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EXHIBIT 10.11
SETTLEMENT AGREEMENT
AGREEMENT entered into this 2nd day of June, 1998, by and between
XxXxxxx, Inc., a Delaware corporation ("XxXxxxx"), and Transmedica
International, Inc. (formerly Venisect, Inc.), a Delaware corporation
("Transmedica").
WITNESSETH:
WHEREAS, the parties have entered into an Agreement dated August 1,
1993, relating to certain technology of Transmedica (the "Original Agreement");
WHEREAS, certain disputes and differences have arisen between the
parties; and
WHEREAS, the parties have settled their differences and desire to set
forth their agreements and understandings;
NOW, THEREFORE, in consideration of the premises, the parties agree as
follows:
1. The Original Agreement is superseded and replaced by the Amended
and Restated Agreement dated June 2, 1998 herewith in the form attached hereto
as Exhibit A (the "New Agreement").
2. The parties acknowledge that Transmedica is currently indebted to
XxXxxxx in the amount of $900,000 as a result of transactions under the Original
Agreement.
3. XxXxxxx will extend credit to Transmedica for services performed
and charges incurred under the New Agreement for the account of Transmedica up
to a maximum of $1,100,000. XxXxxxx'x obligation to extend such credit will
terminate one year after the date of this agreement or at such earlier time as
total credits reach $1,100,000.
4. The $900,000 currently owed by Transmedica to XxXxxxx and
additional extensions of credit up to $1,100,000 extended by XxXxxxx to
Transmedica shall be evidenced
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by the Secured Promissory Note executed by Transmedica in the form attached
hereto as Exhibit B and shall be secured by the Security Agreement and Patent
Security Agreement of even date herewith executed by Transmedica in the form of
Exhibits C and D, respectively. Such Security Agreement and Patent Security
Agreement xxxxx XxXxxxx a first lien position provided, however, that such lien
on accounts and inventory may be subject only to a prior lien in favor of Bank
of Little Rock securing indebtedness not exceeding $300,000 in principal amount
plus interest, costs and expenses relating to such principal amount.
5. In order to induce XxXxxxx to enter into this Agreement, without
which XxXxxxx would not enter into this Agreement, Transmedica is
contemporaneously delivering to XxXxxxx a warrant to purchase four percent of
Transmedica's outstanding common stock on a fully diluted basis at a price of
$25.00 per share, which warrant is in the form attached hereto as Exhibit E.
6. In the event Transmedica is in need of services under the New
Agreement which would require an extension of credit above the $1,100,000, the
parties will use reasonable efforts to agree on an amount of additional credit
which XxXxxxx may extend and the terms under which such additional credit would
be extended; provided, however, that the inability of the parties to so agree
shall not invalidate or effect any of their other obligations or rights under
this Settlement Agreement, the New Agreement or any of the other agreements
provided for herein or entered into in connection therewith.
7. XxXxxxx and Transmedica each hereby represent and warrant to the
other as follows:
(a) Each has full power and authority to enter into and carry out the
terms of this agreement and the transactions contemplated hereby.
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(b) The execution, delivery and performance of this agreement and the
documents to be executed and delivered pursuant hereto do not
contravene such party's certificate of incorporation, by-laws, or
any agreement, instrument, decree or judgment by which such party
is bound or to which it is subject.
8. In consideration for entering into this agreement and the
agreements and instruments specifically contemplated hereby, XxXxxxx and
Transmedica do each hereby forever remise, release and forever discharge the
other and their respective officers, directors, agents and employees from any
and all claims, suits and proceedings the other has or may have against the
other except as provided in this agreement or in the agreements and instruments
specifically contemplated hereby. Nothing herein shall affect: (i) the
confidentiality provisions of the Original Agreement with respect to any
information exchanged between the parties prior to the date hereof; (ii) the
quality provisions of the Original Agreement with respect to all devices
produced prior to the date hereof; or (iii) the warranty and indemnity
provisions of the Original Agreement to the extent of any unknown or unasserted
claims or potential claims under those provisions, it being specifically
represented by Transmedica as an inducement to XxXxxxx to enter into this
Agreement that Transmedica has no information or knowledge of any such claims.
