees and expenses from the nonprevailing party
MISCELLANEOUS PROVISIONS
18. This Agreement contains the entire understanding of the parties
with respect to the matters addressed herein and no representations or
provisions have been made between the parties except as contained herein. The
provisions of this Agreement are integrated and they
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shall not be modified, revoked, waived, altered or amended except by an
instrument in writing signed by both parties.
19. This Agreement is to be governed by and construed in accordance
with Utah law.
20. This Agreement may be executed by the parties in counterparts
IN WITNESS WHEREOF, the undersigned have executed this Settlement
Agreement and Mutual Release of Claims on the date first above written.
/s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
Cimetrix, Inc.
By /s/ Xxxx X. Xxxxxxxxx
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Its President
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MUTUAL GENERAL RELEASE
This Mutual General Release ("Agreement") is entered into by and
between Xxxxxx X. Xxxxxxxxx ("Xxxxxxxxx") and Xxxx X. Xxxxxxxxx ("Bilzerian")
RECITALS
Xxxxxxxxx and Bilzerian deem it to be in their best interests and to
their mutual advantage to forever settle, adjust and compromise all
controversies and disputes of any kind existing between them as of the date of
this Agreement.
MUTUAL RELEASE
Xxxxxxxxx and Bilzerian hereby forever release and discharge each
other, and all of their respective agents, attorneys, heirs, administrators,
predecessors, successor and assigns, from any and all claims, demands and causes
of action of any kind or nature that Xxxxxxxxx or Bilzerian ever had or claimed
to have had or now have or claim to have against each other.
The parties warrant and represent that they have not heretofore
assigned or transferred, or purported to assign or transfer, to any person or
entity any claims, demands or action released by them herein, and that they
agree to indemnify, defend and save each other harmless from all claims,
expenses and liabilities arising from any prior assignment or transfer of any
such claims, demands or causes of action.
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By entering into this Agreement, the parties do not admit or concede
any liability, and expressly deny engaging in any illegal, unlawful or improper
conduct.
This Agreement may be executed by the parties in counterpart.
DATED: February 24, 1997 /s/ Xxxxxx X. Xxxxxxxxx
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XXXXXX X. XXXXXXXXX
DATED: February 24, 1997 /s/ Xxxx X. Xxxxxxxxx
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XXXX X. XXXXXXXXX
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