EXHIBIT 10.29
CONFIDENTIAL SETTLEMENT AGREEMENT AND MUTUAL RELEASE
THIS CONFIDENTIAL SETTLEMENT AGREEMENT AND MUTUAL RELEASE (the "Settlement
Agreement") is entered into this November 17, 2005 (the "Effective Date") by and
between Advanced BioPhotonics Inc., having its principal office at 000 Xxxxxx
Xxxxx, Xxxxx 000, Xxxxxxx, Xxx Xxxx (the "Company") and Trilogy Capital
Partners, Inc., having its principal office at 00000 Xxx Xxxxxxx, Xxxxx 000, Xxx
Xxxxxxx, Xxxxxxxxxx ("Trilogy").
I. RECITALS
A. WHEREAS, on or about June 22, 2005, the Company entered into a Confidential
Non-Disclosure and Non-Circumvention Agreement with Trilogy (the "CNA");
B. WHEREAS, on or about July 14, 2005, the Company entered into a Consulting
Agreement with Trilogy (the "CA");
C. WHEREAS, on or about July 25, 2005, the Company entered into a Finder's Fee
Agreement (the "FFA") with Trilogy;
D. WHEREAS, on or about September 14, 2005, the Company entered into a Letter of
Engagement with Trilogy (the "XXX");
E. WHEREAS, on or about September 14, 2005, pursuant to the XXX the Company
issued Two Million Four Hundred Thousand (2,400,000) warrants to Trilogy (the
"Warrants");
F. WHEREAS, on November 14, 2005, the Company entered into a Securities Purchase
Agreement with The NIR Group securing Four Million Dollars ($4,000,000) in
financing in the form of an 8% Callable Secured Convertible Note (the "NIR
Financing"); and
G. WHEREAS, the parties desire to terminate the XXX, the CNA, the FFA, the CA
and the Warrants, to settle, pursuant to the terms and conditions set forth
herein below, all claims between them in any way related to the CNA, the FFA,
the XXX, the CA or issuance of the Warrants, the relationship between the
parties, any claim to commissions, finder's fees or other monetary consideration
and wish to terminate any relationship which may have existed between the
parties.
II. AGREEMENT
NOW, THEREFORE, the parties mutually agree as follows:
1. Consideration. The Company shall:
A. Execute and deliver a check made payable to Trilogy Capital Partners,
Inc. representing three percent (3%) of the gross proceeds of the NIR Financing,
payable in installments, as the funds are transferred to the Company;
B. Execute and deliver to Trilogy a signed original of this Settlement
Agreement;
C. Accept return by Trilogy of the Warrants;
D. Concurrently with its execution of this Settlement Agreement, pay to
Trilogy: (i) $1,664.04 to reimburse Trilogy for third party marketing costs
advanced by Trilogy pursuant to the XXX; and (ii) $6,250 for fees under the XXX
from the period October 14, 2005 through November 1, 2005; and
E. Agree to the termination of all prior agreements and understandings
between Trilogy and the Company, pursuant to Section 4 of this Settlement
Agreement.
2. Consideration. Trilogy shall:
A. Execute and deliver to the Company a signed original of this Settlement
Agreement;
B. Accept the aforementioned payment in Section 1.A as the sole monetary
consideration for the execution of this Settlement Agreement and the release
herein, such payment shall be in accordance to the terms set forth in Section
1.A;
C. Return and relinquish all right, title and interest to the Warrants;
and
D. Agree to the termination of all prior agreements and understandings
between Trilogy and the Company, pursuant to Section 4 of this Settlement
Agreement.
3. Mutual Release of Claims.
A. Conditioned upon receipt of the consideration set forth in Section 1
hereof, Trilogy, on behalf of itself and on behalf of its affiliates,
subsidiaries, officers, directors, agents, representatives, successors and
assigns, hereby releases and forever discharges the Company and its past and
present affiliates, subsidiaries, officers, directors, agents, successors and
assigns (the "Trilogy Released Parties"), from any and all claims, demands,
obligations, losses, causes of action, costs, expenses, attorneys' fees and
liabilities of any nature whatsoever, whether based on contract, tort, statutory
or other legal or equitable theory of recovery, whether known or unknown, which
Trilogy has, had or claims to have against any or all of the Trilogy Released
Parties, including but not limited to any and all claims which relate to, arise
from, or are in any manner connected to: (i) the FFA; (ii) the XXX; (iii) the
Warrants; (iv) the CNA; (v) the CA; or (vi) any claimed commissions, finder's
fees or other monetary consideration, whether accrued or not.
