EXHIBIT 10.16
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
THIS SETTLEMENT AGREEMENT AND MUTUAL RELEASE (this "AGREEMENT") is
made
and entered into this 2nd day of June, 2005, by and among Patron Systems,
Inc.
(the "COMPANY"),
Patrick J.
Allin, an Individual ("ALLIN"), and The Allin
Dynastic Trust ("ALLIN TRUST" and together with Allin, the "ALLIN PARTIES" and
each an "ALLIN PARTY").
RECITALS
A. On
October 2, 2002, Allin entered into an Employment Agreement
("EMPLOYMENT AGREEMENT") with the Company.
B.
Allin became the Company's Chief Executive Officer and a member of the
Company's Board of
Directors ("BOARD") on October 10, 2002. Allin
subsequently received
6,250,000 shares of
the common stock, par value
$0.01 per share, of the Company ("COMMON STOCK"). The Allin Trust also
subsequently received
1,250,000 shares of Common Stock. Subsequent to
the initial
distribution
of the Common
Stock to Allin and the
Allin
Trust, Allin
transferred some of
his holdings in the Company's Common
Stock to the Allin Trust, and the Allin Trust sold some of its
holdings
in the Company's Common Stock. Currently, Allin holds 2,800,000 shares
of the Company's Common Stock, not including 1,000,000 shares held by
Allin which are committed to be tendered to Sherleigh Associates Inc.,
Profit Sharing
Plan (the "SHERLEIGH SHARES") as further set forth
herein. The Allin
Trust holds
approximately
2,400,000 shares of
the
Company's Common Stock. The Company acknowledges that all of the
shares
held by Allin and the Allin Trust were validly issued, and that both
Allin and
the Allin Trust have satisfied any and all
conditions/restrictions that would prevent the shares from being
freely
tradable. The
Company seeks to purchase some of the Allin Parties'
holdings in the Company's Common Stock.
C. On
July 14, 2002,
October 1, 2002 and
October 11, 2002,
the Company
issued Promissory Notes (collectively, the "ALLIN NOTES") to Allin in
the principal amounts of $75,000, $50,000 and $21,000,
respectively, in
consideration of sums loaned to the Company by Allin.
D. On
January 21, 2004,
Allin resigned as the Company's Chief Executive
Officer and a member of the Board.
E. On
July 19, 2004, Allin
made demand for payment under the Allin Notes
(the "ALLIN NOTES
CLAIMS"). The Company
did not repay the Allin Notes
within 24 hours of demand for payment. On March 1, 2005, Allin filed
a
complaint in the Circuit Court of Cook County, Illinois, Law Division,
entitled PATRICK J.
ALLIN V. PATRON
SYSTEMS, INC.,
05 L 2379,
that
seeks the payment of all principal, interest and legal fees due
under
the Allin Notes.
F.
Allin has previously
informed the Company of his claims for sums
he
believes are
due and owing to him pursuant to the terms of his
Employment Agreement,
<PAGE>
as well as $34,136.00 which Allin claims is due and owing for
unreimbursed
expenses
incurred by
Allin on behalf of Patron
(collectively the "EMPLOYMENT CLAIMS").
G. On
December 17,
2004, Allin, through legal counsel, informed the
Company that Allin was seeking indemnification, pursuant to Article VI
of Patron's Amended
and Restated By-laws, from the Company for the
value of the Sherleigh
Shares which Allin has agreed to tender to
Sherleigh Associates
Inc., Profit Sharing Plan in settlement of a
lawsuit entitled
SHERLEIGH ASSOCIATES INC., PROFIT SHARING PLAN V.
PATRON SYSTEMS,
INC, PATRICK J. ALLIN AND ROBERT E. YAW,
04 CV 907
(S.D.N.Y.) (the "SHERLEIGH SETTLEMENT CLAIMS").
H.
Pursuant to Article VI of Patron's Amended and Restated By-laws,
Allin
has also sought
indemnification from
Patron for the
reimbursement of
legal fees incurred in
connection with a
proceeding filed by
Richard
Linting under the
Illinois Wage Payment
and Collection
Act with the
Illinois Department of Labor entitled LINTING V. PATRON SYSTEMS,
INC.,
IDOL WC. No. 03-006547 (the "LINTING PROCEEDING"), an investigation of
the Company by the United States Securities and Exchange Commission
(the "SEC
INVESTIGATION") and
the lawsuit entitled
SHERLEIGH PROFIT
SHARING PLAN V. PATRON
SYSTEMS, INC, PATRICK J. ALLIN AND ROBERT E.
