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Exhibit 10.31
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FINAL SETTLEMENT AGREEMENT AND MUTUAL RELEASE
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This Agreement is made and entered into effective July 2, 2007,
between DLA
Piper US LLP ("DLA Piper"), formerly known as DLA Piper Rudnick
Gray Cary US
LLP, and Intraop Medical Corporation ("Intraop") (DLP Piper and
Intraop
collectively referred to as "the Parties").
RECITALS
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1. DLA Piper performed securities and corporate legal services
to
Intraop of which $455,797 in fees and costs advanced remain
unpaid. A dispute
arose between the Parties concerning the amount of attorneys'
fees that Intraop
should pay to DLA Piper for the services performed by DLA Piper
(the disputes of
the Parties are hereafter referred to as the "Claims"). The
Parties now desire
to settle the Claims. In accordance with this desire and in
consideration of the
mutual promises made in this Agreement, the Parties agree as
follows:
OBLIGATIONS OF THE PARTIES
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2. Intraop has agreed to issue to DLA Piper a warrant to
purchase
400,000 shares of Intraop common stock and to pay to DLA Piper
the total sum of
$228,000 (two hundred and twenty-eight thousand dollars) under
the following
schedule: Six equal monthly payments of $38,000 (thirty eight
thousand dollars)
each, for six months beginning with a first payment on the
execution of this
Agreement and on the fifteenth day of each succeeding month
thereafter with
payment in full to occur no later than November 15, 2007.
3. On the execution of this Agreement, Intraop shall issue to
DLA
Piper a warrant entitling DLA Piper to purchase 400,000 shares
of Intraop common
stock with a per share exercise price equal to $.45 per share
(the "New
Warrant").
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The form of the warrant is attached hereto as Exhibit B and will
be executed and
delivered on execution of this Settlement Agreement.
a. Intraop will register the New Warrant on the next
registration statement filed with the SEC. The registration of
the shares
underlying the New Warrant shall be maintained effective for two
years from
their date of issuance.
b. DLA Piper will agree to abide by the terms and
conditions of Intraop's current Lock-Up Agreement, a copy of
which is attached
hereto, marked Exhibit C, with respect to the New Warrant.
c. This Agreement is subject to, with regard to the
issuance of the New Warrant, the approval of all Intraop's
senior and
convertible debenture investors.
d. Intraop shall immediately cancel the currently
outstanding Warrant #C-37 dated October 27, 2003, to purchase
150,000 shares of
common stock of Intraop Medical, Inc. held by DLA Piper and DLA
Piper will
surrender Warrant #37 at the closing for cancellation.
MUTUAL GENERAL RELEASE
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4. The performance of the obligations set forth in this
Agreement
shall constitute consideration for the release of claims set
forth in this
Section.
5. Except with respect to the obligations set forth in this
Agreement, the Parties shall, for themselves and their
respective legal
successors and assigns release and forever discharge each other
and their
respective shareholders, partners, directors, officers,
employees, agents,
attorneys, legal successors and assigns of and from any and all
claims, demands,
damages, debts, liabilities, accounts, reckonings, obligations,
costs, expenses,
liens, actions and causes of action of every kind and nature
whether now known
or unknown, suspected or unsuspected, which either now has, owns
or holds or at
any time before ever owned or held or could, shall or may in the
future have,
own or hold against the other based upon or arising out of any
matter, cause,
fact, thing, act, omission or any of the Claims occurring or
existing at any
time up to and including the effective date of this Agreement
(collectively the
"Released Matters").
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6. It is the intention of the Parties in executing this
Agreement
and in paying and receiving the consideration set forth in this
Agreement that
this Agreement shall be effective as a full and final accord and
satisfaction
and mutual general release of and from all Released Matters.
7. In furtherance of the intentions set forth in this Agreement
each
of the Parties acknowledges that it is familiar with California
Civil Code
Section 1542 which provides as follows:
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW
OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING
THE
RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY
AFFECTED HIS OR
HER SETTLEMENT WITH THE DEBTOR.
Each of the Parties waives and relinquishes any rights or
benefits which it
has or may have under Section 1542 or any similar
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