EXHIBIT 10.18
SETTLEMENT AGREEMENT AND MUTUAL RELEASE OF ALL CLAIMS
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AGREEMENT, dated as of August 8, 2000 among XXXXXXX X. XXXXXXX
("X. Xxxxxxx"), XXXXXXXX XXXXXXX by and through his Guardian ad litem Xxxxxxx X.
Xxxxxxx ("X. Xxxxxxx") (collectively, "Claimants"), XXXX XXXXXXX ("X. Xxxxxxx"
and collectively with X. Xxxxxxx and X. Xxxxxxx, the "Kesslers"), CAPRIUS, INC.
a Delaware corporation, formerly Advanced Mammography Systems, Inc. (the
"Company"), and XXXX XXXXXX ("Xxxxxx", and collectively with the Company, the
"Defendants").
Recitals.
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This Agreement is entered into with reference to the following facts:
A. S. Xxxxxxx and X. Xxxxxxx have filed an action against the
Company and Xxxxxx seeking monetary damages, costs and attorneys' fees,
captioned as Xxxxxxxx Xxxxxxx and Xxxxxxx X. Xxxxxxx v. Caprius, Inc. and Xxxx
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Xxxxxx with the United States District Court in the Central District of
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California, being numbered as Case No. SA CV 99-193 DOC (EEx) on the docket of
that court and Defendants filed a counterclaim against X. Xxxxxxx for common law
fraud, breach of contract, negligent misrepresentation and indemnity, and filed
a third party complaint against X. Xxxxxxx for negligent misrepresentation and
indemnity (the "Action");
B. The Defendants have denied and continue to deny any and all
liability with respect to the Claimants and the Kesslers have denied and
continue to deny any and all liability with respect to the Defendants;
C. The Defendants and the Claimants consider it desirable that the
Action be settled on the terms set forth in this Agreement because such
settlement would put to rest all present controversy and would avoid the further
expense, inconvenience and devotion of time and effort of Claimants and the
Defendants;
X. X. Xxxxxxx, as the father of X. Xxxxxxx and the former spouse of
X. Xxxxxxx, and as the placement representative for the securities which are the
subject matter of the Action, also considers it desirable that the Action be
settled; and
E. The Claimants, X. Xxxxxxx and the Defendants desire to fully and
finally settle and resolve any and all claims and disputes between them relating
to the subject matter of the Action and to terminate those controversies and to
subject themselves only to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual conditions, covenants
and other obligations set forth herein, the receipt and adequacy of which is
acknowledged, it is agreed by Claimants, X. Xxxxxxx and the Defendants as
follows:
1. Definitions. In this Agreement, the following terms have the
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meanings stated:
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1.1 The "Company" means the Company, and each and all of its
officers, directors, employees, stockholders, owners, representatives, past
employees, attorneys, agents, predecessors, successors, insurers, assigns,
subsidiary corporations, parent corporations, joint venturers, sibling
corporations and affiliates and each and all of their respective related or
affiliated persons, firms, corporations, associations, partnerships and/or other
entities of each and every kind or nature whatsoever, regardless of the name or
names under which any of them may now or in the future be known and/or do
business.
1.2 The "Parties" means X. Xxxxxxx, X. Xxxxxxx, X. Xxxxxxx, the
Company and Xxxxxx.
1.3 The "Claimants" means X. Xxxxxxx and X. Xxxxxxx.
1.4 The "Defendants" means the Company and Xxxxxx.
1.5 "Third Person" means any and all persons, firms,
corporations, associations, partnerships and/or other entities of each and every
kind or nature whatsoever, other than the Parties.
1.6 "Claims" means any and all claims, demands, rights, disputes,
controversies, causes of action, rights of action, rights of subrogation, rights
of indemnity, rights to reimbursement, rights to payment, liens, and remedies of
each and every kind or nature, whether civil, criminal, at law, in equity,
vested, contingent, accrued or unaccrued, or known or unknown to the Parties or
any of them.
1.7 The "Xxxxxxx Claims" means all those Claims and allegations
which were or could have been made against the Defendants by X. Xxxxxxx or X.
