WAIVER, CONSENT AND RELEASE AGREEMENT Ex 10-45
This WAIVER, CONSENT AND RELEASE AGREEMENT (this "Agreement") is made and
entered into as of June 1, 2005, by and between PATRIOT SCIENTIFIC CORPORATION,
a Delaware corporation, (the "COMPANY"), and Xxxxxx Xxxxxxxx, an individual
residing in San Diego County, California (the "Rights Holder").
RECITALS
A. WHEREAS, the Rights Holder holds warrants to purchase shares of the
common stock, $0.00001 par value per share, of the COMPANY (the "Warrants"),
purchased pursuant to that certain Securities Purchase Agreement, dated as of
November 16, 2004, by and among the COMPANY and the RIGHTS HOLDER (the
"Securities Purchase Agreement").
B. WHEREAS, the COMPANY desires to enter into the transactions
contemplated by that certain Master Agreement dated as of the date hereof, by
and among the COMPANY, Technology Properties Limited, Inc., a California
corporation ("TPL") and Xxxxxxx X. Xxxxx (such transactions referred to herein
as the "Proposed Transactions").
C. WHEREAS, the Securities Purchase Agreement and the Warrants include
provisions which may be implicated by the Proposed Transactions, and which may
give the Rights Holder certain rights with respect to the Proposed Transactions.
D. WHEREAS, the COMPANY and the Rights Holder desire to facilitate the
Proposed Transactions by entering into this Agreement.
NOW, THEREFORE, in consideration of the respective promises,
representations, warranties, covenants and conditions contained in this
Agreement, the parties hereby agree as follows:
1. Consent. Effective upon the receipt by the Rights Holder of the consideration
pursuant to Section 2 of this Agreement, the Rights Holder hereby consents to,
approves and ratifies the Proposed Transactions and any and all actions taken
before, as of, or after the date hereof by the COMPANY (and any person acting
for or on behalf of the COMPANY) in connection with the Proposed Transactions.
2. Payment to Rights Holder. In consideration of his covenants, promises, and
agreements set forth in this Agreement, the Rights Holder shall be paid $96,000
by check to the address below upon the closing of the Proposed Transactions. The
Rights Holder hereby acknowledges that such consideration constitutes good,
valid and sufficient consideration in exchange for the covenants, promises, and
agreements of the Rights Holder set forth in this Agreement..
3. Amendment of Securities Purchase Agreement. Effective as of the receipt of
consideration pursuant to Section 2 of this Agreement, the Securities Purchase
Agreement shall be amended to remove Section 4(l) in its entirety, and such
section shall be of no further force or effect. The COMPANY and the Rights
Holder hereby acknowledge and agree that this Agreement meets all of the
requirements for amendment of the Securities Purchase Agreement provided in
Section 8(e) thereof.
4. Representations and Warranties of Rights Holder. In order to induce the
COMPANY to enter into this Agreement, the Rights Holder represents and warrants
to the COMPANY as follows:
4.1 Full Knowledge. The Rights Holder acknowledges and agrees that he is
fully aware of all of the terms and conditions of the Proposed Transactions, and
that he has had an opportunity to discuss such terms and conditions with COMPANY
representatives, and to ask any questions he has deemed necessary.
4.2 Compliance with Law. The execution, delivery and performance by the
Rights Holder of this Agreement and the consummation of the transactions
contemplated hereby, will not cause the Rights Holder to violate or contravene
(i) any provision of law, (ii) any rule or regulation of any agency or
government, or (iii) any order, writ, judgment, injunction, decree,
determination or award, to which he is subject.
4.3 Authorization. When executed and delivered by the Rights Holder, this
Agreement will constitute a valid and legally binding obligation of the Rights
Holder enforceable in accordance with its terms, except as may be limited by (i)
judicial principles respecting election of remedies or limiting the availability
of specific performance, injunctive relief and other equitable remedies, (ii)
judicial principles with respect to provisions contrary to public policy, and
(iii) bankruptcy, insolvency, reorganization, moratorium or other similar laws,
now or hereafter in effect, generally relating to creditors' rights.
