Exhibit 10.50
SETTLEMENT AGREEMENT AND MUTUAL RELEASE OF CLAIMS
This Settlement Agreement and Mutual Release of Claims ("Agreement"),
dated as of November 3, 2008 (the "Effective Date") is entered into between
C.D.S. Engineering, LLC, a limited liability company organized under the laws of
the State of California with a principal place of business at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("CDS"), on behalf of itself, its representatives,
heirs, executors, administrators, trustees, predecessors (including, without
limitation, CDS Group Corporation, a Delaware corporation), successors,
affiliates (including, without limitation, C.D.S. Engineering, Inc., a
California corporation), subrogors, subrogees, lessees, lessors, grantees,
assignees, assignors, subsidiaries, agents, employees, servants, owners, alter
egos, attorneys, general partners, limited partners, and representatives on the
one hand, and Intraop Medical Corporation, a corporation organized under the
laws of the State of Delaware with a principal place of business at ▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ("Intraop"), acting on behalf of itself,
its representatives, heirs, executors, administrators, trustees, predecessors,
successors, affiliates, subrogors, subrogees, lessees, lessors, grantees,
assignees, assignors, subsidiaries, parent corporations, agents, employees,
servants, officers, directors, members, shareholders, owners, alter egos,
attorneys, general partners, and limited partners, on the other hand. CDS and
Intraop are sometimes referred to hereinafter individually as a "Party," and
collectively, the "Parties".
WHEREAS:
A. Intraop and CDS are parties to a Manufacturing Services Agreement dated
September 5, 2002, amended on January 6, 2005, further amended on March 16,
2005, and further amended on April 28, 2005 (as amended, the "MSA"), under which
CDS agreed to manufacture for and sell to Intraop certain Products (as such term
is defined in the MSA) and accessories under and relating to Intraop's
proprietary Mobetron trademark, patents and associated intellectual property
rights, for which Intraop has granted CDS a limited manufacturing license.
B. Although relating to the MSA, but to the extent they may be considered
separate from the MSA, Intraop and CDS are also parties to other agreements
relating to manufacturing schedules and sales prices for certain of Intraop's
Products, accessories and services, including without limitation a Memorandum of
Understanding dated January 5, 2005, as amended and restated on March 16, 2005
(as to any and all such other agreements excluding this Agreement, whether
written or oral, the "Other Agreements").
C. In a letter to CDS dated September 11, 2008, Intraop stated claims
against CDS based on a breach of one or more terms of the MSA and other rights
under law and equity (together with any other reserved claims, the "Intraop
Claims") including, without limitation: i) incomplete Products and overpayments
amounting to $638,511.00 as of the date of such letter, ii) misrepresentations
of CDS relating to the foregoing, iii) incorrect charges and invoicing by CDS,
and iv) undelivered Products for which Intraop has already submitted payment to
CDS (the "Intraop Property"). CDS disputes these claims.
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D. CDS claims that it holds accounts receivable in the amount of
$468,104.34 due and owing from Intraop under the MSA (together with any other
reserved claims, the "CDS Claims") which Intraop has disputed and continues to
dispute.
E. The Parties wish to fully and finally resolve their respective claims
and to terminate the MSA and the Other Agreements pursuant to this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the Parties agree as follows:
1. Termination of the MSA. The MSA and Other Agreements are hereby
terminated by mutual agreement of the Parties, without regard to section 8.4 of
the MSA. Other than as set forth in this Agreement, there shall be no continuing
obligations under the MSA or Other Agreements by either Party to the other
including any obligations arising from the provision of Products pursuant to the
MSA.
2. No Remaining Detention of Intraop Property. CDS agrees that CDS has no
property interest in the Intraop Property described on Attachment A. CDS further
agrees that such Intraop Property has been fully paid by Intraop and is owned by
Intraop. CDS agrees that as of the Effective Date, it shall provide full
cooperation and assistance to Intraop to allow Intraop to collect any remaining
Intraop Property in the possession of CDS. Intraop's tender of the First Payment
(as defined in paragraph 4 hereof) is made only upon Intraop taking full
possession of all such Intraop Property.
