EXHIBIT 10.111
TERMINATION AND MUTUAL RELEASE AGREEMENT
THIS TERMINATION AND MUTUAL RELEASE AGREEMENT (the "Agreement") is entered
into effective as of this 1st day of September, 1996, by and between Biomune
Systems, Inc., a Nevada corporation (the "Company"), on the one hand, and Aurora
Capital Corp., a New York corporation ("Aurora Capital"), and Aurora
Consultants, L.L.C., a New York limited liability company ("Aurora
Consultants"), on the other hand. The Company, Aurora Capital and Aurora
Consultants are referred to herein, collectively, as the "Parties".
Recitals:
A. WHEREAS, the Company and Aurora Consultants entered into an Engagement
Letter dated December 14, 1995 (the "Consulting Agreement"), pursuant to which
Aurora Consultants agreed to provide the Company with certain consulting
services;
B. WHEREAS, in connection with the Consulting Agreement, the Company and
Aurora Consultants entered into an Understanding of Confidentiality also dated
December 14, 1995 (the "Confidentiality Agreement"), pursuant to which Aurora
Consultants agreed, for and on behalf of itself and its advisors, officers,
directors, partners, members and affiliates, to keep all information furnished
by the Company after the date thereof confidential;
C. WHEREAS, the Company and Aurora Capital entered into a Letter Agreement
dated March 28, 1996 (the "Letter Agreement"), which Letter Agreement had
attached thereto a Proposed Term Sheet also dated March 28, 1996 (the "March 28,
1996 Term Sheet"), both of which related to a proposed private placement
financing transaction by the Company for which Aurora Capital was to have acted
as the placement agent (the "Private Placement");
D. WHEREAS, subsequent to entering into the Letter Agreement and the Xxxxx
00, 0000 Xxxx Sheet, the Company and Aurora Capital negotiated a Proposed Term
Sheet dated May 9, 1996 (the "May 9, 1996 Term Sheet"), which May 9, 1996 Term
Sheet superseded in its entirety the March 28, 1996 Term Sheet;
E. WHEREAS, the Letter Agreement and the May 9, 1996 Term Sheet together
reflect the proposed terms of the Private Placement and together are referred to
in this Agreement as the "Placement Agreement";
F. WHEREAS, by letter to Aurora Capital dated September 5, 1996, the
Company notified Aurora Capital that it was terminating the Placement Agent, the
Private Placement and Aurora Capital as the placement agent thereof effective
immediately;
G. WHEREAS, the Company and Aurora Capital desire to enter into this
Agreement in order to formerly terminate their relationship and the Placement
Agreement;
H. WHEREAS, pursuant to the March 28, 1996 Term Sheet, the Company and
Aurora Capital agreed that Aurora Consultants would suspend its consulting
activities under the Consulting Agreement and that the Company would suspend its
payment obligations thereunder from March 28, 1996 through the final closing of
the Private Placement;
I. WHEREAS, pursuant to the May 9, 1996 Term Sheet, the Company and Aurora
Capital further agreed that Aurora Consultants would suspend its consulting
activities under the Consulting Agreement and that the Company would suspend its
payment obligations thereunder from May 9, 1996 through the final closing of the
Private Placement; and
J. WHEREAS, the Company and Aurora Consultants now desire to reinstate the
Consulting Agreement effective as of October 1, 1996.
NOW, THEREFORE, in consideration of the mutual premises and agreements set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. Release of Aurora Capital by the Company. The Company does hereby
forever release, discharge, cancel and waive, for itself and its heirs,
executors, administrators and assigns, Aurora Capital and its successors,
assigns, officers, directors, shareholders, agents and representatives of and
from any and all rights, claims, demands, causes of action, obligations,
damages, penalties, costs, expenses and liability (collectively, "Claims") of
any nature whatsoever, fixed or contingent, that the Company now has, may have
or may hereafter have against Aurora Capital or any of its successors, assigns,
officers, directors, shareholders, agents or representatives arising out of, or
by reason of, any cause, matter or thing whatsoever existing as of the effective
date of this Agreement, including, but not limited to, any claims, demands or
causes of action arising out of or relating in any manner whatsoever to the
Private Placement or any other document, instrument, agreement or action
associated with the Private Placement (collectively, the "Private Placement
Documents"). The Company further covenants and agrees not to institute or cause
to be instituted any legal proceeding or administrative action against Aurora
Capital or any of its successors, assigns, officers, directors, shareholders,
agents or representatives based upon the Private Placement or any of the Private
Placement Documents under any federal, state or local law, rule, statute or
regulation premised upon any legal theory or claim whatsoever, including, but
not limited to, breach of contract, tort, personal injury, fraud or deceit,
including any rights or claims the Company may have based on a violation or
breach of any of the Private Placement Documents, express or implied.