9. This agreement shall be governed by and interpreted in accordance
with the laws of the State of Arkansas. Any suit or proceeding to enforce this
agreement or the agreements and instruments contemplated hereby may be brought
and maintained only in state court in St. Louis County, Missouri or Little Rock,
Arkansas, or the United States District Court in St. Louis, Missouri or Little
Rock, Arkansas.
10. This agreement and the agreements and instruments specifically
contemplated hereby constitute the entire agreement and understanding of the
parties with respect to the subject matter hereof and may not be amended without
a subsequent written agreement signed by the parties.
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IN WITNESS WHEREOF, the undersigned caused this agreement to be
executed by their respective officers, thereunto duly authorized, on the date
first above written.
XxXXXXX, INC.
By: /s/ Xxxxx X. XxXxxxx
-----------------------------------
Name: Xxxxx X. XxXxxxx
---------------------------------
Title: CEO and President
--------------------------------
TRANSMEDICA INTERNATIONAL, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
---------------------------------
Title: President
--------------------------------
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EXHIBITS
A - Amended and Restated Agreement
B - Promissory Note
C - Security Agreement
D - Patent Security Agreement
E - Warrant
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PROMISSORY NOTE
$2,000,000 June 2, 1998
FOR VALUE RECEIVED, the undersigned TRANSMEDICA INTERNATIONAL, INC., a
Delaware corporation (the "Maker"), promises to pay to the order of XxXXXXX,
INC., a Delaware corporation (the "Holder"), the principal sum of Two Million
Dollars ($2,000,000) with interest thereon as provided herein. The principal
amount of this Note consists of $900,000.00 for which Debtor is currently
indebted to Maker and such additional amounts up to a maximum of $1,100,000.00
as Holder may advance by extending credits to Maker under the Amended and
Restated Agreement between Maker and Holder dated June 2, 1998 (the "New
Agreement"). Each advance by Holder to Maker shall be noted at the end of this
Note. All amounts payable hereunder shall be payable at 0000 X Xxxxxxx Xxxx, Xx.
Xxxxx, Xxxxxxxx 00000-0000, or to such other payee or at such other place as the
Holder hereof shall designate in writing.
Interest on the unpaid principal balance due hereunder shall accrue,
commencing on the date hereof, at the rate of Seven and One-Half Percent (7.5%)
per annum based on a year consisting of 360 days. After maturity, whether by
acceleration or otherwise, this Note shall bear interest at the rate of Nine and
One-Half Percent (9.5%) per annum.
The principal amount due hereunder and the interest due thereon shall
be payable on June 2, 1999.
Any amounts paid by the Maker of this Note shall be applied first to
any fees and expenses due hereunder, second, in payment of interest then due,
and the remainder to the reduction of the principal balance hereof.
This Note may be prepaid without penalty by the Maker, or any of their
successors and assigns, at any time in whole or part.
This Note is secured by a Security Agreement and a Patent Security
Agreement of even date herewith executed by the undersigned in favor of the
Holder.
In the event of any breach under any of the agreements securing this
Note, the Holder may, at its option, accelerate the scheduled payment of the
Note, all outstanding principal and/or interest shall become immediately due and
payable and Holder shall be under no further obligation to extend credit to
Maker under the New Agreement. Failure at any time or from time to time to
exercise such option shall not constitute a waiver of the right to exercise it
at any later time.
In the event of a default hereunder, the Maker hereof shall pay all
costs and expenses, including reasonable attorneys' fees, incurred in the
collection or enforcement of this Note.
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This Note is hereby deemed made in the State of Arkansas and delivered
in the State of Missouri. It shall be governed by and construed in accordance
with the laws of the State of Arkansas without regard to conflict of laws.
TRANSMEDICA INTERNATIONAL, INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
--------------------------------------
Title: President
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SUBSEQUENT ADVANCES
Date Amount
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SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "Agreement") is made and entered into as
of the 2nd day of June, 1998, by and between TRANSMEDICA INTERNATIONAL, INC.
(formerly Venisect, Inc.), a Delaware corporation with its principal place of
business located at 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx Xxxx, Xxxxxxxx 00000
("Debtor"), and XxXXXXX, INC., a Delaware corporation, with is principal place
of business located at 0000X Xxxxxxx Xxxx, Xx. Xxxxx, Xxxxxxxx 00000-0000
("Secured Party").