3. Delivery of Components/Database and History Documents. The Parties agree
that the items described on Attachment B represent the total service stock in
CDS' possession, including excess and obsolete inventory, of Components (as such
term is defined in the MSA) under Section 4.2 of the MSA. On and subject to the
terms and conditions of this Agreement, Intraop agrees to purchase and acquire
from CDS and CDS hereby sells, transfers, assigns and conveys such Components to
Intraop and CDS agrees that it shall provide full cooperation and assistance to
Intraop to allow Intraop to collect such Components from CDS' facility as and
when reasonably requested by Intraop. Set forth on Attachment C are certain
electronic database materials and product and vendor history documentation (the
"Documentation") that were utilized by CDS in the production of the Products.
CDS agrees that as of the Effective Date, CDS shall: (i) make its facility
available to Intraop personnel and provide its reasonable assistance to allow
Intraop the opportunity to package the Components for drayage and removal by
Intraop through transportation arranged by Intraop and (iv) cooperate with
Intraop personnel to transfer the Documentation (to the best of CDS' ability) to
Intraop personnel.
4. Payment. Intraop has paid CDS the sum of twenty five thousand United
States Dollars ($25,000) (the "First Payment"), the receipt of which is hereby
acknowledged. Intraop shall pay to CDS a second payment of Twenty Thousand
United States Dollars ($20,000) (the "Second Payment") on or prior to thirty
(30) days following the Effective Date. Thereafter, Intraop shall pay to CDS a
third payment of Twenty Thousand United States Dollars ($20,000) (the "Third
Payment") on or prior to thirty (30) days following the date of the Second
Payment. Thereafter, Intraop shall pay to CDS a fourth payment of Twenty
Thousand United States Dollars ($20,000) (the "Fourth Payment") on or prior to
thirty (30) days following the date of the Third Payment. Thereafter, Intraop
shall pay to CDS a fourth payment of Fifteen Thousand United States Dollars
($15,000) (the "Fifth Payment") on or prior to thirty (30) days following the
date of the Fourth Payment. Collectively, the foregoing payments totaling one
hundred thousand United States Dollars ($100,000) are herein referred to as the
"Settlement Payment," and such Settlement Payment, in whole and in part, is made
in consideration of the compromise between the Parties in this Agreement.
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5. Assumption of Open Purchase Orders. On and subject to the terms and
conditions of this Agreement, CDS hereby assigns all of its interest in the
stand-alone open purchase orders listed on Attachment D ("Open Purchase Orders")
and Intraop agrees to assume and become responsible for any remaining payment
obligation for such Open Purchase Orders. CDS represents and warrants that no
other contractual agreement was or remains in place with respect to the subject
matter of the Open Purchase Orders other than as reflected in such stand-alone
Open Purchase Orders themselves. CDS shall respond to inquiries from sellers
under such Open Purchase Orders to contact Intraop for delivery of any products,
materials and/or services under such Open Purchase Orders.
6. Release of Claims between the CDS and Intraop.
a. Except for claims arising out of the breach of this Agreement, and
upon its receipt of the full Settlement Payment, CDS, for itself and its
collective and respective agents, employees, officers, attorneys, sureties,
insurers and other related entities, including its predecessors (including
without limitation, CDS Group Corporation, a Delaware corporation), and
affiliates (including, without limitation, C.D.S. Engineering, Inc., a
California corporation, and as to all such affiliates, "CDS Affiliated
Parties"), does hereby release and forever discharge Intraop, its officers,
employees, attorneys, sureties, insurers and other related entities
("Intraop Affiliated Parties") of and from any and all claims (monetary or
otherwise), debts, liabilities, liquidated damages, costs, actions,
judgments, demands, obligations, contracts, suits, expenses, losses,
attorney's fees, damages and causes of action of any kind or nature,
including claims for indemnity or contribution, arising out of or related
to the MSA or the Other Agreements and the performance or non-performance
of the obligations of Intraop thereunder, directly or indirectly, which the
CDS may now or hereafter have or claim to have against Intraop and any
Intraop Affiliated Party, including without limitation the CDS Claims. Upon
its receipt of the full Settlement Payment, CDS, for itself and on behalf
of the CDS Affiliated Parties, does hereby acknowledge that Intraop has
performed all of its obligations, including payment obligations, pursuant
to the MSA and Other Agreements and that CDS has been fully paid for all
services or property provided by CDS.
