EXHIBIT 10.15
SETTLEMENT AGREEMENT
This Settlement Agreement (hereafter "Agreement") is entered into by
and between Makena Commercentre II, LLC, a California limited liability company,
and Makena Partners, a California general partnership, (collectively "Makena")
and Pacific Biometrics, Inc., a Washington corporation ("PBIW"), Pacific
Biometrics, Inc., a Delaware corporation ("PBID"), and Saigene Corporation, a
Delaware corporation ("Saigene"), effective as of May 31, 2003.
1. RECITALS
1.1 PBID signed a promissory note dated January 29, 1999 in favor
of Makena Partners in the principal amount of $15,000.00, with interest thereon
at the rate of 12 percent per annum, all due and payable three months from the
date thereof (the "PBID Note"). No portion of the amount due on the PBID Note
has been paid. The parties agree that the PBID Note is valid and enforceable in
all respects.
1.2 Saigene signed a promissory note dated March 8, 2000 in favor
of Makena Commercentre II, LLC in the principal amount of $350,000.00, payable
in installments of $10,000 per month beginning April 1, 2000 and continuing
through January 1, 2003, with a six-percent late charge and interest thereon at
the rate of 10 percent per annum in the event of default in payment as provided
therein (the "Saigene Note"). The balance due on the Saigene Note was
$409,995.00 as of May 31, 2002. Since then payments have been made in the
following amounts:
$25,000 on October 3, 2002;
$25,000 on October 9, 2002;
$ 7,000 on November 2, 2002;
$ 9,000 on November 15, 2002;
$ 7,000 on December 2, 2002;
$ 9,000 on December 16, 2002;
$ 7,000 on January 2, 2003;
$ 9,000 on January 17, 2003;
$ 7,000 on February 4, 2003;
$ 9,000 on February 21, 2003;
$ 7,000 on March 3, 2003;
$ 9,000 on March 14, 2003;
$ 7,000 on April 1, 2003;
$ 9,000 on April 15, 2003;
$ 7,000 on May 5, 2003;
$ 9,000 on May 15, 2003;
.. $ 7,000 on May 31, 2003.
With such payments the balance due on the Saigene Note is $276,967.20 as of May
31, 2003. The parties agree that the Saigene Note is valid and enforceable in
all respects after credit for payments made as provided in this section 1.2.
1.3 The PBID Note and the Saigene Note are collectively referred
to in this Agreement as the "Notes". The parties agree that the present total
balance due on the Notes, including attorney's fees and costs, is $320,314.83 as
of May 31, 2003. PBID, PBIW and Saigene are related companies, and all assume
liability, jointly and severally, on the Notes.
2. TERMS OF SETTLEMENT
In consideration of the mutual covenants set forth herein, the parties
agree as follows:
2.1 PBID, PBIW and Saigene, jointly and severally, shall pay to
Makena the sum of $320,314.83 according to the terms of this Agreement and the
promissory note they are signing and delivering to Makena concurrently with this
Agreement, a copy of which promissory note is attached to this Agreement as
Exhibit 1 and
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incorporated by this reference (the "New Note"). The New Note represents the
balance due on the Notes and attorney's fees Makena has incurred in enforcing
payments due on the Notes. The New Note supersedes and cancels the Notes in
their entirety, as well as any indebtedness on which the Notes, or either of
them, are based. Concurrently with this Agreement and the New Note, Makena shall
deliver to PBID and Saigene, respectively, the original PBID Note and the
original Saigene Note for cancellation. Makena represents and warrants that the
Notes have not been sold, pledged or otherwise transferred, and no other person
has any rights or interest in or to the Notes.
