Exhibit 10.11
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release ("Agreement") is made
and entered into as of the 19th day of June, 2002, by and among Plexus Services
Corp., of 00 Xxxxxxxx Xxxx Xxxxx, Xxxxxx, Xxxxxxxxx 00000 ("Claimant"), and
Nephros, Inc., of 0000 Xxxxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Nephros"). As used throughout this Agreement, the term "Parties" refers to the
Claimant and Nephros and the term "Party" refers to any one of the same.
RECITALS
A. WHEREAS, Claimant and Nephros were engaged in a business
relationship under the terms of that certain Navaho Project Plan Agreement,
dated April 20, 1999, between Nephros and SeaMED Corporation, predecessor in
interest to Claimant (the project contemplated thereby being called herein the
"Navaho Project");
B. WHEREAS, Claimant has asserted a claim against Nephros in
the amount of $1,832,496.87 (the "Claim");
C. WHEREAS, Nephros does not dispute the amount of the Claim.
D. WHEREAS, the Parties have agreed to a manner in which the
Claim will be paid and satisfied by Nephros.
NOW, THEREFORE, in consideration of the following mutual terms,
covenants and conditions, the Parties, and each of them, do hereby agree as
follows:
1. Payment. Nephros shall pay the Claimant the sum of
$650,000 by wire transfer in accordance with the schedule set forth below:
Payment Due Date
$300,000 Upon consummation of the first infusion
of any capital into Nephros after the
date of this Agreement, in whatever form,
which results in net cash proceeds to
Nephros exceeding $500,000 (the "First
Infusion").
$100,000 No later than six (6) months after the
First Infusion.
$250,000 Upon the consummation of an infusion of
capital into Nephros occurring after the
First Infusion
and on terms materially different from the
First Infusion, or characterized by Nephros
as a subsequent offering from the First
Infusion, in whatever form, which results in
net cash proceeds to Nephros of at least
$1,250,000 (the "Second Infusion").
In the event the capital raised by Nephros after the date hereof is
less than the relevant thresholds set forth above, the payment obligation of
Nephros to Claimant shall be to make payment to Claimant in the amount of 20% of
the gross proceeds of any such capital infusion.
2. Warrant. Simultaneously with its execution and delivery of
this Agreement, Nephros is executing and delivering to Claimant a warrant
granting Claimant the right to purchase 600,000 shares of common stock of
Nephros (the "Stock Purchase Warrant").
3. Satisfaction of Claim. Upon the execution and delivery of this
Agreement by the Parties, the execution and delivery of the Stock Purchase
Warrant by Nephros, and Nephros's compliance with its payment obligation under
Section 1 hereof, the Claim shall be fully paid and satisfied and Nephros and
all of its successors in interest, and all its agents, officers, directors,
associates, affiliates, employees, representatives, attorneys, heirs, assigns,
and/or their successors in interest, shall be forever released and discharged
from any and all claims, causes of action, liabilities, damages, costs or
demands of whatever character relating to the Claim, the Navaho Project or the
Navaho Project Plan Agreement. Upon Nephros' payment to Claimant of the $300,000
payment referenced above, all right, title and interest to all materials and
other assets, whether tangible or intangible, related to or prepared in
connection with the Navaho Project (including but not limited to molds, computer
and machine hardware and product documentation), and all intellectual property
related thereto, shall automatically, without the necessity of any action by any
Party, be conveyed and transferred to Nephros and Claimant shall,
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promptly upon such payment, cause Nephros, to have sole access to such materials
and other assets, at no additional cost to Nephros. Claimant shall execute any
documentation reasonably requested by Nephros to evidence such conveyance,
transfer and sole access.
Releases. Except for any and all obligations and/or duties arising
out of this Agreement, each Party does hereby and forever release and discharge
the other Party, and all of its respective successors in interest, and all its
agents, officers, directors, associates, affiliates, employees, representatives,
attorneys, heirs, assigns, and/or their successors in interest, from any and all
claims, causes of action, liabilities, damages or demands of whatever character
which such Party now has, whether known or unknown, against the other Party.
5. Representations. (a) Nephros hereby represents and warrants that
(i) Nephros has all requisite power and authority to execute and deliver this
Agreement and the Stock Purchase Warrant and to perform its obligations
hereunder and thereunder, (ii) this Agreement and the Stock Purchase Warrant
have been duly and validly executed and delivered by Nephros and constitute
valid and binding obligations of Nephros, enforceable against Nephros in
accordance with their respective terms, and (iii) neither the execution and
delivery of this Agreement or the Stock Purchase Warrant by Nephros, nor the
consummation by Nephros of the transactions contemplated hereby or thereby, will
(a) conflict with or violate any provision of the Charter, By-laws or other
governing documents of Nephros, (b) require on the part of Nephros any filing
with, or approval of, any governmental entity or (c) violate in any material
respect any order, writ, injunction, decree, statute, rule or regulation
applicable to Nephros, or any of its properties or assets.