YAW, 04 CV 907 (S.D.N.Y.) (the "SHERLEIGH LITIGATION"), all of which
arise out of Allin's employment with the Company. By letter dated
April
28, 2004, the Company acknowledged its indemnification obligations
with
respect to the SEC Investigation and Sherleigh Litigation,
and by this
Agreement also acknowledges its obligations to pay Allin for legal
fees
incurred in
connection
with the Linting
Proceeding.
Allin has also
incurred additional
legal fees in
connection
with his attempts to
receive
indemnification from
the Company with
respect to the Linting
Proceeding, the SEC Investigation and the Sherleigh Litigation,
amounts
incurred in connection with the Employment Claims and the Allin Notes,
and past attempts to settle all disputes between Allin and the Company
(all legal fees and costs that Allin claims are due and owing to
Allin
by the Company are collectively referred to herein as the
"REIMBURSEMENT
CLAIMS"). The current
amount due for the Reimbursement
Claims is
approximately
$235,000.00. The
Company acknowledges
that
these amounts are reasonable. To date, the Company has paid
$25,000.00
towards the Reimbursement Claims.
I. The
parties desire to
enter into a final and binding settlement with
respect to all claims.
NOW, THEREFORE,
in consideration of
the premises, and for
other good
and valuable
consideration
the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1.
PAYMENT TO
ALLIN. The Company shall pay to Allin, in
settlement of the
Allin Notes Claims, Employment Claims,
Sherleigh Settlement
Claims and Reimbursement Claims, an
aggregate payment of
One Million One Hundred Fifty Thousand
Dollars ($1,150,000) as follows:
2
<PAGE>
(a) Two
Hundred Thousand
Dollars ($200,000)
payable by
check or wire transfer of immediately available funds
upon the execution of this Agreement (the "EXECUTION
SETTLEMENT AMOUNT").
(b) The lesser
of (i) 14% of the proceeds of the Phase II
Transaction, as defined in that certain Non Exclusive
Engagement Agreement,
dated as of January
19, 2005,
between the Company and Laidlaw & Company (UK) Ltd.,
or any
other
similar
Company
financing
("FOLLOW-ON-FINANCING") or (ii) Nine Hundred Fifty
Thousand Dollars ($950,000) (the "REMAINDER AMOUNT"),
payable by check
or wire transfer of immediately
available funds
upon the consummation of the
Follow-On-Financing
(the payment
of the amount the
Company is obligated
to pay pursuant to this Section
1(b) is hereafter
referred to as the "SECOND TRANCHE
PAYMENT").
Consummation of the
Follow-On-Financing
for purposes
of this Agreement shall be deemed to
have occurred
at such time that
funds are released
from escrow
upon
the first closing of the
Follow-On-Financing.
The Company shall provide Allin
and the Allin Trust
notice within 24 hours after
consummation of the Follow-On-Financing. The Company
further agrees to
provide Allin and the
Allin Trust
all
information on the terms of the
Follow-On-Financing or any other information
requested by Allin
and/or the Allin
Trust that may
impact any provision in this Agreement. The direction
letter authorizing
the release of funds
from escrow
upon the first
closing of the Follow-On-Financing
shall designate
Allin
as a recipient of the
applicable amount due
under this Section
1(b) from
the funds released
from escrow in the
first closing
of the Follow-On-Financing, and all amounts due under
this Section 1(b) shall be paid, in any event, within
two (2)
days
of the consummation of the
Follow-On-Financing.
(c) To the
extent that the Second Tranche Payment is less
than the Remainder Amount, the Company shall
immediately
issue a promissory note ("REMAINDER
AMOUNT NOTE")
in favor of Allin in the principal
amount of the difference between the Remainder Amount
and the Second Tranche Payment, with a maturity date
of one
year
from
the consummation of the
Follow-On-Financing and bearing interest at a rate of
8% per annum,
with interest payments to be paid,
during the
term of the Remainder Amount Note,
quarterly on the
last day of the
month in August,
November, February and May. A copy of the form of the
Remainder Amount Note
that would be effective if the
Second Tranche
Payment is less than the Remainder
Amount is attached hereto as Exhibit A.