2. Release of the Company by Aurora Capital. Aurora Capital does
hereby forever release, discharge, cancel and waive, for itself and its heirs,
executors, administrators and assigns, the Company and its successors, assigns,
officers, directors, shareholders, agents and representatives of and from any
and all Claims of any nature whatsoever, fixed or contingent, that Aurora
Capital now has, may have or may hereafter have against the Company or any of
its successors, assigns, officers, directors, shareholders, agents or
representatives arising out of, or by reason of, any cause, matter or thing
whatsoever existing as of the effective date of this Agreement, including, but
not limited to, any claims, demands or causes of action arising out of or
relating in any manner whatsoever to the Private Placement or the Letter
Agreement, the March 28, 1996 Term Sheet, the May 9, 1996 Term Sheet, the
Confidential Private Placement Memorandum related to the Private Placement or
the Private Placement Documents. Aurora Capital further covenants and agrees not
to institute or cause to be instituted any legal proceeding or administrative
action against the Company or any of its successors, assigns, officers,
directors, shareholders, agents or representatives based upon the Private
Placement or any of the Private Placement Documents under any federal, state or
local law, rule, statute or regulation premised upon any legal theory or claim
whatsoever, including, but not limited to, breach of contract, tort, personal
injury, fraud or deceit, including any rights or claims Aurora Capital may have
based on a violation or breach of any of the Private Placement Documents,
express or implied.
3. Settlement of Private Placement Expenses. As of the date of this
Agreement, the Company has paid to Aurora Capital and/or its counsel, Todtman,
Young, Tunick, Nachamie, Xxxxxxx & Spizz, P.C., in connection with the necessary
due diligence on the Company and the preparation of the Confidential Private
Placement Memorandum related to the Private Placement, amounts totaling in
excess of $100,000. In consideration for Aurora Capital's execution of this
Agreement, the Company herewith relinquishes all rights and claims to all
amounts previously paid or advanced to Aurora Capital and/or its counsel in
connection with the Private Placement or pursuant to the Private Placement
Documents. Accordingly, the Company and Aurora Capital agree that the Company
will not be obligated to pay any additional costs or expenses incurred by Aurora
Capital, its counsel or any other person or entity in connection with the
Private Placement Documents, the Private Placement or the offering of shares of
the Company's Common Stock pursuant to the Confidential Private Placement
Memorandum that have not heretofore been paid by the Company, and the Company
and Aurora Capital further agree that Aurora Capital shall solely be responsible
for all of such costs and expenses except for $3540.65 of direct out-of-pocket
expenses incurred by Aurora Capital Corporation which the Company hereby agrees
to reimburse upon presentation of receipts in like amount. The Company and
Aurora Capital Corporation acknowledge that the escrow agent has waived any fees
associated with the escrow agreement. The Company acknowledges that it has paid
all amounts due in respect of this printing of the documents associated with the
terminated offering and that such payments were and directly to the printer.
Aurora Capital agrees not to seek or make any claims against the Company for any
additional compensation, costs, expenses, interest, fees, commissions,
assessments or lost fees or commissions.
