Exhibit 10.4
SETTLEMENT AGREEMENT
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This Settlement Agreement (this "Agreement") is entered into this ____
day of December, 2003, by and between Univec, Inc., a Delaware corporation
with principal offices at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Univec") and Syrinter, Ltd. a corporation with their
representative offices located at ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, P.O. Box ▇▇. ▇▇, ▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ("Syrinter").
RECITALS:
WHEREAS, Syrinter loaned to Univec an amount equal to $96,692.00 as
evidenced by the Promissory Note dated July 16, 2003, by and between Syrinter
and Univec (the "Note"); and
WHEREAS, to secure the payment and performance of the Note, Univec
granted to Syrinter a security interest in certain of its collateral as
evidenced by the Security Agreement, dated July 16, 2003, between Syrinter and
Univec (the "Security Agreement"). The Note and the Security Agreement are
hereinafter collectively referred to as the "Loan Documents;" and
WHEREAS, Univec failed to make payment on the Note in accordance with
the terms and provisions provided in the Note; and
WHEREAS, on July 16, 2003, Univec filed an affidavit of Confession of
Judgment with the Supreme Court of the State of New York, County of Suffolk (the
"New York Supreme Court") for which Univec confessed judgment in favor of
Syrinter in the sum of $96,692.00, together with interest thereon at the rate of
10% per annum as of July 16, 2003, and authorized Syrinter to collect and
retrieve all collateral secured by the Security Agreement in the event that
Univec is unable to pay the full amount of the Note, plus interest; and
WHEREAS, on October 21, 2003, a judgment was entered by the New York
Supreme Court for Syrinter ordering Univec to pay to Syrinter the sum of
$96,692.00 pursuant to the Note, together with interest thereon of $2,526.55,
and costs and disbursements of $225.00, totaling $99,433.55 (the "New York
Judgment"); and
WHEREAS, on November 7, 2003, a judgment was entered by the Circuit
Court for the City of Baltimore in the State of Maryland for Syrinter ordering
Univec to pay to Syrinter the sum of $96,692.00 pursuant to the Note, together
with interest thereon of $2,526.55, and costs and disbursements of $225.00,
totaling $99,433.55 (the "Maryland Judgment," and together with the New York
Judgment, the "Judgments")
WHEREAS, Univec was unable to pay the Judgments; and
WHEREAS, on October 23, 2003, Syrinter delivered to Univec its proposal
pursuant to Section 9-505(2) of the Uniform Commercial Code to retain the
Collateral (as defined in the Security Agreement) in full satisfaction of the
Note and all interest accrued or at any time accruing thereon (the "Proposal");
and
WHEREAS, Univec failed to respond to the Proposal; and
WHEREAS, as a result of Univec's failure to respond to the Proposal,
Syrinter has asserted that it has taken ownership of the Collateral in full
satisfaction of the Note and all interest accrued or at any time accruing
thereon; and
WHEREAS, Univec has disputed that Syrinter is the owner of the
Collateral; and
WHEREAS, the parties have reached a settlement of their dispute as set
forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements, covenants,
representations and warranties set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Transfer of Intellectual Property. Univec hereby abandons and
relinquishes any and all of its interest in and to the Intellectual Property set
forth on Schedule 1 hereto and made a part hereof (the "Intellectual Property"),
and hereby transfers and assigns the Intellectual Property to Syrinter, free and
clear of all liens, encumbrances, pledges, and claims of any kind, nature or
description. Univec agrees that hereafter, Univec shall cease to have any right,
title or interest in or to the Intellectual Property, and Syrinter shall own the
Intellectual Property and shall have all right, title and interest in and to
such Intellectual Property, provided, however, that Univec and Syrinter have
entered into a License Agreement as of the date hereof, which shall govern the
agreement between the parties with respect to subject matter thereof.
2. Satisfaction of Judgment. Upon Syrinter's receipt of the
Intellectual Property, Syrinter hereby acknowledges and agrees that the Note
shall be deemed forgiven, released and forever discharged, and each of the New
York Judgment and the Maryland Judgment deemed satisfied and complete. Syrinter
further agrees to promptly take such action, and execute and convey such further
documents, as may be necessary to cause the Judgments to be lifted.
3. Termination of the Note and Security Agreement. Upon Syrinter's
receipt of the Intellectual Property, Syrinter hereby acknowledges and agrees
that the Note and the Security Agreement and Univec's and Syrinter's respective
rights, remedies, obligations and liabilities thereunder, shall be deemed
cancelled and terminated, and of no further force or effect.