2.
REMOVAL OF
RESTRICTIVE
LEGEND AND SALE OF ALLIN PARTIES'
SHARES. Allin
currently owns 3,800,000 shares of Common Stock
("ALLIN'S
SHARES") and
the Allin Trust currently owns
approximately
2,400,000 shares of
Common Stock ("ALLIN TRUST
SHARES" and
together with the Allin Shares, the "ALLIN
PARTIES' SHARES").
Allin and the Allin Trust agree to sell to
the Company, 4,000,000 shares of Common Stock as follows:
(A) REMOVAL OF
RESTRICTIVE LEGEND. Upon execution of this
Agreement, the Company
shall undertake all necessary
actions to remove the
restrictive legend on
any (or
all) of the Allin Trust Shares as requested by either
Allin Party so that any such shares can become freely
tradable, subject to the terms and conditions of this
Agreement.
(B) INITIAL
PURCHASE OF COMMON SHARES. Upon execution of
this Agreement,
the Company shall
agree to purchase
one million
of Allin's
Shares and one million of
Allin Trust
Shares
(collectively
the "INITIAL
SHARES") through
the issuance to each of Allin and
the Allin Trust, as applicable, of a promissory note
(collectively the
"SHARE NOTES")
in the principal
amount of Eight Hundred Thousand Dollars ($800,000)
with a maturity
date of June 30,
2006 and bearing
interest at a rate of
8% per annum. During
the term
of the Share Notes,
interest payments
must be paid
quarterly by the Company on the last day of the month
in August, November,
February and May. A copy of the
form of the Share Notes is attached hereto as Exhibit
B. The Initial Shares will be held in escrow
("ESCROW") by
a mutually agreed to designee
("ESCROWEE") with the Company paying all fees for the
escrow services in advance. A copy of the form of the
Escrow Agreement
agreed to by the
parties hereto is
attached hereto as
Exhibit C, and the parties hereto
agree to act in good
faith to make modifications
reasonably requested
by the Escrowee (the final
Escrow Agreement
which shall be executed by the
parties hereto and the Escrowee shall hereinafter be
referred to as the
"ESCROW AGREEMENT"). The Allin
Parties shall deposit the Initial Shares into Escrow
with the Escrowee by 5:00 p.m. Central Daylight Time
on June 3, 2005 or within 24 hours after the
execution of
the Escrow Agreement. The Escrow
Agreement shall
provide that the Escrowee shall
deliver the Initial Shares to the Company on July 20,
2006, or on any
earlier date provided for in the
Escrow Agreement,
provided that the Company has made
all payments
due and owing under the terms of the
Share Notes.
In the event
the Follow-On-Financing
shall have occurred
and, subsequent thereto, the
Company fails to fully satisfy any of its obligations
under the Share
Notes, and such failure shall be
continuing for a
period of 5 days after written
notice thereof is received by the Company from either
Allin and/or the Allin Trust, Allin and/or the Allin
Trust may either (1) demand that the Initial Shares
be immediately
returned to Allin and the Allin Trust
in full satisfaction
of any then remaining
amounts
owed by the Company
under the Share Notes,
in which
instance the Company will lose all rights to purchase
the Initial Shares, or (2) commence litigation within
the applicable statute
of limitations and/or
repose
seeking payment of outstanding amounts and damages
from the Company for breach of this Agreement and the
Share Notes, in which
case the Company shall
retain
the Initial Shares, as applicable.