B. Conditioned upon return of the Warrants as set forth in Section 2
hereof and the termination of all prior agreements and understandings as set
forth in Section 4 hereof, the Company, on behalf of itself and its affiliates,
subsidiaries, officers, directors, agents, representatives, successors and
assigns, hereby releases and forever discharges Trilogy and its past and present
affiliates, subsidiaries, officers, directors, agents, successors and assigns
(the "Company Released Parties"), from any and all claims, demands, obligations,
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losses, causes of action, costs, expenses, attorneys' fees and liabilities of
any nature whatsoever, whether based on contract, tort, statutory or other legal
or equitable theory of recovery, whether known or unknown, which the Company
has, had, or claims to have against Trilogy, including but not limited to any
and all claims which relate to, arise from, or are in any manner connected to:
(i) the FFA; (ii) the XXX; (iii) the Warrants; (iv) the CNA; (v) the CA; or (vi)
any claimed commissions, finder's fees or other monetary consideration, whether
accrued or not.
4. Termination of Agreements. The parties hereto agree and confirm that,
except for this Settlement Agreement, any and all agreements and understandings,
written or oral, including but not limited to the CNA, the FFA, the XXX, the CA,
and the Warrants and the terms, conditions and obligations thereunder, are
hereby terminated and are of no further force and effect. All parties hereto
agree that all of the terms, conditions and obligations, including those that
are expressly agreed to survive termination in each of the agreements or
understandings, will in fact be terminated, and that this Settlement Agreement
supersedes any and all of the terms of the aforementioned agreements and
understandings. The parties expressly agree that the Fee Period as defined in
the FFA shall terminate as of the Effective Date of this Settlement Agreement
and Trilogy acknowledges that it is not entitled to any finder's fee based on
any past, present or future introduction which, this Settlement Agreement
notwithstanding, would have been a Qualified Introduction, as that term was
defined in the FFA. The parties expressly release each other from any continuing
rights, duties and/or obligations under any agreements and Trilogy, together
with its agents and representatives, shall make no further claim for any
compensation.
5. Waiver of California Civil Code ss.1542 and New York counterpart, if any.
Each party knowingly and intentionally waives any protection afforded to them by
California Civil Code ss.1542 with respect to the release under Section 3 of
this Settlement Agreement, which provides:
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.
Each party further waives any protection under any New York counterpart to
California Civil Code ss.1542. Each party agrees that this Settlement Agreement
is intended to cover all claims or possible claims arising out of or related to
those matters referenced or impliedly covered in the general release referenced
above, whether the same are known, unknown or hereafter discovered or
ascertained, and the provisions of ss.1542 of the California Civil Code and the
New York counterpart (if any) are hereby expressly waived. The parties hereto
expressly acknowledge that they have been advised by their counsel of the
contents and effect of such provisions, and with such knowledge they hereby
expressly waive whatever benefits they may have pursuant to such provisions.
6. Covenant Not to Xxx. Each party covenants and agrees that it will not, at
any time hereafter, either directly or indirectly, initiate, assign, maintain or
prosecute, or in any way knowingly aid or assist in the initiation, maintenance
or prosecution of any claim, demand or cause of action at law or otherwise,
against the other party, its affiliates, officers or directors, for damages,
loss or injury of any kind arising from, related to, or in any way connected to
any activity with respect to which a release has been given pursuant to Section
3 of this Settlement Agreement.
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7. Proprietary Information Obligations. Both parties will refrain from any
use or disclosure of the other party's proprietary or confidential information
or materials, unless such use is authorized in writing by an appropriate officer
of the disclosing party.
8. Confidentiality. The provisions of this Settlement Agreement will be held
in strictest confidence by Trilogy and the Company and will not be publicized or
disclosed in any manner whatsoever; provided, however, that: (a) the parties may
disclose this Settlement Agreement in confidence to their respective attorneys,
accountants, auditors, tax preparers, and financial advisors; (b) the Company
may disclose this Settlement Agreement as necessary to fulfill standard or
legally required corporate reporting or disclosure requirements; and (c) the
parties may disclose this Settlement Agreement insofar as such disclosure may be
necessary to enforce its terms or as otherwise required by law.