4. Equipment. Syrinter acknowledges and agrees that the equipment set
forth in Schedule 2 hereto and made a part hereof ("Equipment"), which
constituted part of the collateral described in the Security Agreement, is and
shall remain the property of Univec, and that Syrinter has no present right,
title or interest in or with respect to the Equipment and will not in the future
acquire any such right, title or interest therein.
5. Representations and Warranties of Univec.
(A) Univec represents and warrants to Syrinter that the execution of
this Agreement, the delivery by Univec to Syrinter of the Intellectual Property,
and Univec's performance hereof and the transactions contemplated hereby, have
been duly authorized by the requisite action on the part of Univec. This
Agreement constitutes the valid and binding obligation of Univec and is
enforceable against Univec in accordance with its terms, provisions, covenants
and conditions.
(B) Univec, on behalf of itself and its Subsidiaries, Affiliates and
Related Persons, hereby knowingly, voluntarily, intentionally, unconditionally
and irrevocably waives, releases, and forever discharges Syrinter and its
Subsidiaries, Affiliates and Related Persons (collectively, the "Syrinter
Parties"), from and against any and all rights, claims, counterclaims, actions
or causes of action against Syrinter and/or Syrinter Parties, arising out of
Syrinter's and/or Syrinter Parties' actions or inactions in connection with the
Loan Documents and the Judgments prior to the execution and delivery of this
Agreement, as well as any and all rights of set-off, defenses, claims, actions,
causes of action and any other bar to the enforcement of this Agreement.
6. Representations and Warranties of Syrinter.
(A) Syrinter represents and warrants to Univec that the execution of
this Agreement, Syrinter's performance hereof and the transactions contemplated
hereby, have been duly authorized by the requisite action on the part of
Syrinter. This Agreement constitutes the valid and binding obligation of
Syrinter and is enforceable against Syrinter in accordance with its terms,
provisions, covenants and conditions.
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(B) Syrinter, on behalf of itself and its Subsidiaries, Affiliates and
Related Persons, hereby knowingly, voluntarily, intentionally, unconditionally
and irrevocably waives, releases, and forever discharges Univec and its
Subsidiaries, Affiliates, and Related Persons (collectively, the "Univec
Parties"), from and against any and all rights, claims, counterclaims, actions
or causes of action against Univec and/or Univec Parties, arising out of
Univec's and/or Univec Parties' actions or inactions in connection with the Loan
Documents and the Judgments prior to the execution and delivery of this
Agreement, as well as any and all rights of set-off, defenses, claims, actions,
causes of action and any other bar to the enforcement of this Agreement.
7. Non-Disparagement; Public Announcements.
(A) Each party hereto and their respective Subsidiaries, Affiliates and
Related Persons, covenants and agrees that they shall not, directly or
indirectly, disclose, publish, disseminate or communicate in any way to any
third party any information that is critical, derogatory or is otherwise
intended to disparage the other party or any of their respective Subsidiaries,
Affiliates and Related Persons, whether such information has been acquired prior
to or after the date of this Agreement and whether or not in the public domain
or otherwise confidential.
(B) One party's failure to comply with the provisions of Subsection
7(A) shall nullify the other affected party's obligations under Subsection 7(A).
(C) Neither party to this Agreement and none of their respective
Subsidiaries, Affiliates and Related Persons, shall make any public
announcements regarding this Agreement, the subject matter hereof or any other
matter related to the other party hereto, and the parties further agree that the
content and/or wording of any press release or other public disclosure that
refers to the Agreement shall be mutually agreed to by and between the parties
in advance of its release, except as may otherwise be required of any party as a
public company under applicable law. Syrinter acknowledges and agrees that
Univec shall disclose this Agreement, the consummation of the transactions
contemplated by this Agreement and the effect(s) and possible effects, if any,
in the sole discretion of Univec in consultation with counsel, with the
Securities and Exchange Commission, including, without limitation, a Current
Report on Form 8-K, Quarterly Reports on Form 10-QSB and Annual Reports on Form
10-KSB, and shall include a copy of this Agreement as an exhibit to one or more
of such filings.
(D) Each party acknowledges that the result of any party's breach of
this Section 7 will likely cause irreparable harm to the non-breaching party.