Xxxxxxx before any federal or state agency or tribunal at any time, regardless
of whether they were contained in the Action.
1.8 The "Xxxxxxx Parties" means X. Xxxxxxx, X. Xxxxxxx and X.
Xxxxxxx.
1.9 "Obligations" means any and all obligations, duties,
liabilities, damages, costs, fees, expenses and debts of each and every kind or
nature whatsoever, vested or contingent, accrued or unaccrued, whether known or
unknown to the Parties or either of them.
1.10 "To agree" means to agree, to promise, to covenant, to
warrant, to understand, to represent, to recognize and/or to acknowledge.
1.11 An "agreement" means an agreement, a promise, a covenant, an
undertaking, a warranty, an understanding, a contract, a representation and an
acknowledgment.
1.12 "On account of" means directly or indirectly arising from or
out of; resulting from; based upon; connected with; or in any manner related to,
in the past, at the present, or in the future, the subject to which that phrase
refers.
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2. Incorporation by Reference. The recitals set forth above are
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hereby incorporated by this reference.
3. Consideration Provided by the Defendants. Without admitting
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any liability whatsoever, the Defendants have agreed to provide the Claimants
things of value as specifically provided in this Paragraph No. 3 solely in full
and complete consideration of the Claimants making and fully performing each and
all of the agreements and Obligations made and undertaken by them pursuant to
this Agreement. Such things of value are:
3.1 The Company shall issue each X. Xxxxxxx and X. Xxxxxxx
Twenty-Five Thousand (25,000) shares of fully paid and non-assessable Common
Stock of the Company, par value $.01 per share (the "Common Stock").
3.2 The Company shall issue warrants (the "Warrants"), in the
form attached hereto as Exhibit A, to each X. Xxxxxxx and X. Xxxxxxx to purchase
from the Company, Sixty Thousand (60,000) shares (the "Warrant Shares") of
Common Stock at an exercise price of Twenty-Five Cents ($.25) per Warrant Share,
in substitution for warrants originally issued to X. Xxxxxxx and X. Xxxxxxx (the
"Original Warrants").
3.3 The Company and Xxxxxx each agree to provide the Claimants
the release of claims as set forth in Paragraph No. 5 of this Agreement.
The Claimants and X. Xxxxxxx agree to accept the consideration
specified above in this Paragraph No. 3 as full, complete and adequate
consideration for their executing this Agreement and for making and fully
performing each and all of the agreements and Obligations made and undertaken by
them in this Agreement. The Claimants acknowledge that the Common Stock to be
received upon the settlement will be "restricted securities," as defined in
Regulation D under the Securities Act of 1933, as amended, and the certificates
issued therefor will contain restrictive legends referring to such status;
provided however, the Common Stock and the Warrant Shares issued pursuant to
Sections 3.1 and 3.2 above will be included in the Company's Amendment No. 1 to
its Registration Statement filed on July 25, 2000, to which the Company will use
its best efforts to file prior to August 15, 2000.
4. Consideration Provided by the Claimants. Following
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negotiations between the Parties, the Claimants and X. Xxxxxxx have agreed to
provide to the Company the things of value as specifically provided in this
Paragraph No. 4 solely in full and complete consideration of the Company and
Xxxxxx making and fully performing each and all of the agreements and
Obligations made and undertaken by them pursuant to this Agreement. Such things
of value are:
4.1 The Claimants and Defendants shall dismiss the Action in its
entirety with prejudice;
4.2 The Claimants shall deliver the Original Warrants to the
Company; and
4.3 The Xxxxxxx Parties shall provide the Company with the
Release of Claims as set forth in Paragraph No. 5 of this Agreement.
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X. Xxxxxxx acknowledges that he is not to receive any separate
consideration from the Defendants with respect to the matters in this Agreement.
The Defendants agree to accept the consideration specified above in this
Paragraph No. 4 as full, complete and adequate consideration for their executing
this Agreement and for making and fully performing each and all of the
agreements and Obligations made and undertaken by each of them in this
Agreement.