WHEREAS, Secured Party has made certain financial accommodations and
has advanced funds to Debtor (collectively, the "Loan"), as evidenced by and
repayable pursuant to the terms of that certain Promissory Note of even date
herewith (as may be amended, modified or renewed, the "Note") and may make
further advances to Debtor; and
WHEREAS, in order to induce Secured Party to extend the Loan and make
further advances under the Note and in order to further secure the repayment of
all sums due pursuant to the Note and this Agreement, Debtor has agreed to
execute this Agreement granting Secured Party a security interest in the
Collateral hereinafter defined;
NOW, THEREFORE, the parties hereby agree as follows:
1. Grant of Security Interest in Collateral. In consideration of the
premises and other valuable consideration, the receipt and sufficiency whereof
is hereby acknowledged, and in order to secure the repayment to Secured Party of
all sums due pursuant to the Note and this Agreement, Debtor hereby grants to
Secured Party a security interest in all of Debtor's right, title and interest
in and to each of the following, wherever located and whether now owned or
hereafter existing or now owned or hereafter acquired or arising (hereinafter
described as the "Collateral"):
(a) All equipment, furniture, fixtures and machinery, accessions,
furnishings, motor vehicles, tools, tooling, spare parts, manufacturing
implements, trailers, other tangible personal property, leasehold
improvements and other improvements to real property;
(b) All inventory, including raw materials, parts and supplies, goods
and merchandise, work in process and finished products;
(c) All accounts, including accounts receivable, contract rights,
notes, drafts, cash, acceptances, instruments, chattel paper, warehouse
receipts, letters of credit and repurchase agreements, and any and all
other rights to the payment of money or other forms of consideration of
any kind; all guaranties, security and liens (including mechanics and
materialmen's liens); goods, merchandise or other personal property,
whether sold, delivered, undelivered, in transit, returned or
repossessed, which may be represented by, or the sale or lease of which
may have given rise to, any such right to payment or other debt,
obligation or liability;
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(d) All general intangibles, including good will, patent
rights, patents, intellectual property, licenses, trademarks, service
marks, trade names and copyrights, and all income including
infringement damages with respect thereto; all Federal, state and local
tax refunds; all customer lists and files, drawings, blueprints,
promotional brochures and mailing lists; all insurance policies
covering any Collateral; all franchises, licenses, leases, life
insurance policies, documents, books and records relating to the
Collateral; and
(e) All cash and non-cash proceeds (including insurance
proceeds), substitutes, replacements, accretions, accessions and
products of any of the Collateral.
2. Debtor's Warranties, Representations and Covenants. Until the
Note and all other obligations of Debtor under this Agreement have been fully
satisfied and discharged, and except as hereinafter expressly set forth, Debtor
warrants, represents and agrees as follows:
(a) Debtor is the sole owner of the Collateral free from any
liens, security interests or encumbrances, other than the security
interest granted in Debtor's accounts and inventory in favor of Bank of
Little Rock ("Bank"), not exceeding $300,000 in principal amount
(exclusive of interest, costs and expenses relating to such principal
amount), has the right to grant Secured Party a security interest
therein, and will defend and keep the Collateral free from all claims
and demands other than those of Bank and Secured Party;
(b) Debtor will not sell or lease the Collateral, part with
possession of the Collateral, permit the Collateral to be used for
hire, or grant any other liens or security interests in the Collateral,
except in the ordinary course of Debtor's business, without the prior
written consent of Secured Party;
(c) Debtor will not use or permit the Collateral to be used in
violation of any law or ordinance, and will comply with the
requirements of all state, local and Federal laws;
(d) Debtor will maintain the Collateral in good condition and
repair at Debtor's sole expense and will pay all taxes levied on the
Collateral;
(e) Debtor will do all acts and things, and will execute and
file all instruments requested by Secured Party to establish, maintain
and continue perfected the security interests of Secured Party in the
Collateral, and will pay all costs and expenses of filing and
recording, including the costs of any searches deemed necessary by
Secured Party to establish and determine the validity and priority of
the security interest of Secured Party, and also to pay all other
claims and charges which in the opinion of Secured Party might
prejudice, imperil or other affect the Collateral or Secured Party's
security interest;
(f) Debtor will keep and maintain in force insurance covering
loss or damage to the Collateral, with (if requested by Secured Party)
a lender's loss payable clause in
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favor of Secured Party, as is required and acceptable to Secured Party
as to form of policy, amount and insurer;
(g) The Collateral as well as all books and records concerning
same shall at all times be located at the address set forth above and
this is Debtor's only place of business; and
(h) Debtor's name is as provided in the first paragraph hereof
and it has no other names or trade names nor has it used any other
names or trade names in the past five years.
