EXHIBIT 10.63
TERMINATION,
SETTLEMENT AND RELEASE AGREEMENT
This Termination,
Settlement and Release Agreement (this “Agreement”) is
entered into as of December 14, 2004 by and between Identix
Incorporated, a Delaware corporation with offices at 5600 Rowland
Rd., Minnetonka, MN 55341 (“Identix”), and Vasona
Business Park, a California partnership having a principal place of
business at 718 University Avenue, Suite #217, Los Gatos, CA 95032
(“VBP”).
WHEREAS, Identix and VBP
are parties to a certain lease dated December 8, 2000 between
Identix, as lessee, and VBP, as lessor (the
“Lease”);
WHEREAS, Identix and VBP
desire to terminate the Lease and except as expressly provided in
Sections 2 (f) and (g) of this Agreement, enter into a
full and complete compromise, settlement and release of their
respective claims and obligations directly or indirectly related to
the Lease and the premises described therein;
NOW, THEREFORE, in
consideration of the mutual covenants, promises and obligations set
forth herein, Identix and VBP agree as follows:
1. Definitions . In
this Agreement:
(a) “Identix” means
Identix Incorporated, a Delaware corporation, and its successors,
assigns, businesses, affiliates, subsidiaries, divisions, parent
companies, partnerships, limited partnerships, partners,
predecessors, officers, directors, trustees, conservators,
employees, agents, contractors, representatives, shareholders,
stockholders, members and attorneys and all persons or entities
claiming through any of the foregoing who are in privity with them
or any of them and all other persons, firms, entities, and
corporations whatsoever to whom and for whom whose conduct Identix
may be liable.
(b) “Lease” means
that certain lease (and addendum thereto) dated December 8,
2000 between Identix, as lessee, and VBP, as lessor, and any and
all other agreements, contracts, commitments, understandings or
obligations between the Parties related thereto.
(c) “Party” or
“Parties” means either Identix or VBP, or both of
Identix and VBP, as the case may be.
(d) “Premises” shall
have the meaning ascribed thereto in the Lease.
(e) “VBP” means
Vasona Business Park, a California partnership and any of its
successors, assigns, businesses, affiliates, subsidiaries,
divisions, parent companies, partnerships, limited partnerships,
partners, predecessors, officers, directors, trustees,
conservators, employees, agents, contractors, representatives,
shareholders, stockholders, members and attorneys and all persons
or entities claiming through any of the foregoing who are in
privity with them or any of them and all other persons, firms,
entities, and corporations whatsoever to whom and for whom whose
conduct VBP may be liable.
2. Termination,
Settlement and Release.
(a) Concurrently with the
execution of this Agreement by both Parties, the Lease, and any and
all of the Parties’ respective obligations arising out of or
related to the Lease, shall immediately terminate and be of no
further force or effect. Notwithstanding the foregoing, the
parties’ respective obligations set forth in paragraph number
2 (relating to Hazardous Substance Liability) of the addendum to
the Lease dated December 8, 2000 by and between VBP and
Identix shall survive termination of the Lease and shall remain in
full force and effect. The parties agree that the failure of
Identix to deliver the Termination Fee, as defined in
Section 2 (b) below, on or before 5:00 pm Pacific Time on
January 7, 2005, shall result in the termination of this
Agreement, in which event this Agreement shall be deemed null and
void and the Lease shall be deemed not to have been terminated, but
instead shall be deemed to have remained in full force and effect
as if the parties had not entered into this Agreement.
(b) On or after Tuesday,
January 4, 2005, but no later than 5:00 p.m. Pacific Time on
Friday, January 7, 2005, Identix shall pay VBP $5,250,000 (the
“Termination Fee”) in immediately available funds by
either Identix company check or by wire transfer, at the sole
discretion of Identix. If paid by company check, the Termination
Fee shall be delivered to VBP by hand or overnight courier at
VBP’s principal place of business address referenced in the
first paragraph of this Agreement. If the Termination Fee is paid
by wire transfer, the funds shall be wired to VBP’s bank
account as follows:
Bank:
Citibank N.A.
Location: Los Gatos, California
Account Owner: Vasona Business Park
Account Number: 601206154
ABA/Routing Number: 321171184
(c) Following timely receipt of
the Termination Fee, VBP will use best efforts, and will forthwith
sign and deliver such consents or instructions, as are reasonably
necessary to cause the immediate termination of that certain
Identix Letter of Credit Number SVB021S4276 in the amount of
$187,844.00 issued by Silicon Valley Bank.
(d) Concurrently with the
termination of the Lease, Identix shall surrender to VBP possession
of, and VBP shall accept from Identix possession of, the Premises
in an “AS IS” where is condition, subject only to the
parties respective rights and obligations arising under paragraph
number 2 (relating to Hazardous Substance Liability) of the
addendum to the Lease dated December 8, 2000 by and between
VBP and Identix, which respective rights and obligations shall
survive termination of the Lease. Concurrently with the termination
of the Lease, Identix hereby assigns and transfers to VBP, and VBP
hereby accepts from Identix, all rights, title and interest Identix
may have in all personal property located in or on the Premises,
including with
