EXHIBIT 10.15
SETTLEMENT AGREEMENT AND RELEASE AMONG
CRYSTALIX GROUP INTERNATIONAL, INC., XXXXX X. XXXX,
XXXX CAPITAL MANAGEMENT, INC. AND XxXXXX & XXXX
DATED JULY 21, 2004
SETTLEMENT AGREEMENT
AND RELEASE
This Settlement Agreement and Release (this "AGREEMENT") is made as of
July 21, 2004 by and between Crystalix Group International, Inc. (the "COMPANY")
and Xxxxx X. Xxxx ("XXXX"), Xxxx Capital Management, Inc., a Delaware
corporation ("XXXX CAPITAL"), and XxXxxx & Xxxx, a Delaware corporation
("XXXXXX" and, together with Xxxx and Xxxx Capital, the "XXXX PARTIES").
FACTUAL BACKGROUND
A. The Company is indebted to the Xxxx Parties in various amounts (the
"OBLIGATIONS") as more specifically referenced in the promissory notes attached
as Exhibits B, C, D, and E to this Agreement.
B. Certain of the Obligations are secured by a certain Security
Agreement dated as of December 23, 2002. Upon a default under such Obligations,
Xxxx filed a cross-complaint against the Company in a certain action known as
CRYSTALIX GROUP INTERNATIONAL, INC. X. XXXX, Case No. A465492, pending in the
District Court for Xxxxx County, Nevada (the "ACTION"). An Order Granting Writ
of Possession in favor of Xxxx was entered and filed in the Action on June 4,
2003 and an Amended Order Granting Writ of Possession was entered and filed in
the Action on August 15, 2003 (collectively, the "WRIT"). A copy of the Writ is
attached as Exhibit A to this Agreement. The complaint of the Company in the
Action was dismissed by Stipulation and Order entered and filed November 5,
2003.
C. The Company and the Xxxx Parties desire to agree as set forth below.
AGREEMENT
1. CONDITIONS PRECEDENT. The effectiveness of this Agreement is subject
to the delivery, by the Company, on or before August 15, 2004, of each of the
following, in form and substance satisfactory to the Xxxx Parties (the "CLOSING
DOCUMENTS"):
(a) The Promissory Notes in the form attached as Exhibits B, C, D,
and E to this Agreement;
(b) The Termination of Consulting Agreement in the form attached
as Exhibit F to this Agreement;
(c) The Warrant to Purchase Common Stock of Crystalix Group
International in the form attached as Exhibit G to this Agreement; and
(d) The Registration Rights Agreement in the form attached as
Exhibit H to this Agreement.
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2. SETTLEMENT. Upon satisfaction of the conditions precedent stated
in Section 1 above:
(a) The Obligations shall be amended and restated as provided in
the Closing Documents; and
(b) The Xxxx Parties will dismiss all claims in the Action with
prejudice; PROVIDED, HOWEVER, that the Obligations, as modified by the Closing
Documents, shall remain in full force and effect and shall continue to be
secured by the Security Agreement to the extent provided therein, and upon any
default under the Closing Documents the Xxxx Parties shall have all rights and
remedies provided by the Closing Documents or applicable law, including any
remedies against the collateral described in the Security Agreement
3. RELEASES. Subject to Section 1 above, the Company and the Xxxx
Parties each respectively, on behalf of itself and its successors, assigns,
agents and representatives, hereby releases and discharges each of the other
parties and their respective successors, assigns, shareholders, officers,
directors, members, managers, partners, agents, and representatives, from any
and all actions, causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, variances, trespasses, damages, judgments, executions, claims,
demands, costs, expenses, and liabilities whatsoever, known or unknown, in law
or equity, of, upon, relating to, or by reason of any matter, cause, or theory
whatsoever, except as provided in this Agreement and the Closing Documents.
4. COOPERATION. All parties shall make commercially reasonable best
efforts to take, or cause to be taken, all other actions necessary, proper or
advisable in order to fulfill their respective obligations hereunder and to
carry out the intent and purpose of this Settlement Agreement. The parties
hereto shall coordinate and cooperate with one another in exchanging information
and supplying such assistance as may be reasonably requested by each in
connection with the foregoing.
5. MUTUAL REPRESENTATIONS, WARRANTIES AND COVENANTS. Each party
hereto represents and warrants to the other parties that it has neither sold,
transferred or assigned any rights or claims which are the subject of this
Settlement Agreement nor agreed to take any of the foregoing actions. Each party
hereto covenants that it shall neither sell, transfer or assign any rights or
claims which are the subject of this Settlement Agreement nor attempt to take
any of the foregoing actions.