b. Except for claims arising out of the breach of this Agreement, and
upon the receipt by CDS of the full Settlement Payment, Intraop, for and on
behalf of itself and the Intraop Affiliated Parties, does hereby release
and forever discharge CDS and the CDS Affiliated Parties of and from any
and all claims (monetary or otherwise), debts, liabilities, liquidated
damages, costs, actions, judgments, demands, obligations, contracts, suits,
expenses, losses, attorney's fees, damages and causes of action of any kind
or nature, including claims for indemnity or contribution, arising out of
or related to the MSA or the Other Agreements and the performance or
non-performance of the obligations of CDS thereunder, directly or
indirectly, which Intraop may now or hereafter have or claim to have
against CDS, including without limitation the Intraop Claims. Upon receipt
by CDS of the full Settlement Payment, Intraop does hereby acknowledge that
CDS has no remaining obligations pursuant to the MSA and Other Agreements,
including any obligations regarding latent defects or warranty obligations.
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7. Waiver of California Civil Code section 1542. In addition to the
specific and express releases set forth herein, each Party acknowledges that
there is a risk that, subsequent to the execution of this Agreement, it may
incur, suffer or sustain injury, loss, damage, costs, attorneys' fees, expenses
or any of these, which are directly caused by or connected with the matters
referred to in paragraph 6, and which are unknown and unanticipated at the time
this Agreement is signed, and which are not presently capable of being
ascertained. Each Party further acknowledges that there is a risk that such
damages as are known may become more serious than any of them now expects or
anticipates. Nevertheless, each Party acknowledges that this Agreement has been
negotiated and agreed upon in light of those risks and each of them hereby
expressly waives all rights each may have in any such unknown claims and assumes
the risks that the facts and law pertaining to this dispute may change or be
different than it is now known to each said Party, except as specifically
otherwise provided in this Agreement. In doing so, each Party has had the
benefit of counsel, and has been advised of, understands, and knowingly and
specifically waives their rights under California Civil Code Section 1542 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.
8. Cooperation. The Parties will execute all such further and additional
documents as shall be reasonable, convenient, necessary, advisable, appropriate
or desirable, and shall take or cause to be taken such other acts and actions as
may be reasonably requested by any Party, to more fully effectuate or otherwise
carry out the provisions of this Agreement.
9. Representations and Warranties of CDS. All of the following
representations and warranties made by CDS on behalf of itself, its
representatives, heirs, executors, administrators, trustees, predecessors
(including, without limitation, CDS Group Corporation, a Delaware corporation),
successors, affiliates (including, without limitation, C.D.S. Engineering, Inc.,
a California corporation), subrogors, subrogees, lessees, lessors, grantees,
assignees, assignors, subsidiaries, agents, employees, servants, owners, alter
egos, attorneys, general partners, limited partners, and representatives, are
deemed to be continuing warranties and representations, and shall survive the
execution and delivery of this Agreement. Such representations and warranties
and each of them form a principal inducement for Intraop entering into this
Agreement, and are as follows:
a. This Agreement has been duly executed and delivered by CDS and is
the valid and binding agreement of CDS, enforceable against CDS in
accordance with its terms. Specifically, this Agreement has been or shall
be approved by any and all corporate boards of directors, management
boards, shareholders, members, partners or principals of CDS whose approval
is required to affect this Agreement and bind CDS to the obligations set
forth herein. CDS has the ability to enter into this Agreement and to
consummate the transactions provided for herein. The person whose signature
is set forth below for CDS: (i) has full authority to execute this
Agreement on behalf of CDS; and (ii) such person is acting within the
course and scope of such authority in executing this Agreement;
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b. No other person is required to consent to CDS's execution and
delivery of this Agreement;
c. The execution and delivery of this Agreement will not result in the
breach of any contract, agreement, commitment, indenture, mortgage, pledge
agreement, note, bond, license, or other instrument or any obligation to
which CDS is now a party, or by which any of the properties or assets of
CDS may be bound or affected, or constitute a violation by CDS of any law,
rule or regulation, of any administrative agency or governmental body, or
any order, writ, injunction or decree of any court, administrative agency,
or governmental body;
d. None of the representations or warranties of CDS under this
Agreement contains or will contain any untrue statement of a material fact,