2.2 As security for the performance by PBID, PBIW and Saigene
under the New Note, PBID shall issue to Makena 666,666 shares of common stock of
PBID (the "Shares"). The Shares shall be issued in the name of "Makena
Commercentre II, LLC" and certificates for the Shares shall be delivered to and
held in escrow by U.S. Bank Trust National Association as "escrow agent"
pursuant to the terms hereof and the terms of an escrow agreement to be entered
into with such escrow agent, substantially in the form of the escrow agreement
attached to this Agreement as Exhibit 2 and incorporated by this reference (the
"Escrow Agreement"). The parties understand and agree that Makena will
nevertheless have full recourse against PBID, PBIW and Saigene, jointly and
severally, as provided in this Agreement and the New Note, and the security
provided in this section shall not be a defense against such liability;
provided, however, that to the extent that Makena voluntarily receives and
accepts any of the Shares from Escrow, the liability of PBID, PBIW and Saigene
shall be reduced by the value of such Shares, equal to the number of Shares
released multiplied by the per share average closing price of the PBID common
stock for the 10 trading days prior to the date of such release. If PBID, PBIW
and Saigene collectively pay Makena an aggregate of at least $50,000 during any
calendar quarter during which this Agreement is in effect, the escrow agent
shall release and return to PBID for cancellation share certificates
representing 83,333 Shares of such stock, and Makena shall thereafter have no
security interest in such released Shares. The parties agree that all payments
made on the Notes between March 31, 2003 and the date of this Agreement shall be
credited towards the $50,000 amount for purposes of calculating the total
quarterly payments for 2nd calendar quarter of 2003. If PBID, PBIW and Saigene
fail to pay Makena at least $50,000 during any calendar quarter during which
this Agreement is in effect, PBID shall not be entitled the release of such
security for that quarter; provided, however, that all Shares shall be released
once all amounts due under the New Note have been paid in full.
2.3 If PBID, PBIW and Saigene fail to make timely payment of any
amount provided in the New Note, Makena may so notify PBID, PBIW and Saigene. If
PBID, PBIW and Saigene fail to make payment within five business days after any
such notice (a "Cure Default"), Makena may file suit to collect the balance then
due on the New Note and apply to the court in such action, by noticed motion, to
have judgment entered with the court in such action according to the terms of
the Judgment by Stipulation in the form attached to this Agreement as Exhibit 3
and incorporated by this reference (the "Stipulated Judgment"). PBID, PBIW and
Saigene shall use their best commercial efforts to pay Makena at least $50,000
during any calendar quarter during which this Agreement is in effect, but if
they fail to do so despite their best commercial efforts Makena shall not be
entitled to pursue the recourse provided in this section except on the
conditions provided in this section.
2.4 PBID, PBIW and Saigene shall sign the original undated
Stipulated Judgment when they sign this Agreement and shall immediately provide
it to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for Makena. Counsel for Makena shall hold
the Stipulated Judgment in escrow and shall not seek to have it entered unless
and until a Cure Default shall have occurred and be continuing.
2.5 PBID, PBIW and Saigene shall keep Makena informed, and respond
promptly to any inquiries from Makena, concerning any events that would trigger
payment of the New Note.
2.6 PBID shall issue to Makena 16,667 shares of common stock of
PBID (the "Additional Shares"). The Additional Shares shall be issued in the
name of "Makena Commercentre II, LLC." PBID shall provide one or more share
certificates to Makena for such stock.
2.7 Except as otherwise provided in this Agreement and the New
Note, Makena releases, waives and relinquishes any and all claims it may have
against PBID, PBIW and Saigene, or any of them, whether known or unknown. Except
as otherwise provided in this Agreement and the New Note, PBID, PBIW and Saigene
release, waive and relinquish any and all claims they, or any of them, may have
against Makena, whether known or
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unknown. Each of the parties expressly waives the provisions of Section 1542 of
the California Civil Code, which provides as follows:
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.
3. WARRANTIES AND REPRESENTATIONS
The parties warrant and represent that no promise or inducement has been offered
or made for this Agreement except as herein set forth, that this Agreement is
executed without reliance on any statements or any representations not contained
herein, either oral or written, and that this Agreement reflects and constitutes
the entire settlement agreement between the parties. The parties further warrant
and represent that they have not assigned any claim relating to the Action and
that they have full authority to waive such claims as provided in this
Agreement. The parties further agree that there are no intended or third-party
beneficiaries of this Agreement. The warranties and representations made in this
Agreement shall survive the execution and delivery of this Agreement and shall
be binding on the respective heirs, representatives, successors and assigns of
each of the parties.
4. SECURITIES LAW REPRESENTATIONS AND WARRANTIES
4.1 Makena acknowledges that neither the Shares nor the Additional
Shares (collectively, the "Securities") are being registered under the
Securities Act of 1933, as amended (the "Securities Act"), or applicable state
securities laws, but are being issued pursuant to exemptions from such laws.
Makena acknowledges that certificates for the Securities will bear a legend to
the effect that the Securities are "restricted securities," transfer of the
Securities is restricted pursuant to the Securities Act and applicable state
securities laws, and stop-transfer instructions will be placed with the transfer
agent for the Securities. Makena understands that there will be securities laws
restrictions on Makena's ability to sell, pledge or transfer the Securities, and
there are no assurances of a market for the Securities at such time Makena wants
to sell them.
