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EXHIBIT 10.2
SETTLEMENT AND RELEASE AGREEMENT
THIS SETTLEMENT AND RELEASE AGREEMENT (the "Agreement") is made and
entered into as of April 18, 2001, by and among PerkinElmer, Inc., a
Massachusetts corporation, ("PerkinElmer") and each of the members of the Board
of Directors of Genomic Solutions Inc., a Delaware corporation (the
"Corporation"), Xxxxxxx X. Xxxxxxxx, Xxxxxx X. Xxxxxxx, J. Xxxxxxx Xxxxxxxxx,
Xxxxxx X. Xxxxxxxx, Xx. Xxxxxx X. Xxxxxx and P. Xxxxxxxx Xxxx (collectively, the
"Directors").
RECITALS
A. PerkinElmer has asserted claims against the Corporation and the
Directors in the lawsuit captioned Civil Action No. 18671 filed in the Court of
Chancery in the State of Delaware on February 12, 2001 (the "Lawsuit").
B. Simultaneously with the execution and delivery of this Agreement,
PerkinElmer and the Corporation are entering into a settlement, release and
stock purchase agreement (the "Settlement Agreement") whereby PerkinElmer and
the Corporation intend to, and do, fully resolve, settle, and compromise the
Lawsuit and any and all claims, suits, actions or demands that PerkinElmer may
have against the Corporation or any of the members of the Board of Directors of
the Corporation and that the Corporation may have against PerkinElmer as of the
date of this Agreement.
C. By this Agreement, PerkinElmer and each of the Directors intend to,
and do, fully resolve, settle, and compromise the Lawsuit and any and all
claims, suits, actions or demands that PerkinElmer may have against the
Directors and that the Directors may have against PerkinElmer as of the date of
this Agreement.
COVENANTS AND AGREEMENTS
NOW, THEREFORE, in reliance on the respective representations and
warranties set forth below and for and in consideration of the foregoing
Recitals, the mutual covenants and agreements set forth below and other good and
valuable consideration, the receipt and adequacy of which are acknowledged,
PerkinElmer and each of the Directors, severally and not jointly, agree as
follows:
1. RELEASES.
(a) PerkinElmer and its successors, assigns and legal
representatives, hereby waive, release, discharge, settle and
acquit the Directors and their agents (collectively, the
"Director Affiliated Parties") from any debts, claims,
demands, causes of action, controversies, promises, agreements
or obligations of any kind, type or description whatsoever,
including the Lawsuit, which PerkinElmer has had, now has or
may in the future have as to the Director Affiliated Parties
as the result of each, any or all claims of any kind, type or
nature whatsoever, liquidated or
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unliquidated, mature or not matured, known, unknown or
unknowable which PerkinElmer has had, now has or may in the
future have against the Director Affiliated Parties as a
result of or relating directly or indirectly to any matter,
act, omission, transaction or occurrence occurring on or prior
to the date of this Agreement.
(b) Each of the Directors and their successors, assigns and legal
representatives, hereby waive, release, discharge, settle and
acquit PerkinElmer and its officers, directors, employees and
agents (collectively, and together with PerkinElmer, the
"PerkinElmer Affiliated Parties") from any debts, claims,
demands, causes of action, controversies, promises, agreements
or obligations of any kind, type or description whatsoever,
which the Directors have had, now have or may in the future
have as to the PerkinElmer Affiliated Parties as the result of
each, any or all claims of any kind, type or nature
whatsoever, liquidated or unliquidated, mature or not matured,
known, unknown or unknowable which the Directors have had, now
have or may in the future have against PerkinElmer as a result
of or relating directly or indirectly to any matter, act,
omission, transaction or occurrence occurring on or prior to
the date of this Agreement.
(c) It is the intent of PerkinElmer and the Directors to make a
general release in favor of each other, except for the
enforcement of this Agreement, the Settlement Agreement and
for those agreements referenced in Section 7(a)-(d) of the
Settlement Agreement. Nothing contained herein shall be deemed
to limit the generality of the releases contained herein. It
is expressly understood and agreed to that it is the intent of
the Directors and PerkinElmer to enter into a full, complete
and mutual release.
2. MISCELLANEOUS PROVISIONS.
(a) The rights and remedies provided for in this Agreement to
ensure compliance with the terms and conditions of this
Agreement shall be cumulative, and shall be in addition to all
rights and remedies otherwise available to the parties to
ensure compliance with the terms and conditions of this
Agreement, whether such rights and remedies are provided for
under this Agreement, any other agreement or applicable law.
(b) Any notice, demand, request or other communication which is
permitted, required or desired to be given in connection with
this Agreement must be in writing and shall be deemed to be
duly given when (i) personally delivered, (ii) deposited in
the United States mail, certified or registered, return
receipt requested, postage prepaid, addressed to the parties
at the following addresses (or at such other address as shall
be given in writing to the parties to this Agreement or their
permitted successors or assigns), or (iii) faxed to the
parties at the following fax numbers (or at such other fax
numbers as shall be given in writing to the parties to this
Agreement or their permitted successors or assigns), with a
hard copy to follow in the manner contemplated in either
clause (i) or (ii) above, as follows:
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Directors:
See Exhibit A attached hereto
With a copy to:
Jaffe, Raitt, Heuer & Xxxxx, P.C.
Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Fax: (000) 000-0000
Attention: Xxxxx Sugar, Esq.
If to PerkinElmer:
PerkinElmer, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxxx Xxxxxxx
With a copy to:
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxx, Esq.
(c) No waiver of any breach of any agreement or provision in this
Agreement shall be deemed a waiver of any preceding or
succeeding breach of this Agreement or of any other agreement
or provision contained in this Agreement. No extension of time
for performance of any obligation or act shall be deemed an
extension of time for performance of any other obligation or
act.
(d) This Agreement shall be binding upon and inure to the benefit
of the parties to this Agreement and their respective heirs,
representatives, successors and permitted assigns.
(e) If any party commences an action against any other party to
enforce any of the terms, covenants, conditions or provisions
of this Agreement, the prevailing party in any such action
shall be entitled to recover his or its reasonable attorneys'
fees,
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costs and expenses incurred in connection with the prosecution
or defense of such action from the losing party.
(g) This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Delaware
without regard to conflicts of law principles thereof. Each of
the parties hereto (i) consents to submit itself to the
personal jurisdiction of any federal court located in the
State of Delaware or any Delaware state court in the event any
dispute arises out of this Agreement, (ii) agrees that it will
not attempt to deny or defeat such personal jurisdiction by
motion or other request for leave from any such court and
(iii) agrees that it will not bring any action relating to
this Agreement in any court other than a federal court sitting
in the State of Delaware or a Delaware state court.
(h) The language used in this Agreement will be deemed to be the
language chosen by the parties hereto to express their intent,
and no rule of strict construction shall be applied against
any party. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all
rules and regulations promulgated thereunder, unless the
context otherwise requires.
(i) This Agreement may be executed in one or more counterparts,
each of which will be deemed an original, but all of which
together will constitute one and the same instrument. Copies
(photostatic, facsimile or otherwise) of signatures to this
Agreement shall be deemed to be originals and may be relied on
to the same extent as the originals.
(j) The headings in this Agreement are for reference purposes only
and will not in any way affect the meaning or interpretation
of this Agreement.
(k) Each party to this Agreement shall be responsible for any
expenses incurred by it in connection with the negotiation and
performance of this Agreement, including legal and accounting
fees.
(l) PerkinElmer shall promptly execute and file with the Chancery
Court all necessary documents to dismiss the Lawsuit with
prejudice and without costs to either PerkinElmer, the
Directors or the Corporation.
(m) Both PerkinElmer and each of the Directors have the full legal
right, power and authority to enter into this Agreement, and
this Agreement is a valid and binding obligation of
PerkinElmer and each of the Directors enforceable in
accordance with its terms.
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IN WITNESS WHEREOF, the parties have executed this Settlement and
Release Agreement as of the date first written above.
PERKINELMER, INC.
By: /s/ Xxxxxxxx Xxxxxxx
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Xxxxxxxx Xxxxxxx
Its: Senior Vice President
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DIRECTORS
/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
/s/ J. Xxxxxxx Xxxxxxxxx
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J. Xxxxxxx Xxxxxxxxx
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
/s/ Xx. Xxxxxx X. Xxxxxx
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Xx. Xxxxxx X. Xxxxxx
/s/ P. Xxxxxxxx Xxxx
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P. Xxxxxxxx Xxxx
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Exhibit A
Xxxxxxx X. Xxxxxxxx Genomic Solutions Inc.
0000 Xxxxxxx Xxxxx Xxxxx X
Xxx Xxxxx XX 00000
000.000.0000 fax
Xxxxxx X. Xxxxxxx Xxxxxxxxx & Xxxxxxx
000 Xxxx Xxxxxx Xxxxx 000
Xxx Xxxxxxxxx XX 00000-0000
000.000.0000 fax
J. Xxxxxxx Xxxxxxxxx Xxxxxxxxx & Xxxxxxx
000 Xxxx Xxxxxx Xxxxx 000
Xxx Xxxxxxxxx XX 00000-0000
000.000.0000 fax
Xxxxxx X. Xxxxxxxx Sequel Venture Partners
0000 Xxxxxxxx Xxxxx 000
Xxxxxxx XX 00000
000.000.0000 fax
Xx. Xxxxxx Xxxxxx XX Xxxxxx Partners
000 Xxxxxxx Xxx 00xx Xxxxx
Xxx Xxxx XX 00000
000.000.0000 fax
P. Xxxxxxxx Xxxx Homestead, 2 Church Rd
Glatton Xxxxxxxxxx
Xxxxxxxxxxxxxx XX00 0XX
Xxxxxx Xxxxxxx
00.0000.000000 fax
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