9. Nondisparagement. The Company agrees not to disparage Trilogy or Trilogy's
officers, directors, employees, shareholders and agents, and Trilogy agrees not
to disparage the Company or the Company's officers, directors, employees,
shareholders and agents, in any manner likely to be harmful to the Parties or
their businesses, business reputations or personal reputations; provided that
Trilogy and the Company may respond accurately and fully to any question,
inquiry or request for information when required by legal process.
10. Return of Company Property. Within five (5) days after the Effective Date,
Trilogy agrees to return to the Company all Company documents (and all copies
thereof) and other Company property that Trilogy has had in its possession at
any time, including, but not limited to, Company files, notes, drawings,
records, business plans and forecasts, financial information, specifications,
computer-recorded information, and any materials of any kind that contain or
embody any proprietary or confidential information of the Company (and all
reproductions thereof), together with any derivative documents created by
Trilogy, its subcontractors or affiliates; provided that Trilogy may retain one
copy of any and all such documents that it prepared, reviewed or utilized in the
performance of its services under the XXX, provided that Trilogy shall keep all
such documents confidential to the extent that they contain confidential or
proprietary information of the Company.
11. Agreement Not an Admission of Liability. The parties hereto agree and
acknowledge that this Settlement Agreement is a compromise settlement of each
party's disputed claims, and that the sums and covenants given in consideration
of this Settlement Agreement, as well as the execution of this Settlement
Agreement, shall not be construed to be an admission of liability on the part of
any party with respect to the disputed matters set forth above.
12. Entire Agreement. This Settlement Agreement represents and contains the
entire agreement and understanding between the parties hereto and supersedes any
and all prior oral and written agreements and understandings. No representation,
warranty, condition, understanding or agreement of any kind with respect to the
subject matter hereof, shall be relied upon by the parties except those
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contained herein. This Settlement Agreement may not be amended or modified
except by an agreement signed by the party against whom enforcement of any
modification or amendment is sought.
13. Advice of Counsel. In entering into this Settlement Agreement, the parties
each acknowledge and represent that they have sought and obtained the legal
advice of their attorneys, who are the attorneys of their own choice. They
further represent that the terms of this Settlement Agreement have been
completely read by them, and that those terms are fully understood and
voluntarily accepted by them.
14. Counterparts. This Settlement Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, and all of which
together shall be deemed one and the same instrument.
15. No Assignment. The parties each represent and warrant to one another that
they have not sold, assigned, transferred, conveyed or otherwise disposed of any
claim or demand covered by this Settlement Agreement. Trilogy expressly
represents and warrants that it has not pledged, encumbered, sold, assigned,
transferred, conveyed or otherwise disposed of any of the Warrants.
16. Heirs, Successors and Assigns. This Settlement Agreement shall be binding
upon and inure to the benefit of the parties' respective legal heirs, successors
and assigns.
17. Severability. Should any portion (word, clause, phrase, sentence,
paragraph or section) of this Settlement Agreement be declared void or
unenforceable, such portion shall be considered independent and severable from
the remainder, the validity of which shall remain unaffected.
19. Attorneys Fees. If any action or proceeding is brought to enforce or
interpret any provision of this Settlement Agreement, the prevailing party shall
be entitled to recover as an element of its costs, and not its damages,
reasonable attorneys' fees to be fixed by the court. The prevailing party is the
party who is entitled to recover the costs of its action or proceeding, whether
or not such action or proceeding proceeds to final judgment. A party not
entitled to recover its costs of suit may not recover attorneys' fees. No sum
for attorneys' fees shall be counted in calculating the amount of a judgment for
purposes of determining whether a party is entitled to recover its costs or
attorneys' fees.
20. Judicial Interpretation. Should any provision of this Agreement or any of
the representations made herein require judicial interpretation, it is agreed
that a court interpreting or construing the same shall not apply a presumption
that the terms hereof or thereof shall be more strictly construed against any
person by reason of the rule of construction that a document is to be construed
more strictly against the person who itself or through its agent prepared the
same, it being agreed that all parties have participated in the preparation of
this Agreement.
21. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to its choice
of law provisions and any applicable laws of the United States.
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IN WITNESS WHEREOF, the parties have executed this Settlement Agreement by
their duly authorized representatives, to be effective as of the date first
written above.
TRILOGY CAPITAL PARTNERS, INC. ADVANCED BIOPHOTONICS INC.
By: /s/Xxxx Xxxxx By: /s/Xxxxx X. X'Xxxxxx
-------------------------- -------------------------
Name: Xxxx Xxxxx Name: Xxxxx X. X'Xxxxxx
Title: President Title: President and CEO