3. Default. Debtor shall be in default under this Agreement upon:
(a) Default in the payments of any sums due pursuant to the
Note or this Agreement or failure to perform or discharge any other
covenant or liability contained in this Agreement;
(b) Reasonable determination by Secured Party that any
material warranty or material representation herein made was false when
made;
(c) Sale or encumbrance of any of the Collateral other than in
the ordinary course of business or as permitted by this Agreement, or
the making of any levy, seizure or attachment thereof, except as herein
expressly permitted;
(d) Any event of default under any loan agreement, guaranty or
secured agreement between Debtor and any other lender, including Bank,
to which Debtor is now or may hereafter become obligated, whether now
existing or hereafter incurred; or
(e) Dissolution, termination of existence, insolvency or
business failure of Debtor, or appointment of a receiver for any part
of the Collateral, or any assignment for the benefit of creditors of
Debtor or the commencement of any proceeding under any bankruptcy or
insolvency law by or against Debtor.
Upon any and each and every such event of default and at any time thereafter,
Secured Party may declare all obligations secured hereby immediately due and
payable and may proceed to enforce payment of the same and exercise any and all
rights and remedies provided by the Uniform Commercial Code as enacted in
Arkansas, as well as other rights and remedies possessed by Secured Party.
Expense for preparing for sale or selling or exercising any other remedies as
provided herein with respect to the Collateral shall include Secured Party's
reasonable attorneys fees and legal expenses. Any notification of sale or other
disposition of the Collateral required to be given by Secured Party will be
sufficient if given personally, or mailed by certified mail, not less than five
days prior to the date on which such sale or other disposition will be made, to
the address of Debtor stated above, and such notification shall be deemed
reasonable notice. In the event the proceeds from the sale of the Collateral
shall be insufficient to satisfy Debtor's obligations pursuant to the Note or
this Agreement in full, Debtor shall remain fully liable for the deficiency.
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4. Term of Agreement. This Agreement shall commence as of the day
and year first above written and shall continue in full force and effect until
all sums of principal and interest outstanding under the Note and all sums due
under this Agreement have been paid in full.
5. Assignment of Security Interest. Secured Party shall have the
right to negotiate or assign the security interest evidenced by this Agreement,
and Debtor understands and agrees that Secured Party may do so without any
notice to or approval of Debtor. Debtor specifically agrees that if there is any
such assignment, the assignee or transferee shall have all of Secured Party's
rights and remedies under this Agreement.
6. Miscellaneous. No amendment, modification, termination or
waiver of any provision of this Agreement shall be effective unless the same
shall be in writing and signed by each of the parties, and any such amendment,
modification, termination or waiver shall be effective only in the specific
instance and for the specific purpose for which given. This Agreement shall be
binding upon and inure to the benefit of each of the parties hereto and their
respective successors and assigns.
IN WITNESS WHEREOF, the parties have caused this Security Agreement to
be executed as of the day and year first above written.
TRANSMEDICA INTERNATIONAL, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
--------------------------
Title: President
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XXXXXXX, INC.
By: /s/ Xxxxx X. XxXxxxx
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Name: Xxxxx X. XxXxxxx
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Title: CEO and President
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EXHIBIT INDEX
Settlement Agreement dated June 2, 1998, between
TransMedica International, Inc. and XxXxxxx, Inc.
Exhibit Number
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A Amended and Restated Agreement - Omitted
B Promissory Note
C Security Agreement
D Patent Security Agreement - Omitted
E Warrant - Omitted
** XXXXXXX AGREES TO FURNISH, SUPPLEMENTALLY, A COPY OF ANY OMITTED SCHEDULE
OR EXHIBIT TO THE SECURITIES AND EXCHANGE COMMISSION UPON REQUEST.
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