(C) ADDITIONAL
PURCHASE OF COMMON SHARES. Subject to the
conditions as set
forth herein in this Section 2(c),
the Company
shall, from net proceeds raised in
connection with the Follow-On Financing, purchase one
million Allin's
Shares and one million
Allin Trust
Shares (collectively
the "REMAINDER
SHARES"), at a
price equal to the
lesser of (a) $.50 per share or
(b) 90% of the issue price or conversion price, as
the case may be, of the security issued in the
Follow-On-Financing
(the lesser of (a) or
(b) shall
be hereinafter referred to as the "EXECUTION PRICE"),
provided however that in the event that the Execution
Price is less than $.50 per share, Allin and/or the
Allin Trust may, at their option, refuse to sell any
or all of the
Remainder Shares to
the Company. The
Company shall notify Allin and the Allin Trust, five
(5) days prior to the
commencement of the
Follow-On
Financing (the
"EXECUTION
PRICE NOTICE"), of the
applicable Execution
Price. In the event that the
Execution Price is
less than $.50 per
3
<PAGE>
share, Allin
and/or the Allin Trust
must advise the
Company, within
two (2) days of receipt of the
Execution Price
Notice, of the number of Remainder
Shares, if any,
such party will sell
to the Company
pursuant to the terms of this Section 2(c) (the "SALE
NOTICE"). The Company
shall thereafter
purchase the
Remainder Shares
listed in the Sale
Notice from net
proceeds
raised in
connection with the
Follow-On-Financing. The direction letter authorizing
the release
of funds from escrow upon the first
closing of the
Follow-On-Financing
shall designate
Allin as a recipient
of the applicable
amounts due
under this Section
2(c), if any,
from the proceeds
released
in the
first
closing
of
the
Follow-On-Financing,
and all amounts due
under this
Section 2(c) shall be paid, in any event, within two
(2) days
of
the
consummation of the
Follow-On-Financing.
3.
LOCK-UP AGREEMENT.
Each of Allin and the
Allin Trust agrees
not to sell any
shares of Common Stock prior to (i) the
consummation of the
Follow-On-Financing
and (ii) the shorter
of (a) the six-month period subsequent to the consummation
of
the
Follow-On-Financing,
and (b) the date on which the next
registration statement
filed by the Company becomes effective
with the Securities and Exchange Commission. The provisions of
Section 3(ii) shall be
binding upon Allin and the Allin Trust
in the event that,
notwithstanding
anything to the
contrary
herein, there shall have been a Follow-On Financing; PROVIDED,
however, in the event
that Allin and/or the Allin Trust shall
have Remainder
Shares
designated
for sale in the
Following-On-Financing
and the Company shall fail to purchase
such shares as
provided for in Section 2(c) hereof (or as
otherwise agreed by
Allin and/or the Allin
Trust as the case
may be), then,
in addition to any
other remedy to which
the
Allin Parties may be entitled, this Lock-Up provision shall no
longer be applicable to any Allin Parties' Shares. The
Sherleigh Shares are
not subject to the terms of this Section
3.
4. LATE
PAYMENTS; TERMINATION.
(A) LATE
PAYMENT.
In
the
event
that
the
Follow-On-Financing is
consummated
and the Company
shall default on the
payment of any amount due under
this Agreement
(including
amounts due under the
promissory notes
issued in connection herewith),
including, without
limitation, a default based on or
arising in
connection
with
any statutory or
regulatory
requirement, including,
without
limitation, the
requirements
of Section 160 of
the
Delaware General
Corporation Law, if such default is
not cured within five (5) days of written notice from
the Allin
Parties of such
default, the Company
will
be considered
in breach of this
Agreement and all
amounts due under this Agreement (including amounts
due under the
promissory notes
issued in connection
herewith) shall
automatically
be and become
immediately due
and payable, without additional
notice or demand, and
the Company will
confess to a
judgment against
the Company in a court of Allin's
choosing in Cook County, Illinois for all amounts due
and owing hereunder.
The Company further
agrees not
to assert such statutory or regulatory requirement as
a defense to any breach of this Agreement (including
the promissory notes issued in connection herewith).
(B)
TERMINATION. Unless otherwise agreed to in writing by
the parties to this Agreement, in the event that the
Follow-On-Financing is
not consummated on or
before
August 15,
2005 (the "TERMINATION DATE"), this
Agreement and all
4
<PAGE>
promissory notes
issued hereunder shall
be null and
void, and no party
hereto shall be able to rely on
any recitals,
assertions or
acknowledgements
made
herein; provided, however, that:
(i) Sections
4(b), 10, 11(i) and 11(d) shall
survive such termination;
(ii)
Allin shall have no obligation to return the
Execution Settlement Amount to the Company;
(iii) The
Company shall immediately pay all
interest due under the
Share Notes
through
and including the Termination Date; and
(iv)
Neither the
retention
of the Execution
Settlement
Amount pursuant
to Section
4(b)(ii), nor any other sums received by the
Allin Parties pursuant to Section 4(b)(iii),
shall be interpreted
as liquidated
damages
or as satisfying any
portion of the amounts
due
with respect to the Allin Notes Claims,
the Employment
Claims, the Reimbursement
Claims and/or
the Sherleigh Settlement
Claims.