or omits or will omit any fact necessary to make the statements herein or
therein not misleading;
e. CDS is the sole legal and beneficial owner of the claims released
pursuant to paragraphs 6 and 7, and no other person or entity has any
ownership or equitable interest therein. CDS has not heretofore assigned or
transferred or purported to assign or transfer, to any person or entity,
any claims released by CDS in this Agreement;
f. As to matters relating to its financial condition including any
effect thereon relating to this Agreement: A) there are no cases or
proceedings pending under the United States Bankruptcy Code or any other
similar state or federal insolvency, reorganization or receivership laws
involving any of CDS or of the CDS Affiliated Parties; B) none of CDS or
any of the CDS Affiliated Parties has any reason to seek relief under the
United States Bankruptcy Code or any other similar state or federal
insolvency, reorganization, receivership or similar laws; C) none of CDS or
any of the CDS Affiliated Parties has any present intention to seek relief
in the future under the United States Bankruptcy Code or any other similar
state or federal insolvency, reorganization, receivership or similar laws;
D) none of CDS or any of the CDS Affiliated Parties is insolvent, as
defined in the United States Bankruptcy Code or any applicable state or
federal statute, nor will any of CDS or any of the CDS Affiliated Parties
be rendered insolvent by the execution, delivery and performance of this
Agreement; E) upon the performance of the obligations under this Agreement,
each of CDS and any of the CDS Affiliated Parties will have the financial
wherewithal to pay its debts as and when they become due; F) none of CDS or
any of the CDS Affiliated Parties intends to, nor believes that it will,
incur debts beyond its ability to pay such debts as they mature; and G)
none of CDS or any of the CDS Affiliated Parties has now nor will have
unreasonably small capital to conduct its business after the execution of
this Agreement and the performance of its obligations under this Agreement;
g. CDS has good and marketable title to the Components as described in
Attachment B, free and clear of any and all mortgage, pledge, lien,
encumbrance, charge or other security interest (as to any, a "Security
Interest"), or any restriction on transfer; and
h. Neither CDS nor any CDS Affiliated Party, nor any of its
subcontractors, vendors, suppliers, service providers, creditors,
guarantors, lenders, bondholders, equityholders, directors, officers,
employees, representatives, agents or any other third party with claims
against CDS or any CDS Affiliated Party, has any Security Interest or any
claim affecting the Intraop Property described in Attachment A or any
restriction on transfer thereof.
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10. Representations and Warranties of Intraop. All of the following
representations and warranties made by Intraop on behalf of itself, its
representatives, heirs, executors, administrators, trustees, predecessors,
successors, affiliates, subrogors, subrogees, lessees, lessors, grantees,
assignees, assignors, subsidiaries, agents, employees, servants, owners, alter
egos, attorneys, general partners, limited partners, and representatives, are
deemed to be continuing warranties and representations, and shall survive the
execution and delivery of this Agreement. Such representations and warranties
and each of them form a principal inducement for CDS entering into this
Agreement, and are as follows:
a. This Agreement has been duly executed and delivered by Intraop and
is the valid and binding agreement of Intraop, enforceable against Intraop
in accordance with its terms. Specifically, this Agreement has been or
shall be approved by any and all corporate boards of directors, management
boards, shareholders, members, partners or principals of Intraop whose
approval is required to affect this Agreement and bind Intraop to the
obligations set forth herein. Intraop has the ability to enter into this
Agreement and to consummate the transactions provided for herein. The
person whose signature is set forth below for Intraop: (i) has full
authority to execute this Agreement on behalf of Intraop; and (ii) such
person is acting within the course and scope of such authority in executing
this Agreement;
b. No other person is required to consent to Intraop's execution and
delivery of this Agreement;
c. The execution and delivery of this Agreement will not result in the
breach of any contract, agreement, commitment, indenture, mortgage, pledge
agreement, note, bond, license, or other instrument or any obligation to
which Intraop is now a party, or by which any of the properties or assets
of Intraop may be bound or affected, or constitute a violation by Intraop
of any law, rule or regulation, of any administrative agency or
governmental body, or any order, writ, injunction or decree of any court,
administrative agency, or governmental body;
d. None of the representations or warranties of Intraop under this
Agreement contains or will contain any untrue statement of a material fact,
or omits or will omit any fact necessary to make the statements herein or
therein not misleading;
e. Intraop is the sole legal and beneficial owner of the claims
released pursuant to paragraphs 6 and 7, and no other person or entity has
