Exhibit 10.17
AGREEMENT OF SETTLEMENT AND MUTUAL RELEASE
This Agreement of Settlement and Mutual Release ("Agreement") is made
and entered into by and between the Board of Supervisors of Louisiana State
University and Agricultural and Mechanical College ("LSU"), on one hand, and
Ergo Research Corporation, Ergo Science Corporation, and Ergo Science Holdings,
Inc. (collectively "Ergo"), on the other hand.
WHEREAS, LSU and Ergo are parties to that certain Novated License and
Royalty Agreement effective May 1, 1995; and
WHEREAS, LSU commenced arbitration proceedings against Ergo that were
referred to the Xxxxxxxxx Xxxxxx X. Xxxxx concerning sublicense payments
allegedly due to LSU as a result of (1) the February 20, 1998 Joint
Collaboration and License Agreement between Ergo and The X.X. Xxxxxxx
Pharmaceutical Research Institute, and (2) the February 23, 1998 Stock Purchase
Agreement between Ergo Science Corporation and Xxxxxxx & Xxxxxxx Development
Corporation (the "Action"); and
WHEREAS, Ergo denies liability for the any of the claims that were
asserted or could have been asserted in the Action; and
WHEREAS, LSU and Ergo (each a "Party," and collectively "the Parties")
wish to settle all disputes between them that either Party currently holds or
owns against the other Party and to provide for the mutual release of all claims
and counterclaims that are known or should have been known as of the date of
this Agreement.
NOW, THEREFORE, IN CONSIDERATION FOR THE MUTUAL PROMISES AND MUTUAL
COVENANTS SET FORTH HEREIN, IT IS HEREBY STIPULATED, ACCEPTED AND AGREED, by and
between LSU and Ergo that:
1. Within five (5) business days of receipt by Ergo of an Agreement
executed by LSU, Ergo (a) shall pay LSU $2,450,000 by wire transfer, and (b)
issue to State Street Bank and Trust Co. of Connecticut, N.A., instructions to
release to LSU all proceeds in Account # 105599-099, which proceeds consist of
the original principal and all accrued interest.
2. In exchange for the promise of payment provided for in paragraph
one, LSU, on its own behalf and on behalf of its predecessors, owners, officers,
directors, employees, attorneys, agents, successors and assigns releases Ergo
and its predecessors, successors, present and former parent corporations,
owners, officers, directors, employees, attorneys, agents, partners, heirs,
executors, administrators, licensees, assigns, parents, subsidiaries and
affiliates (collectively, the "Ergo Released Parties") from any and all claims,
demands, suits in law or equity, judgments, causes of action and damages of
whatever kind or nature, that are known or should have been known as of the date
of this Agreement, which LSU now owns or holds, or has at any time previously
owned or held against any of the Ergo Released Parties, including but not
limited to all claims arising out of or relating to (1) the February 20, 1998
Joint Collaboration and License Agreement between Ergo and The X.X. Xxxxxxx
Pharmaceutical Research Institute, (2) the February 23, 1998 Stock Purchase
Agreement between Ergo Science Corporation and Xxxxxxx & Xxxxxxx Development
Corporation, or (3) the royalty allegedly due to LSU under those agreements. It
is further understood that LSU may not bring any action on any claim being
released hereby against any of the Ergo Released Parties at any time in the
future regardless of what might later take place or later occur.
3. Ergo, on its own behalf and on behalf of its predecessors, owners,
officers, directors, employees, attorneys, agents, successors and assigns
releases LSU and its predecessors, successors, present and former parent
corporations, owners, officers, directors, employees, attorneys, agents,
partners, heirs, executors, administrators, licensees, assigns, parents,
subsidiaries and affiliates (collectively, the "LSU Released Parties") from any
and all claims, demands, suits in law or equity, judgments, causes of action and
damages of whatever kind or nature, that are known or should have been known as
of the date of this Agreement, which Ergo now owns or holds, or has at any time
previously owned or held against any of the LSU Released Parties, including but
not limited to all claims arising out of or relating to (1) the February 20,
1998 Joint Collaboration and License Agreement between Ergo and The X.X. Xxxxxxx
Pharmaceutical Research Institute, (2) the February 23, 1998 Stock Purchase
Agreement between Ergo Science Corporation and Xxxxxxx & Xxxxxxx Development
Corporation, or (3) the royalty allegedly due to LSU under those agreements. It
is further
understood that Ergo may not bring any action on any claim being released hereby
against any of the LSU Released Parties at any time in the future regardless of
what might later take place or later occur.