4. Reinstatement of Consulting Agreement. In the March 28, 1996 Term
Sheet, the Company and Aurora Capital agreed that Aurora Consultants (which is
an affiliate of Aurora Capital) would suspend its consulting activities under
the Consulting Agreement and that the Company would suspend its payment
obligations thereunder from March 28, 1996 through the final closing of the
Private Placement. Accordingly, as of March 28, 1996, Aurora suspended its
consulting activities under the Consulting Agreement and the Company suspended
its payment obligations thereunder. Aurora Consultants and the Company hereby
agree that the Consulting Agreement has been suspended for a total of six (6)
months (i.e., April 1996 through September 30, 1996) pursuant to the March 28,
1996 Term Sheet and, therefore, that the Consulting Agreement shall be extended
by six (6) months (i.e., through June 30, 1997). Thus, Aurora Consultants agrees
to resume performing consulting services for the Company pursuant to the
Consulting Agreement as of September 6, 1996 and the Company agrees to resume
paying Aurora Consultants $5,000 per month beginning October 1, 1996 except as
to a pro-rated amount for September 1996. Other than the six (6) month extension
provided by the March 28, 1996 Term Sheet, the Consulting Agreement shall
otherwise remain in full force and effect as originally executed. A copy of the
Consulting Agreement is attached hereto as Exhibit "A". Aurora Consultants
hereby understands that as special consulting and financial projects become
necessary on which the Company deems the services and expertise of Aurora
Consultants (or any of its affiliates) will be of value or use, the Company may,
in its discretion, solicit the assistance and services of Aurora Consultants (or
its affiliate), in which event a separate written contract for such services
will be entered into between the Company and Aurora Consultants (or its
affiliate), thus potentially giving Aurora Consultants the ability to increase
its consulting income from the amount set forth above. Aurora Consultants and
the Company hereby acknowledge that Aurora Consultants was previously issued the
30,000 warrants referenced in the Consulting Agreement and, accordingly, will
not be entitled to any additional warrants for shares of the Company's Common
Stock.
5. Severability; Entire Agreement. If any provision of this Agreement
is held by a court or tribunal of competent jurisdiction to be invalid, void or
unenforceable for any reason whatsoever, the remaining provisions not so
declared shall nevertheless continue in full force and effect without being
impaired in any manner. This Agreement constitutes the sole and entire agreement
between the Parties and supersedes any and all understandings and agreements
made prior thereto. This Agreement specifically terminates the Private Placement
Documents in their entirety. There are no collateral understandings,
representations or agreements between the parties hereto other than those
contained herein.
6. Jurisdiction and Governing Law. With respect to any suit, action or
proceeding relating to this Agreement, the Confidentiality Agreement or the
Consulting Agreement, the Parties irrevocably agree that any such proceeding
shall be submitted to the exclusive jurisdiction of the courts of the State of
Utah located in the County of Salt Lake and the United States District Court for
the District of Utah and that any and all objections that any of the Parties may
have at any time to the laying of venue of any such proceeding brought in any
such court, is hereby waived, including but not limited to, the objections that
such proceeding has been brought in an inconvenient forum or that the court
lacks jurisdiction.
7. Miscellaneous. The above Recitals and all Exhibits attached hereto
are deemed to be incorporated in this Agreement by reference. After the
effective date of this Agreement, none of the Parties shall take any action
related to the Private Placement, including, but not limited to, the making of
any oral or written statement, that damages the reputation of any of the other
Parties. Both the Confidentiality Agreement and the Consulting Agreement shall
continue in full force and effect as originally executed except as specifically
modified by this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly
executed as of the day and year first above written.
THE COMPANY: AURORA CAPITAL:
BIOMUNE SYSTEMS, INC., a AURORA CAPITAL CORP., a New York
Nevada corporation corporation
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxx Xxxxx Xxxxxxxx
-------------------------- --------------------------
Xxxxx X. Xxxxxxx Xxxx Xxxxx Xxxxxxxx
Its: Chief Executive Officer Its: Chief Executive Officer
AURORA CONSULTANTS:
AURORA CONSULTANTS, L.L.C., a
New York limited liability company
By: /s/ Xxxx Xxxxx Xxxxxxxx
Xxxx Xxxxx Xxxxxxxx
Its: President and Managing
Member
ATTACHED EXHIBIT:
- Exhibit "A" -- Consulting Agreement