5. Release. For the sole consideration described in this
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Agreement and save for the rights and obligations herein:
5.1 The Xxxxxxx Parties hereby release, remise, acquit and
forever discharge the Company, its officers, directors, shareholders,
successors, all past, present and future officers, directors, shareholders,
employees, agents and representatives, subsidiaries and related entities and
assigns and Xxxxxx of and from any and all of the Xxxxxxx Claims and, any Claims
and Obligations of each and every kind or nature whatsoever which the Claimants
have or may hereafter obtain or accrue on account of the Action, the Xxxxxxx
Claims, and/or any fact, matter, incident, Claim, injury, event, circumstance,
happening, occurrence and/or thing of any kind or nature whatsoever which arose
or occurred at any time prior to the date of the Xxxxxxx Parties' execution of
this Agreement.
5.2 The Xxxxxxx Parties specifically agree that this Agreement is
made by them with their full, complete, unrestricted and informed knowledge and
consent that this Agreement covers any and all possible Claims and Obligations;
and that the consideration stated in Paragraph No. 3 of this Agreement is all
that the Xxxxxxx Parties and/or any of their heirs, assigns, agents, attorneys,
representatives and/or affiliates and/or any other natural or fictitious person
affiliated or in privity with them in any manner are ever to receive from the
Company for any and all Claims and Obligations of any kind or nature on account
of the Xxxxxxx Claims, the Action, and/or any fact, matter, incident, Claim,
injury, event, circumstance, happening, occurrence and/or thing of any kind or
nature, which arose or occurred at any time prior to the date of the Xxxxxxx
Parties' execution of this Agreement.
5.3 The Defendants hereby release, remise, acquit and forever
discharge the Xxxxxxx Parties, InterFirst Capital Corp., formerly known as
Baraban Capital Corp., its officers, directors, shareholders, successors, all
past, present and future officers, directors, shareholders, employees, agents
and representatives, subsidiaries and related entities and assigns of and from
any and all Claims and Obligations of each and every kind or nature whatsoever
which either of the Defendants has or may hereafter obtain or accrue on account
of the Action and/or any fact, matter, incident, Claim, injury, event,
circumstance, happening, occurrence and/or thing of any kind or nature
whatsoever which arose or occurred at any time prior to the date of the
Defendants' execution of this Agreement.
5.4 The Defendants specifically agree that this Agreement is made
by them with their full, complete, unrestricted and informed knowledge and
consent that this Agreement covers any and all possible Claims and Obligations
and that the consideration stated in Paragraph No. 4 of this Agreement is all
that they and/or any of their respective assigns, agents, attorneys,
representatives and/or affiliates and/or any other natural or fictitious person
affiliated or in privity with either of them in any manner are ever to receive
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from the Xxxxxxx Parties for any and all Claims and Obligations of any kind or
nature on account of the Action and/or any fact, matter, incident, Claim,
injury, event, circumstance, happening, occurrence and/or thing of any kind or
nature, which arose or occurred at any time prior to the date of their execution
of this Agreement.
5.5 The Parties specifically agree that their release of the
others set forth in this Agreement extends to all Claims and/or Obligations of
any kind or nature whatsoever, including but not limited to any and all Claims
and/or Obligations which might be cognizable before any federal and/or state
agency and/or federal and/or state court, and they expressly, knowingly and
voluntarily waive all rights under Section 1542 of the Civil Code of the State
of California. Said Section 1542 provides as follows:
1542. General Release - Claims Extinguished.
A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the release,
which if known by him must have materially affected his settlement with the
debtor.
For all purposes of this Agreement, the term "creditor" as used and
referred to in Section 1542 of the Civil Code of the State of California means
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and refers to the Claimants and the Company and Xxxxxx and each of them.
6. No Further Claims. For the consideration described in this
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Agreement, the Claimants, X. Xxxxxxx and the Defendants agree that none of them
will file against the other or permit to be filed on their behalf against the
other, any claim, grievance, charge, complaint, lawsuit, legal action, or other
process of any kind, including, whether formal or informal, with any court,
board, panel, agency, commission, department, organization or other entity
concerning the Action, the Xxxxxxx Claims, and/or any fact, matter, incident,
Claim, injury, event, circumstance, happening, occurrence and/or thing of any
kind or nature which arose or occurred at any time prior to the date of the
execution of this Agreement.