Therefore, the parties agree that the non-breaching party shall be entitled,
without the necessity of posting a bond, to a decree or order by any court of
competent jurisdiction enjoining such threatened or actual violation of this
Section 7. Such decree or order, to the extent appropriate, shall specifically
enforce the full performance of this Section 7 by the breaching party and the
breaching party hereby consents to the jurisdiction of any such court of
competent jurisdiction. This remedy shall be in addition to all other remedies
available to the non-breaching party at law or equity.
8. Confidentiality. Each party hereto represents and warrants that
neither it, or any of their respective Subsidiaries, Affiliates and Related
Persons will (i) promote, instigate, encourage or otherwise assist in any claim,
proceeding or litigation against the other party, and (ii) discuss or disclose,
or authorize or allow their agents to discuss or disclose, directly or
indirectly, orally or in writing, spontaneously or in response to inquiry, to
any person, organization or entity, the terms of this Agreement or their
dealings with the other party in connection with the Loan Documents and the
Judgments, and to any claims or causes of action generally relating to or
arising from the business of either party or any of their respective Affiliates,
Subsidiaries or Related Persons. Nothing contained in this Agreement shall
prohibit or restrict either party from (i) responding to any inquiry about this
settlement or its underlying circumstances by their attorneys, tax advisors,
accountants or government tax authorities or pursuant to lawfully issued
subpoena or other legal process issued by any body or court of competent
jurisdiction or (ii) complying with the reporting requirements of the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder.
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9. Further Assurances. From time to time after the date hereof, upon
the reasonable request of any party hereto, the other party hereto shall execute
and deliver or cause to be executed and delivered such further instruments, and
take such further action, as the requesting party may reasonably request in
order to effectuate fully the purposes, terms and conditions hereof.
10. Governing Law. This Agreement and all matters related thereto shall
be construed and enforced in accordance with the laws of the State of New York
without reference to principles of conflicts of laws.
11. Entire Agreement. This Agreement constitutes the full and final
agreement among the parties hereto with respect to the subject matter hereof.
This Agreement may not be modified or amended except by a written instrument
signed by each of the parties hereto expressing such an amendment or
modification. This Agreement replaces all prior agreements and proposed
agreements between or among the parties with respect to the subject matter
hereof. The parties warrant, promise and represent that in execution of this
Agreement, they are not relying upon any oral representation, promise or
statement or representation contained in any other written instruments, except
any writings which are specifically incorporated herein by reference. This
Agreement is being entered into simultaneously with a License Agreement between
the parties hereto dated as of the date hereof, and this Agreement and such
License Agreement shall be read interpreted and enforced in conjunction with one
another.
12. Enforceability; Admissibility. This Agreement is intended to be
enforceable at law and/or admissible as evidence in any judicial or
administrative proceeding, arbitration or non-criminal proceeding.
13. Counterparts; Execution. This Agreement may be signed in
counterparts. All such counterparts shall constitute one and the same
instrument. Facsimile or photocopied signatures shall be as effective as
originals signatures in binding the parties to the terms hereof. The parties
agree that any signature transmitted by or to another party or their counsel
shall be binding for all purposes, and that each and every other party may
reasonably rely thereon. The parties agree that this Agreement shall not be
deemed executed until signed by all the parties hereto.
14. Headings; Gender. The parties hereto understand that the headings
contained within this Agreement are included for purposes of convenience only
and shall not in any manner limit or define any of the rights, responsibilities,
duties or liabilities of any of the parties hereto set forth in any of the
paragraphs hereof, and shall not affect the construction or interpretation of
any other provision hereof. Words used herein, regardless of the gender
specifically used, shall be deemed and construed to include any other gender,
masculine, feminine or neuter, as the context requires.
15. Construction. The parties acknowledge that this Agreement is the
product of joint negotiation. Therefore, in the event any term, provision or
obligation is found to be vague and ambiguous, such term, provision or
obligation shall not be construed against any party hereto.
16. Costs and Fees. Each side shall bear its own costs and attorney's
fees in connection with the transactions contemplated by this Agreement.
17. Authority. Each party hereto represents and warrants that the
respective signatory for such party has authority to execute this Agreement in
the capacity set forth and to agree to the terms hereof.
18. Advice of Counsel. Each of the parties warrants that, in executing
this Agreement, it has received advice from legal counsel, or has waived the
opportunity to do so, and further warrants it has read this Agreement and
understands its terms, and has executed it voluntarily and with full knowledge
of its legal significance. In executing this Agreement, the parties, and each of
them, rely upon no inducements, promises or representations made by any other
party.