4.2 Makena is acquiring the Securities solely for its own account,
for investment purposes only, and not with a view towards their resale or
distribution. Makena has no present intention of selling, granting any
participation in or otherwise distributing any of the Securities in a manner
contrary to the Securities Act or any applicable state securities law.
4.3 Makena is an "accredited investor" as such term is defined in
Rule 501(a) under the Securities Act and Makena is familiar with such term.
Makena is a sophisticated investor, has sufficient knowledge and experience in
financial and business matters that it is capable of evaluating the merits and
risks of the prospective investment in the Securities. Makena's principal place
of business is in the State of California.
4.4 Makena has been solely responsible for its due diligence
investigation of PBID and its business, operations, financial condition, assets,
liabilities and other relevant matters. Makena has reviewed PBID's filings with
the U.S. Securities and Exchange Commission, including the risk factors
contained therein. Except as expressly set forth in this Agreement, PBID is not
making any representations or warranties to Makena.
5. NOTICES AND PAYMENTS
Any and all notices required or permitted under this Agreement to be
served or given to either party shall be in writing and shall be delivered in
person or by fax, with a fax copy to counsel for the party receiving notice. Any
payments made under this Agreement may be delivered without a facsimile copy to
counsel. Any payment or notice to Makena shall be delivered to:
Makena Commercentre II, LLC
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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with a facsimile copy (as to any notice only) to:
M. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Any notice to PBID, PBIW or Saigene shall be delivered or mailed to:
Pacific Biometrics, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a facsimile copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Cairncross & Hempelmann, P.S.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Any notice shall be effective either when received or when mailed by first-class
mail, with a copy sent by fax to counsel for the party receiving notice. Any
payment shall be effective only when received. Any party may change its address
for purposes of receiving notice by giving written notice of such change to the
other parties in the manner provided in this paragraph.
6. INCORPORATION OF RECITALS
The parties hereby incorporate each of the Recitals stated above as
material provisions of this Agreement.
7. EFFECT OF AGREEMENT
This Agreement shall be binding on and shall inure to the benefit of
the parties and their respective heirs, representatives, assigns, and
successors.
8. EXECUTION
Each person whose signature appears hereon warrants and guarantees that
he or she has been duly authorized and has full authority to execute this
Agreement on behalf of the person, persons, or entity on whose behalf this
Agreement is executed.
9. COUNTERPARTS AND FACSIMILE SIGNATURES
This Agreement may be executed in one or more counterparts, and all so
executed shall constitute one Agreement, which shall be binding on the parties.
Any facsimile of a signature to this Agreement shall be deemed to be an original
signature for all purposes.
10. CHOICE OF LAW
The validity, construction and performance of this Agreement shall be
subject to and controlled by the laws of the State of California.
11. REPRESENTATION BY COUNSEL
Each party has read this Agreement, has received the benefit and advice
of counsel of that party's choice, and has had this Agreement fully explained by
such counsel. Each person signing this agreement on behalf of a party represents
and warrants that he or she fully understands and appreciates the terms of this
Agreement and their effect. The content and language of this Agreement have been
approved by counsel for each of the parties, and in
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the event interpretation of any alleged ambiguity is requested or required,
there shall be no presumption or construction against any party as the drafter
of this Agreement.
12. ENFORCEMENT OF AGREEMENT
If any legal action or other proceeding is brought for the enforcement
of this Agreement, or because of an alleged dispute, breach, default, or
misrepresentation relating to or arising out of with any of the provisions of
this Agreement, the successful or prevailing party shall be entitled to recover
all attorney's fees and other costs reasonably incurred in that action or
proceeding, in addition to any other relief to which it may be entitled.
13. FURTHER ASSURANCES
The parties agree to execute all instruments and documents of further
assurance and will do any and all such acts as may be reasonably required to
carry out their obligations in this Agreement.
[signatures on following page]
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EXECUTED as of the date first above written, by duly authorized
representatives of the parties hereto, intending to be legally bound hereby.
MAKENA COMMERCENTRE II, LLC, MAKENA PARTNERS,
a California limited liability company a California general partnership
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Managing Member ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Partner
PACIFIC BIOMETRICS, INC., PACIFIC BIOMETRICS, INC.,
a Delaware corporation a Washington corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇, Chief Executive Officer ▇▇▇▇▇▇ ▇▇▇▇, Chief Executive Officer
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇, Secretary ▇▇▇▇▇▇ ▇▇▇▇, Secretary
SAIGENE CORPORATION,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Chief Operating Officer
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Secretary
Solely for purposes of Section 2.4:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
By: /s/ M. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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M. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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