7. Authority. Each of the Parties represents and warrants that
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he, she or it has the full power, authority and capacity to enter into this
Agreement and to consummate the transactions contemplated herein, and this
Agreement shall be valid and binding upon and enforceable against him, her or it
in accordance with its terms.
8. Attorneys' Fees and No Admission of Liability.
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8.1 The Parties agree that each Party to this Agreement and the
Action shall bear his, her or its own attorneys' fees and costs incurred in the
Action and in connection with the Agreement, except that the Defendants shall
pay $5,000 to Xxxxxxx X. XxXxxxxxx, counsel to the Claimants. The Parties agree
that neither the Xxxxxxx Parties nor the Defendants shall have any Obligation
whatsoever in connection with the compensation of the Parties' respective
attorneys in connection with this Agreement, the Action, the Xxxxxxx Claim,
and/or any fact, matter, incident, Claim, injury, event, circumstance,
happening, occurrence and/or thing of any kind or nature whatsoever which arose
or occurred at any time prior to the date of the Claimant's execution of this
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Agreement. The Parties also agree that they are solely responsible for
compensating their respective attorneys and each of them.
8.2 The Parties agree that neither this Agreement, their
participation in this Agreement, anything contained in this Agreement, nor the
fulfillment by the Parties of their Obligations pursuant to this Agreement shall
ever be construed to be an admission of any liability by the Defendants to the
Xxxxxxx Parties, by the Xxxxxxx Parties to the Defendants and/or to any Third
Person.
8.3 The Parties and each of the them specifically agree that
neither the Claimants nor the Defendants shall be considered, for any purpose
whatsoever or by any person whomsoever, to have been the "prevailing party" with
respect to any allegations, charges or causes of action which could have been
alleged in the Xxxxxxx Claims or any Claim or Obligation covered by this
Agreement within the meaning of any statute, rule, regulation, judicial
decision, ordinance or other provision of law or any other definition or meaning
of any kind or nature which is or may be in any manner applicable to this
Agreement and/or any of the paragraphs, terms and/or provisions of this
Agreement.
8.4 The Claimants and X. Xxxxxxx further agree that: (1) the
Defendants have recommended that they consult with an attorney of their choice
concerning the Xxxxxxx Claims, the Act, this Agreement and each and all of the
results and consequences of their execution of this Agreement; and (2) they have
had at least twenty-one days, or have had the opportunity to have twenty-one
days in which to consider this Agreement and to consult with an attorney
entirely of their own choice, concerning the Xxxxxxx Claims, the Act, this
Agreement and each and all of the results and consequences of their execution of
this Agreement.
8.5 The Claimants and X. Xxxxxxx acknowledge that they or their
representative has received and read the latest publicly available information
of the Company and are fully aware of the status under the Securities Act of
1933, as amended, of the Company's securities being received by the Claimants
and the market for the Company's Common Stock.
9. Indemnification.
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9.1 The Xxxxxxx Parties jointly and severally agree that they
will indemnify and hold the Company, its officers, directors and employees and
Xxxxxx harmless from and against any and all Claims and Obligations, including
without limitation, reasonable attorneys' fees and costs of suit, on account of
any breach by the Claimants and X. Xxxxxxx and/or any agent, representative,
attorney, heir and/or assign of the Claimants and X. Xxxxxxx of any paragraph,
term or provision of this Agreement and/or in the event that it ever becomes
necessary for the Company or Xxxxxx to defend against any Claims of any kind or
nature whatsoever released by the Claimant and X. Xxxxxxx in this Agreement.