any ownership or equitable interest therein. Intraop has not heretofore
assigned or transferred or purported to assign or transfer, to any person
or entity, any claims released by Intraop in this Agreement; and
f. As to matters relating to its financial condition including any
effect thereon relating to this Agreement: A) there are no cases or
proceedings pending under the United States Bankruptcy Code or any other
similar state or federal insolvency, reorganization or receivership laws
involving Intraop; B) Intraop has no reason to seek relief under the United
States Bankruptcy Code or any other similar state or federal insolvency,
reorganization, receivership or similar laws; C) Intraop has no present
intention to seek relief in the future under the United States Bankruptcy
Code or any other similar state or federal insolvency, reorganization,
receivership or similar laws; D) Intraop is not insolvent, as defined in
the United States Bankruptcy Code or any applicable state or federal
statute, nor will Intraop be rendered insolvent by the execution, delivery
and performance of this Agreement; E) upon the performance of the
obligations under this Agreement, Intraop will have the financial
wherewithal to pay its debts as and when they become due; F) Intraop
neither intends to, nor believes that it will, incur debts beyond its
ability to pay such debts as they mature; and G) Intraop neither has now
nor will have unreasonably small capital to conduct its business after the
execution of this Agreement and the performance of its obligations under
this Agreement.
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11. Indemnity. Each Party hereto does hereby agree to defend, indemnify and
hold harmless the other Party from and against any and all costs, damages,
claims, liabilities or expenses (including reasonable attorneys' fees), arising
from or resulting from any breach of the Party's representations, warranties or
covenants under this Agreement.
12. Costs and Expenses. Each party shall bear its own fees, costs and any
other expenses (including attorney's fees or consultant's fees) relating to or
incurred in connection with this Agreement or the negotiations leading up to
this Agreement.
13. No Admission of Liability. This Agreement does not constitute, nor
shall it be construed as, an admission by either Party of the truth or validity
of any real or potential claims, or any defenses, asserted or which could be
asserted by either of the Parties.
14. Successors and Assigns. This Agreement and the obligations undertaken
herein shall be binding upon and shall inure to the benefit of the successors,
or assigns, or each of the Parties hereto, including their respective Affiliated
Parties, and each of them, and all other persons, firms, corporations,
associations, partnerships, or other entities whenever the context so permits.
15. Reinstatement of Intraop Claims. Subject to applicable law, should any
form of state or federal insolvency or bankruptcy proceedings be instituted at
any time involving CDS or any of the CDS Affiliated Parties, as a result of
which, Intraop is compelled to disgorge all or a portion of the Intraop Property
and/or Components described respectively in Attachments A and B, then in that
event, the release set forth in paragraphs 6 and 7 of this Agreement shall be
void ab initio, and Intraop shall be entitled to assert the full amount of any
and all Intraop Claims which it may have against CDS, increased by any portion
of the Settlement Payment actually paid to CDS under this Agreement, in such
state or federal proceedings. In the event the foregoing sentence is adjudicated
to be invalid, void or unenforceable for any reason whatsoever, Intraop and CDS
agree that, notwithstanding any provision of this Agreement to the contrary, at
the option of Intraop, its rights, obligations and interests existing prior to
the date of this Agreement, including without limitation relating to the Intraop
Claims, shall be reinstated to the extent that a court of competent jurisdiction
shall determine that (1) the transfer of any of the Intraop Property and/or the
Components, described respectively in Attachments A and B hereto, was a voidable
preferential transfer or a fraudulent transfer or a fraudulent conveyance under
state or federal law or (2) for any other reason, such transfer is rescinded,
deemed to be rescinded or an amount is determined to be payable by Intraop by
virtue thereof to CDS or its representatives, successors, bankruptcy estate or
federal or state receiver. For avoidance of doubt, the invalidation, declaration
of fraudulent conveyance or preferential transfer, set aside, requirement of
return or repayment to a trustee, receiver, debtor-in-possession or any other
party under any bankruptcy law, state or federal, common law or equitable cause,
relating to the Intraop Property and/or Components described in Attachments A
and B respectively, shall be a material breach of this Agreement by CDS, in
which case Intraop shall have no obligation to make any remaining Settlement
Payment, and Intraop shall have a right to pursue its remedies under law and
equity for any and all Intraop Claims reinstated hereunder, together with any
portion of the Settlement Payment already paid, as provided in this paragraph
15.