6. REMEDIES FOR BREACH. If either party hereto breaches this
Settlement Agreement, then in addition to all other relief to which any
non-breaching party is entitled, such non-breaching party shall be entitled to
all costs of enforcing this Settlement Agreement including, without limitation,
reasonable attorneys' fees, whether or not any proceeding is brought to enforce
his or its rights under this Settlement Agreement.
7. MISCELLANEOUS.
(a) NOTICES. Notice given by a party hereto under this Settlement
Agreement shall be in writing and shall be deemed duly given (i) when delivered
by hand; (ii) when three (3) days have elapsed after its transmittal by
registered or certified mail, postage prepaid, return
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receipt requested or one (1) business day has elapsed after its transmittal by a
nationally recognized overnight courier service; or (iii) when delivered by a
confirmed facsimile transmission. All notices, payments, and deliveries under
this Settlement Agreement shall be sent to the addresses set forth below, or
another as to which that party has given notice, in each case with a copy
provided in the same manner and at the same time to the persons shown below:
If to Company: 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx X000
Xxx Xxxxx, XX 00000
Attn: Xxxxx X. Xxxx, President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Xxxx Parties: c/o Charan Industries, Inc.
000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxxxx XxXxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Xxxxx & Xxxxxx L.L.P.
0000 Xxxxxx Xxxxxx Xxxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) ENTIRE AGREEMENT. This Settlement Agreement contains the
entire agreement and understanding of the parties hereto in respect of its
subject matter and supersedes all prior agreements and understandings between
the parties with respect to such subject matter.
(c) EXPENSES. Except as otherwise provided in this Settlement
Agreement, the parties hereto shall pay their own fees and expenses, including
their own counsel fees incurred in connection with this Settlement Agreement and
any transaction contemplated by this Settlement Agreement.
(d) AMENDMENT; WAIVER. This Settlement Agreement may not be
modified, amended, supplemented, canceled or discharged, except by written
instrument executed by both parties hereto. No failure to exercise, and no delay
in exercising, any right, power or privilege under this Settlement Agreement
shall operate as a waiver, nor shall any single or partial exercise of any
right, power or privilege hereunder preclude the exercise of any other right,
power or privilege. No waiver of any breach of any provision shall be deemed to
be a waiver of any preceding or succeeding breach of the same or any other
provision, nor shall any waiver be implied from any course of dealing between or
among the parties. No extension of time for performance of any obligations or
other acts hereunder or under any other agreement shall be deemed to be an
extension of the time for performance of any other obligations or any other
acts.
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(e) BINDING EFFECT; ASSIGNMENT. The rights and obligations of this
Settlement Agreement shall bind and inure to the benefit of the parties
including their respective shareholders, officers, directors, employees, agents,
affiliates, heirs, executors, successors and permitted assigns. Neither party
may assign any rights or obligations under this Settlement Agreement without the
other party's prior written consent. Any purported assignment without such
consent shall be null and void and shall constitute a breach of this Settlement
Agreement by the purported assignor.
(f) COUNTERPARTS. This Settlement Agreement may be executed in any
number of counterparts, each of which shall be an original but all of which
together shall constitute one and the same instrument.
(g) HEADINGS. The headings contained in this Settlement Agreement
are for convenience of reference only and are not to be given any legal effect
and shall not affect the meaning or interpretation of this Settlement Agreement.
(h) GOVERNING LAW. This Settlement Agreement shall be governed by
and construed in accordance with the laws and public policy of the State of
Nevada without regard to conflict of law principles.
(i) DRAFTING AMBIGUITIES. Each party and its counsel has had an
opportunity to review and revise this Settlement Agreement. The normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Settlement
Agreement or of any amendments or exhibits to this Settlement Agreement.
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Intending to be legally bound, the parties or their duly authorized
representatives have executed this Settlement Agreement as of the date first
above mentioned.
THE COMPANY: THE XXXX PARTIES:
Crystalix Group International, Inc. /s/ XXXXX X. XXXX
------------------------------------
Xxxxx X. Xxxx
By: /s/ XXXXX X. XXXX
--------------------------------
Xxxxx X. Xxxx, President Xxxx Capital Management, Inc.,
a Delaware corporation
By: /s/ XXXXX XXXX
-------------------------------- By: /s/ XXXXX X. XXXX
Xxxxx Xxxx, Secretary ---------------------------------
Xxxxx X. Xxxx, President
MrCary & Xxxx,
a Delaware corporation
By: /s/ XXXXX X. XXXX
---------------------------------
Xxxxx X. Xxxx, President
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