5. Representations and Warranties of COMPANY. In order to induce the Rights
Holder to enter into this Agreement, COMPANY represents and warrants to the
RightsHolder as follows:
5.1 Compliance with Law. The execution, delivery and performance by
COMPANY of this Agreement and the consummation of the transactions contemplated
hereby, will not cause COMPANY to violate or contravene (i) any provision of
law, (ii) any rule or regulation of any agency or government, or (iii) any
order, writ, judgment, injunction, decree, determination or award, to which it
is subject.
5.2 Authorization. When executed and delivered by COMPANY, this Agreement
will constitute a valid and legally binding obligation of COMPANY enforceable in
accordance with its terms, except as may be limited by (i) judicial principles
respecting election of remedies or limiting the availability of specific
performance, injunctive relief and other equitable remedies, (ii) judicial
principles with respect to provisions contrary to public policy, and (iii)
bankruptcy, insolvency, reorganization, moratorium or other similar laws, now or
hereafter in effect, generally relating to creditors' rights.
6. Taxes. Each party shall be responsible for all taxes incurred by it as a
result of any transaction contemplated by this Agreement.
7. Cooperation. COMPANY and Rights Holder acknowledge that it may be necessary
to execute documents other than those specifically referred to herein in order
to consummate the transactions contemplated herein. COMPANY and Rights Holder
agree to cooperate with each other by executing such other documents and taking
such other action as may be reasonably necessary to complete the transactions in
accordance with the intent of the parties as evidenced in this Agreement.
2
8. General Provisions.
8.1 Survival of Representations and Warranties. All representations and
warranties of the parties made in, pursuant to or in connection with this
Agreement shall survive the execution and delivery of this Agreement.
8.2 Severability. Should any one or more of the provisions of this
Agreement or of any agreement entered into pursuant to this Agreement be
determined to be illegal or unenforceable, then such illegal or unenforceable
provision shall be modified by the proper court only to the extent necessary and
possible to make such provision enforceable, and such modified provision and all
other provisions of this Agreement and of each other agreement entered into
pursuant to this Agreement shall be given effect separately from the provision
or portion thereof determined to be illegal or unenforceable and shall not be
affected thereby.
8.3 Entire Agreement. With reference to the subject matter hereof, this
Agreement is the complete and exclusive statement of all terms of the agreement
between the parties and supersedes and cancels all prior and contemporaneous
negotiations, agreements and representations, and constitutes the entire
agreement between the parties. There are no representations, inducements,
promises or agreements, oral or otherwise, with reference to the subject matter
hereof, other than as expressly set forth herein. No modification, alteration,
amendment or waiver of any provision hereof shall be effective unless in writing
and signed by both parties.
8.4 Successors Bound; Limited Assignment. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permissible assigns, except that neither party shall, without
prior written consent of the other, delegate, assign, transfer, encumber or
otherwise dispose of any of its rights, duties or interests under this Agreement
or any part thereof.
8.5 Headings. The headings of the sections and paragraphs of this
Agreement have been inserted for convenience of reference only and do not
constitute a part of this Agreement.
8.6 Governing Law. It is the intention of the parties that the laws of
California, including such jurisdiction's principles of conflict of law, shall
govern the validity of this Agreement, the construction of its terms and the
interpretation of the rights and duties of the parties, as such laws are applied
to agreements between California residents entered into and to be performed
entirely within California.
8.7 Forum; Expenses. In the event that any cause of action, lawsuit or
other proceeding is brought by any party of this Agreement because of an alleged
dispute, breach or misrepresentation in connection with or arising under this
Agreement, any court of competent jurisdiction in San Diego County shall be the
sole and exclusive forum for such cause of action, lawsuit or proceeding, and
the prevailing party in any such action, lawsuit or proceeding shall be entitled
to recover, in addition to any remedy at law or equity available to any
prevailing party, all reasonable costs and expenses incurred or sustained by
such prevailing party in connection with such action, lawsuit or proceeding,
including, without limitation, attorneys' fees and court costs.
3
Counterparts. This Agreement may be executed in two or more counterparts and by
the different parties hereto in separate counterparts with the same effect as if
all parties had signed the same document. All such counterparts shall be deemed
an original, shall be construed together and shall constitute one and the same
instrument.
4
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the
day and year first written above.
PATRIOT SCIENTIFIC CORPORATION RIGHTS HOLDER
By:
--------------------------- ------------------------------
Name: Name:
------------------------ ------------------------
Title:
-----------------------