(b) Claimant hereby represents and warrants that (i) Claimant has
the requisite power and authority to execute and deliver this Agreement, (ii)
this Agreement has been duly
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and validly executed and delivered by Claimant and constitutes the valid and
binding obligation of Claimant, enforceable against Claimant in accordance with
its terms, (iii) neither the execution and delivery of this Agreement, nor the
consummation by Claimant of the transactions contemplated hereby, will (a)
conflict with or violate any provision of the Charter, By-laws or other
governing documents of Claimant, (b) require on the part of Claimant any filing
with, or approval of, any governmental entity or (c) violate in any material
respect any order, writ, injunction, decree, statute, rule or regulation
applicable to Claimant, or any of its properties or assets, (iv) Claimant owns
the Claim free from any lien or other encumbrance and has not assigned to any
person or entity, in whole or in part, any rights in, or arising out of, the
Claim, the Navaho Project or the Navaho Project Plan Agreement, (v) the Claim is
the only obligation of Nephros or any of its affiliates arising out of the
Navaho Project, and (vi) Claimant is the successor in interest to SeaMED
Corporation as a result of a merger of SeaMED Corporation with and into
Claimant.
6. Covenants. Each Party covenants to the other that it will use
commercially reasonable efforts to take all actions and to do all things
necessary, proper or advisable to consummate the transactions contemplated by
this Agreement. Nephros agrees to provide to Claimant information with respect
to the business and affairs of Nephros similar to that provided to equity
investors in Nephros with investment interests in Nephros comparable to
Claimant's interest (assuming the exercise by Claimant of the Stock Purchase
Warrant). Nephros agrees to use its commercially reasonable best efforts to
obtain the consent of the investor providing the "bridge" financing to permit
Nephros to continue to conduct its operations pending its initial public
offering to permit Claimant to have the right to register the common stock
underlying the Stock Purchase Warrant in a Nephros registration statement (other
than for
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its initial public offering or on Form S-8 or S-4 or similar or successor form),
under customary terms and conditions.
7. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the Parties and their respective agents,
employees, heirs, successors and assigns.
8. Waiver, Modification and Amendment. No provision hereof may be
waived unless in writing and signed by the Party whose rights are thereby
waived. Waiver of any one provision herein shall not be deemed to be a waiver of
any other provision herein (whether similar or not), nor shall such waiver
constitute a continuing waiver unless otherwise expressly so provided.
9. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of New York, without giving effect to any choice of
law or conflict of law provision or rule that would cause the application of the
laws of any jurisdictions other than the State of New York..
10. Severability. In the event that any term or provision of this
Agreement contradicts any term or provision of any other document, instrument or
agreement between the Parties, the terms of this Agreement shall control. If any
provision of this Agreement shall be invalid, illegal or otherwise
unenforceable, such provision shall be severable from all other provisions of
this Agreement, and the validity, legality and enforceability of the remaining
provisions of this Agreement shall not be adversely affected or impaired, and
shall thereby remain in full force and effect.
11. Entire Agreement. It is expressly understood and agreed that
this Agreement constitutes the entire understanding and agreement between the
Parties hereto, and supersedes and replaces all prior negotiations, agreements
or understandings between the Parties,
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whether written or oral, in each case relating to the subject matter hereof.
This Agreement may not be modified by the Parties except by written instrument
executed by an authorized officer of each Party. Each of the Parties
acknowledges and represents that no other Party or agent or attorney of any
other Party has made a promise, representation, or warranty whatsoever, express
or implied, not contained herein concerning the subject matter of this
Agreement. Each Party acknowledges and represents that it has not executed this
Agreement in reliance upon any promise, representation or warranty whatsoever
not expressly set forth in this Agreement.
12. Representations of Authority. The persons signing below
each represent and warrant that they have the authority to enter into this
Agreement on behalf of the Party on whose behalf they so sign.
13. Rights and Remedies Cumulative. The rights and remedies
provided for in this Agreement or by law shall, to the extent permitted by
law, be cumulative.
14. Reliance on Own Judgment. The Parties hereto acknowledge and
agree, that in deciding to execute this Agreement, they have relied entirely
upon their own respective judgment and have had adequate time to consider its
terms and effects and to ask questions that they may have of anyone, including
legal counsel of their own choosing. By signing this Agreement, the Parties
hereto further acknowledge that they have been afforded a reasonable and
sufficient period of time to review, for deliberation thereon and or the
negotiations of the terms of this Agreement.
15. Counterparts. This Agreement may be signed in multiple
counterpart copies, each of which shall constitute an original, with the same
force and effect as if each of the Parties hereto has signed a single
instrument.
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16. Notices. All notices under this Agreement shall be in writing,
and may be delivered by hand, sent by overnight delivery by a nationally
recognized overnight courier service or by registered mail, return receipt
requested. Notices delivered by hand shall be effective upon receipt. Notices
sent by courier or mail shall be deemed received on the date of receipt
indicated by the return verification provided by the U.S. postal service or the
records of the courier service. Notices shall be given or sent to the parties at
the addresses set forth on the first page of this letter agreement, or to such
other address as either party may designate in writing in a notice complying
with this Section 16. Notices sent to Claimant shall be addressed to the General
Counsel of Claimant.
IN WITNESS THEREOF, the undersigned Parties have executed this
Agreement effective as of the date first set forth above.
DATED: June ___, 2002 Nephros, Inc.
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By:
Title:
DATED: June ___, 2002 Plexus Services Corp.
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By:
Title:
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