EXHIBIT 10.53
SETTLEMENT AGREEMENT
This Settlement Agreement is entered into as of the 13 day of October
2005 by and between Advanced Refractive Technologies Inc. (the "Company") and
Xxxxxxx Medizintechnik GmbH (Xxxxxxx),
RECITALS:
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Certain disputes have arisen between the Company and Xxxxxxx, and the
parties desire to reach a full compromise and settlement of all obligations and
disputes BETWEEN THEM IN their entirety, and to enter into a mutual general
release;
NOW, THEREFORE; the parties agree as follows:
1. MUTUAL RELEASES.
1.1 RELEASE OF THE COMPANY. Xxxxxxx, acting on his own behalf
and on behalf of its directors and officers hereby unconditionally releases and
discharges the Company, and its officers, directors, agents, successors and
representatives, from any and all claims, liabilities, demands, obligations,
costs, expenses, actions and causes of action, of every nature, character and
description, known or unknown, fixed or contingent, which Xxxxxxx (or any person
claiming through or on behalf of Xxxxxxx) now owns or holds, or has at, any time
heretofore owned or held, against any of them,
1.2 Release of Xxxxxxx. The Company, acting on its own behalf
and on behalf of its directors and officers, hereby unconditionally releases and
discharges Xxxxxxx from any and all claims, liabilities, demands, obligations,
costs, expenses, actions and causes of action; of every nature, character and
description, known and unknown, fixed or contingent, which the Company (or any
person claiming through or on behalf of the Company) now owns or holds; or has
at any time heretofore owned or held, against Xxxxxxx.
2 ATTORNEYS' FEES, If any legal action arises under this Agreement, the
prevailing party shall be entitled to recover all costs and expenses, including
reasonable attorneys' fees, incurred to enforce or interpret this Agreement.
3. ENTIRE AGREEMENT. This Agreement represents the entire agreement
between the parties hereto with respect to the subject matter hereof, and
supersedes all prior agreements, representations and understandings,
4. ADVICE; REPRESENTATION. Xxxxxxx and the Company each acknowledges
that it has obtained such advice, including advice from legal counsel, as it has
deemed necessary and appropriate under the circumstances. Each of Xxxxxxx and
the Company is aware that under this Agreement it forgoes certain legal rights,
and is willing to forego those rights in exchange for the settlement
consideration described herein.
5. TERMINATION OF THE MANUFACTURING SUPPLY AND DISTRIBUTION AGREEMENT.
The Company acknowledges and agrees that the Manufacturing, Supply and
Distribution Agreement dated as of April 27, 2004 by and between Xxxxxxx and the
Company (the "Agreement") is terminated and that neither Xxxxxxx nor the Company
has any further obligations under the Agreement other than the Confidentiality
provisions of Section 15 and the recordkeeping requirements of Section 3.2(iv)
of the Agreement which shall survive such termination.
6. FURTHER ASSURANCES. The Company agrees to promptly provide Xxxxxxx
with (i) a complete list of customer names, addresses; and Xxxxxxx products sold
by the Company; and (ii) the Company's customer complaint file for Xxxxxxx
products. The Company also agrees to promptly provide to Xxxxxxx any and all
relevant information in the Company's control or possession that may be
necessary for Xxxxxxx to respond to any regulatory requirement or inquiry or to
allow Xxxxxxx to deal with any Xxxxxxx product recall.
7, GOVERNING LAW. This Settlement Agreement shall be governed by the
laws of the Federal State of Baden-Wuerttemberg in Germany without regard to its
conflicts of law provisions.
8. COUNTERPARTS. This Settlement Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but both of which
together shall be deemed one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
Advanced Refractive Technologies Inc.
By: /s/ Xxxxxx X. Xxxxxx
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President
Xxxxxxx Madizintechnik GmbH
By: /s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx, Managing Director