9.2 The Company agrees that it will indemnify and hold the
Claimants and X. Xxxxxxx harmless from and against any and all Claims and
Obligations, including without limitation, reasonable attorneys' fees and costs
of suit, on account of any breach by it and/or any agent, representative,
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attorney, heir and/or assign of the Company of any paragraph, term or provision
of this Agreement and/or in the event that it ever becomes necessary for the
Claimants or X. Xxxxxxx to defend against any Claims of any kind or nature
whatsoever released by the Company in this Agreement.
9.3 In any action or proceeding to enforce this Agreement or in
which this Agreement is properly interposed as a defense, the prevailing party
shall be entitled to an award of his, her or its reasonable attorneys' fees and
costs of litigation, including expert witness fees, in addition to any other
remedy or relief provided in law or at equity.
10. Successors and Assigns. All agreements and Obligations made
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and undertaken by the Parties pursuant to this Agreement apply to and bind the
Parties and each and all of his, her or its heirs, assigns, agents, attorneys
and/or representatives.
11. No Other Filings And Dismissal Of All Actions.
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11.1 The Parties agree that with the exception of the dissolution
matter between X. Xxxxxxx and X. Xxxxxxx, there is not pending between them any
lawsuits, actions, grievances, Claims, complaints, petitions, appeals, or
accusatory pleadings against any of the other Parties with any court, other
governmental agency, or any other public or private tribunal or forum prior to
their respective execution of this Agreement, save and except the Action.
11.2 To the extent that any lawsuits, Claims, actions,
grievances, complaints, petitions, liens, appeals or other accusatory pleadings
against the Company and Xxxxxx may be on file, including the Action, the
Claimants hereby direct that they be withdrawn and dismissed with prejudice, and
they hereby authorize the Company and Xxxxxx and instruct each and all of their
attorneys, agents and other representatives to take any and all steps necessary
to accomplish such withdrawal and dismissal with prejudice.
11.3 The Parties agree to stipulate and execute a Stipulation and
Order of Dismissal, in the form attached hereto as Exhibit A (the "Dismissal"),
dismissing the Action in its entirety, with prejudice, pursuant to Federal Rule
of Civil Procedure 41, and each party agrees to bear his, her or its costs or
attorneys fees. Claimants and/or their attorneys shall, concurrent with the
execution of this Agreement by the Claimants, deliver the Dismissal to counsel
for the Company, Xxxxxxx X. Xxxxxxx, Esq., Xxxxxx Xxxx & Priest LLP, 000 Xxxxx
Xxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000.
12. Ownership of Claims. The Claimants, X. Xxxxxxx and the
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Defendants agree that they have not heretofore assigned or transferred any of
the Claims and Obligations released by them in this Agreement, or any portion
thereof or interest therein, to any Third Person and that they have the full,
complete and unrestricted right to release each and all of the Claims and
Obligations released by them in this Agreement. The Claimants and X. Xxxxxxx
agree to indemnify, defend, and hold the Defendants harmless from and for any
and all Claims and Obligations released by them in this Agreement, on account of
any such transfer or assignment of any such Claims and Obligations or any
portion thereof or interest therein. The Defendants agree to indemnify, defend,
and hold the Claimants and X. Xxxxxxx harmless from and for any and all Claims
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and Obligations released by them in this Agreement, on account of any such
transfer or assignment of any such Claims and Obligations or any portion thereof
or interest therein.
13. Acknowledgments.
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13.1 The Claimants, the Defendants and X. Xxxxxxx have at all
pertinent times and for all purposes in connection with their Claims and
Obligations and this Agreement had, and/or had the unrestricted right and
opportunity to have, the full and complete benefit and advice of independent and
competent legal counsel chosen and retained solely by them and have had, and/or
have had the unrestricted right and opportunity to have, such legal counsel
fully explain to them the meaning of each and every paragraph, term and/or
provision of this Agreement and the entire meaning and each and all of the
consequences of their execution of this Agreement.
13.2 This Agreement is entered into by the Parties without any
reliance upon any agreement, statement, representation, promise, covenant,
understanding and/or other inducement of any kind or nature other than the
express terms of this Agreement, and this Agreement contains the entire, full
and complete agreement of the Parties without any exceptions or limitations
whatsoever, and cannot be amended, modified or terminated except by an agreement
in writing executed by the Parties hereto.