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16. Injunctive Relief. Because any breach or threatened breach of this
Agreement by either Party would result in continuing material and irreparable
harm to the other Party, and because it would be impossible to establish the
full monetary value of such damage, either Party shall be entitled to injunctive
relief in its discretion, in the event of a breach or threatened breach of this
Agreement by the other Party or any member thereof. Injunctive relief shall be
in addition to any other remedy that may be available to either Party.
17. Choice of Law. This Agreement is made and entered into in the State of
California, and this Agreement and all rights, remedies, or obligations provided
for herein, shall be construed and enforced in accordance with the laws of the
State of California, without reference to the choice of law principles thereof.
18. Integration. This Agreement contains the entire understanding and
agreement between the Parties hereto with respect to the matters referred to
herein. No other representations, covenants, undertakings, or other prior or
contemporaneous agreement, oral or written, respecting such matters, which are
not specifically incorporated herein, shall be deemed in any way to exist or
bind either of the Parties hereto.
19. Modification. This Agreement shall not be modified by any oral
representation made before or after the execution of this Agreement. All
modifications must be in writing and signed by the Parties, and each of them.
20. No Representations -- Independent Advice from Counsel. The Parties
hereto, and each of them, acknowledge that this Agreement is executed
voluntarily by each of them, without any duress or undue influence on the part
of or on behalf of any of them. Each Party hereto further acknowledges that it
has been represented in the negotiations for, and in the performance of, the
Agreement by counsel of its own choice that each has read the Agreement and had
it fully explained to each by such counsel, and that each is fully aware of the
contents of the Agreement and its legal effect. Each of the undersigned has read
the foregoing agreement and has consulted with its attorney(s) concerning its
contents and consequences.
21. Joint Preparation of this Agreement. The drafting and negotiating of
this Agreement has been participated in by each of the Parties and/or their
counsel, and for all purposes, this Agreement was drafted jointly by both
Parties.
22. Attorney's Fees. If any legal action or other legal proceeding relating
to this Agreement or any of the transactions contemplated by this Agreement or
the enforcement of any provision of any of this Agreement or any of the
transactions contemplated by this Agreement is brought against any Party hereto,
the prevailing party shall be entitled to recover reasonable attorneys' fees,
costs and disbursements (in addition to any other relief to which the prevailing
party may be entitled).
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23. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original if fully executed, as
shall photocopies of any such counterparts, and all of which shall constitute
one and the same instrument. Facsimile copies of signatures to this Agreement
shall be deemed an original signature.
24. Waiver. No breach of any portion, provision or any part of this
Agreement can be waived unless it is done in writing. Waiver of any one breach
shall not be deemed to be a waiver of any other breach of the same or other
portion, provisions, or part of this Agreement.
25. Severability. If one or more provisions of this Agreement are held by a
court of competent jurisdiction to be unenforceable under applicable law, the
court shall modify the unenforceable term(s) to the least extent necessary to
render the term(s) enforceable. In the event the court is unable to so modify
the unenforceable term(s), the Parties agree to renegotiate such provision(s) in
good faith so as to become enforceable while hewing as closely as possible to
the original intent. In the event that the Parties cannot reach a mutually
agreeable and enforceable replacement for such provision(s), then each such
provision or part thereof shall be severed from the remaining provisions and
parts of this Agreement and shall not affect the validity or enforceability of
such remaining provisions or parts of this Agreement.
26. Captions/Headings. The titles, captions, and headings contained in this
Agreement are inserted only as a matter of convenience and for reference, and in
no way define, limit, extend, or describe the scope of this Agreement or the
intent of any portion, provision, or part of this Agreement.
27. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by
facsimile, by overnight delivery using a nationally-recognized courier or by
certified mail, to each other Party at the addresses first set forth above.
IN WITNESS WHEREOF, CDS AND INTRAOP have executed this Settlement and
Mutual Release Agreement, effective as of the date first above written.
INTRAOP MEDICAL CORPORATION C.D.S. ENGINEERING, LLC
By: /s/ ▇.▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Title: CFO By: President
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