4. The Parties expressly represent, covenant and warrant that each has
full authority to release any and all claims released pursuant to this
Agreement.
5. LSU hereby represents, covenants, warrants and agrees that: (1) it
has not assigned, pledged, or otherwise divested or encumbered all or any part
of the claims, including but not limited to the Action, being released hereby;
(2) no other person or entity has any interest in or ownership of the Action or
the claims covered by this release; and (3) it will indemnify, defend, and hold
the Ergo Released Parties harmless from and against any claim being released
hereby so assigned, pledged, divested or encumbered which is brought against any
of the Ergo Released Parties. LSU agrees that it will not file a complaint or
petition or commence a proceeding of any kind in any forum against any of the
Ergo Released Parties arising out of or relating to the Action or the claims
being released hereby.
6. Ergo hereby represents, covenants, warrants and agrees that: (1) it
has not assigned, pledged, or otherwise divested or encumbered all or any part
of the claims, including but not limited to the Action, being released hereby;
(2) no other person or entity has any interest in or ownership of the Action or
the claims covered by this release; and (3) it will indemnify, defend, and hold
the LSU Released Parties harmless from and against any claim being released
hereby so assigned, pledged, divested or encumbered which is brought against any
of the LSU Released Parties. Ergo agrees that it will not file a complaint or
petition or commence a proceeding of any kind in any forum against any of the
LSU Released Parties arising out of or relating to the Action or the claims
being released hereby.
7. Neither party to this Agreement may assign or transfer all or any
part of this Agreement without the advance written consent of the other Party.
Subject to the foregoing, this Agreement shall be binding upon and shall inure
to the benefit of the Parties, the Ergo Released Parties, and the LSU Released
Parties.
8. This Agreement shall constitute the entire agreement of the Parties
with respect to the subject matter contained herein, and it supersedes all prior
or contemporaneous agreements, understandings, and representations on the
subject matter hereof. Each Party further declares and represents that no
promises, inducements, or agreements not herein expressed have been made to the
Parties with respect to the subject matter of this Agreement. Each Party further
declares and represents that (1) this Agreement has been entered into
voluntarily, (2) it has read this Agreement in full, (3) its ramifications of
this Agreement have been explained fully to the Party by its counsel, and (4) it
is understood and agreed that the terms of this Agreement are contractual and
not a mere recital.
9. The Parties mutually agree to join in or execute any instrument or
to perform any act necessary or proper to carry into effect any part or intent
of this Agreement, including the execution and delivery of any other reasonably
necessary document or other future assurance.
10. It is understood and agreed that this Agreement is a compromise of
claims, and that the payments made are not to be construed as an admission of
liability on the part of the Parties released. Moreover, this Agreement shall
not be construed as or deemed to be evidence of any admission or concession of
fault, error, omission, or other ground for liability on the part of any Party,
and all Parties specifically deny any fault, error, omission or other ground for
liability.
11. The Agreement shall not be modified or waived orally or by
accession of any of the Parties and may only be modified or waived by a writing
signed by both Parties.
12. A facsimile signature will be as valid as an original signature for
all purposes relevant to this Agreement.
13. This Agreement may be executed in counterparts which, taken
together, shall constitute one and the same agreement.
14. The Parties agree that the "Dispute Resolution" provision in
Article XVI(E) of the Novated License and Royalty Agreement will govern all
disputes regarding this Agreement, and that the "Dispute Resolution" provision
shall apply as if set forth fully herein.
15. Notwithstanding Paragraph 14, the Parties agree that Judge Xxxxx
shall retain jurisdiction over the Action until Ergo makes the payment provided
in Paragraph 1 for purposes of enforcing this Agreement. Upon payment by Ergo as
provided in Paragraph 1, LSU shall dismiss the Action with prejudice.
IN WITNESS WHEREOF, the parties have duly executed this release.
DATED this 6th day of October, 2000.
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Board of Supervisors of Louisiana State University and
Agricultural and Mechanical College
BY: /s/ Xxxx Xxxx
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TITLE: Director
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Ergo Research Corporation
Ergo Science Corporation
Ergo Science Holdings, Inc.
BY: /s/ Xxxxx X. Xxxx
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TITLE: President
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