13.3 Each and all of the paragraphs, terms and/or provisions of
this Agreement are contractual and not mere recitals, and each and every such
paragraph, term and/or provision is of the essence of the entire agreement
contained in this Agreement.
13.4 This Agreement shall not ever, in any manner or for any
purpose, by any person whomsoever or based upon any foreseen or unforeseen
facts, events, circumstances, occurrences, happenings or things of any kind or
nature, be subject to any claim of mistake of fact or mistake of law by the
Parties.
13.5 Regardless of the adequacy of the consideration specified in
this Agreement, this Agreement is intended by each of the Parties fully,
completely and forever to compromise and settle any and all intended and/or
current litigation, Claims and/or Obligations by the Xxxxxxx Parties against the
Defendants and/or by the Defendants against the Xxxxxxx Parties, avoid any and
all future litigation, Claims and/or Obligations between the Xxxxxxx Parties and
the Defendants, and be a full, final, binding and complete agreement,
compromise, settlement and release of any and all possible Claims and/or
Obligations between them.
13.6 The headings in this Agreement are inserted for convenience
only; are not part of this Agreement; shall not in any manner affect the meaning
of this Agreement or any paragraph, term and/or provision of this Agreement; and
shall not be deemed or interpreted to be a part of this Agreement for any
purpose.
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13.7 This Agreement shall be interpreted solely pursuant to the
laws of the State of California without any regard or consideration for any
conflicts of laws principles.
13.8 The language of this Agreement shall, for any and all
purposes, be construed as a whole, according to its fair meaning, not strictly
for or against the Xxxxxxx Parties or the Defendants and without regard to the
identity or status of any person or persons who drafted all or any part of this
Agreement.
13.9 If any provision of this Agreement is declared invalid by
any court of competent jurisdiction or rendered invalid by any other process of
federal or state law, the remaining provisions of this Agreement shall remain in
full force and effect.
13.10 No waiver of any breach or condition of this Agreement
shall be construed for any purpose as a waiver of any other breach or condition
of this Agreement, regardless of the similarity or dissimilarity of the breaches
or conditions involved.
13.11 This Agreement may be executed in multiple copies such that
after all of the Parties have executed their respective copies, each copy will
have the effect of an original.
13.12 This Agreement constitutes the sole and entire agreement
among the Defendants, the Claimants and X. Xxxxxxx concerning the Action, the
Xxxxxxx Claims, and each and every other aspect of the relationship of each and
every kind or nature whatsoever among the Parties. This Agreement supersedes any
and all prior agreements, contracts, representations, understandings,
discussions and/or negotiations, if any, whether oral or written.
13.13 This Agreement shall be effective as to the Claimants and
X. Xxxxxxx seven days after it is executed by the Claimants. It shall be
effective as to the Company seven days after it is executed by the Claimants and
X. Xxxxxxx, and the Company's execution, whichever occurs later.
13.14 Including signatures, this Agreement consists of 10 pages,
exclusive of Exhibit A. This Agreement may be executed in multiple copies, each
copy having the force and effect of an original.
Executed this day of August, 2000.
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Xxxxxxx X. Xxxxxxx
Executed this day of August, 2000.
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Xxxxxxxx Xxxxxxx, by and through his
guardian ad litem, Xxxxxxx X. Xxxxxxx
Executed this day of August, 2000.
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Xxxx Xxxxxxx
Executed this day of August, 2000.
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Caprius, Inc.
By:
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Executed this day of August, 2000.
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Xxxx Xxxxxx
APPROVED AS TO FORM:
Dated: August , 2000 Law Offices of Xxxxxxx X. XxXxxxxxx
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Xxxxxxx X. XxXxxxxxx
Attorneys for Xxxxxxx Xxxxxxx,
Xxxxxxxx Xxxxxxx and Xxxx Xxxxxxx
Dated: August , 2000 Xxxxxx Xxxx & Priest LLP
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Xxxxxxx X. Xxxxxxx
Attorneys for Caprius, Inc. and
Xxxx Xxxxxx
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