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19. Assignment of Claims. Each party represents and warrants that no
portion of any claim, right, demand or cause of action which they may now or
hereafter have against any party hereto has been assigned or transferred to any
person other than the settling parties hereto, including but not limited to
assignment or transfer by subrogation or by operation of law. In the event that
any claim, demand or suit should be made or instituted against the any of the
parties hereto because of any such assignment, transfer, or subrogation, the
party on whose behalf such claim, demand, or suit is made shall indemnify, hold
free and harmless and defend the other party against whom or which any such
claim, demand or suit is made.
20. Assignments; Parties in Interest. Neither this Agreement nor any of
the rights, interests or obligations under this Agreement may be assigned by any
of the parties hereto (whether by operation of law or otherwise) without the
prior written consent of the other parties. Subject to the preceding sentence,
this Agreement shall be binding upon and inure solely to the benefit of each
party hereto, and nothing herein, express or implied, is intended to or shall
confer upon any Person not a party hereto any right, benefit or remedy of any
nature whatsoever under or by reason hereof, except as otherwise provided
herein.
21. Severability. It is expressly understood and agreed by the parties
hereto that should any paragraph, provision or portion of this Agreement be held
to be invalid, illegal or void, then and in such event, any paragraph, provision
or portion so held to be invalid, illegal or void shall be deleted from this
Agreement and same shall be read as though such invalid, illegal or void
paragraph, provision or portion was never included herein, and the remainder of
this Agreement shall nevertheless subsist and continue in force and effect.
Notwithstanding the foregoing, should such deletion prevent the dismissal of the
referenced actions, or the settlement of all claims and potential claims among
the parties, this Agreement shall be terminated, null and void, and of no
further force and effect.
22. Certain Definitions.
(A) An "Affiliate" or "affiliate" of a person means another
person that, directly or indirectly, through one or more intermediaries,
controls, is controlled by, or is under common control with, the first mentioned
person.
(B) "Control" or "control" (including the terms "controlled
by" and "under common control with") means the possession, directly or
indirectly or as trustee or executor, of the power to direct or cause the
direction of the management or policies of a person, whether through the
ownership of stock, as trustee or executor, by contract or credit arrangement or
otherwise.
(C) "Person" or "person" means an individual, corporation,
partnership, limited liability company, association, trust, unincorporated
organization, other entity or group (as defined in Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended).
(D) "Related Persons" means officers, directors, partners,
managers, stockholders, members, employees, consultants, contractors, attorneys,
agents and representatives.
(E) "Subsidiary" or "subsidiary" ("Subsidiaries" or
"subsidiaries") means any corporation, partnership, joint venture or other legal
entity of which such Univec (either alone or through or together with any other
subsidiary) owns, directly or indirectly, more than 50% of the stock or other
equity interests, the holders of which are generally entitled to vote for the
election of the board of directors or other governing body of such corporation
or other legal entity.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
UNIVEC, INC.
By: _____________________________
▇▇▇▇▇ ▇▇▇▇▇▇, President
SYRINTER, LTD.
By: _____________________________
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INTELLECTUAL PROPERTY
A. Patent Rights Granted, Licensed or Pending
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TITLE DATE GRANTED PATENT NUMBER
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Restricted Use Hypodermic Syringe: August 29, 1989 5,021,047
Licensed By Univec from ▇▇▇▇ ▇▇▇▇▇▇ February 2, 1993 5,183,466
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Non-reusable Dispensing Apparatus: Licensed by Univec November 16, 1993 5,261,881
from ▇▇▇▇▇
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Single Use Hypodermic Syringe December 6, 1994 5,370,620
(Including Single Use Syringe with Aspirating (Filed February 14, 1994 and 08/195,302
Mechanism which is a continuation in part of two April 25, 1994) 08/232,749
applications) (U.S. Serial Nos.)
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Single Use Syringe Assembly July 26, 1996 5,531,691
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Single Use Syringe Assembly October 8, 1996 5,562,623
Including Spring Clip Lock and Plunger
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Non-Reusable Syringe: September 18, 1991 2,241,893A(UK)
Licensed by Univec from ▇▇▇▇▇ ▇▇▇▇▇ (UK)
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Single Use Hypodermic Syringe Having Unitary Needle January 10, 1997 08/778,145
Cover-Plunger (Disclosure filed) (U.S. Serial No.)
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Single Use Syringe Assembly August 29, 1995 AU689,862
Comprising Spring Clip Lock & Plunger
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Single Use Syringe Assembly March 20, 1999 RU2,127,611
Comprising Spring Clip Lock & Plunger
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