5.
RELEASES.
(A) RELEASES
BY THE COMPANY. The
Company, on behalf of
itself and its
shareholders,
directors,
officers,
employees,
representatives,
successors and
assigns
(the
"COMPANY
RELEASING
PARTIES"),
hereby
unconditionally
releases the Allin Parties and their
respective
shareholders, members, directors,
officers,
employees,
representatives, heirs,
executors,
administrators,
successors,
assigns,
trustees,
beneficiaries and attorneys, as applicable
(the "ALLIN
RELEASEES"),
from any and all
claims,
demands, rights and causes of action of whatever kind
or nature ("CLAIMS"), whether known or unknown,
suspected or unsuspected, that the Company Releasing
Parties now
own or hold, or have at any time
previously owned or
held, or ever in the
future may
own or hold against
the Allin Releasees,
or any of
them, resulting from, arising out of or in any manner
relating to any act or omission occurring on or prior
to the date of this Agreement.
(B) RELEASES
BY THE ALLIN PARTIES. Each of the Allin
Parties, on behalf of himself, herself or itself and
his, her or its
respective
shareholders,
members,
directors,
officers, employees,
representatives,
heirs,
executors,
administrators, successors,
assigns, trustees,
beneficiaries and
attorneys, as
applicable (the "ALLIN
RELEASING PARTIES"),
hereby
unconditionally
releases the
Company
and its
shareholders, directors,
officers,
employees,
representatives, successors and assigns (the "COMPANY
RELEASEES") from any and all Claims, whether known or
unknown, suspected or unsuspected, including, without
limitation, the Allin
Notes Claims,
the Sherleigh
Settlement Claims,
the Employment Claims and the
Reimbursement
Claims, that
the Allin Releasing
Parties now
own or hold, or have at any time
previously owned or
held, or ever in the
future may
own or hold against the Company Releasees, or any of
them, resulting from, arising out of or in any manner
relating to any act or omission occurring on or prior
to the date of this Agreement.
5
<PAGE>
6.
DISMISSAL OF ACTIONS
OR COMPLAINTS.
Each of the
parties to
this Agreement
will dismiss any
action or complaint
now or
hereafter brought by
such party against
any other party to
this Agreement arising out of, resulting from or in any manner
relating to any matter released herein.
7. NO
ADMISSION OF LIABILITY. The parties acknowledge that this
Agreement is a compromise settlement of potential and existing
Claims, and that the execution of this
Agreement will not
be
deemed or construed to be an admission of any liability of any
party to this Agreement.
8.
REPRESENTATIONS AND WARRANTIES.
(A) BY ALL
PARTIES. Each of the
parties represents
and
warrants to the other
parties that such party has
made no assignment of any Claim being released under
this Agreement.
(B) BY THE
COMPANY. The Company
represents and
warrants
to the Allin
Parties that (i) the Company is a
corporation duly
organized, validly
existing and in
good standing
under
the laws of the State of
Delaware, and has the
requisite power and
authority
to execute, deliver and perform its obligations under
this Agreement;
(ii) the execution, delivery and
performance of this
Agreement by the Company have
been duly authorized by all requisite corporate
action and will not (A) result in a violation of the
Company's Articles of
Incorporation or
Bylaws, (B)
result in a violation of any applicable law, rule or
regulation, or
any material order, injunction,
judgment or decree
of any court or other
agency of
government, (C)
conflict with, result in a breach of
or constitute a
default under any agreement or other
obligation to which
the Company
is bound, or (D)
require any consent, approval, notification, waiver
or similar action
from any third
party; (iii) the
individuals executing
this Agreement on its behalf
have the requisite
power and authority to
do so and
(iv) this Agreement has been duly and validly
executed and delivered by the Company and constitutes
the legal,
valid and binding obligation of the
Company,
enforceable
against the
Company
in
accordance with
its terms, except to the extent
limited by
applicable
bankruptcy,
insolvency,
reorganization, moratorium or similar laws of general
application related to
the enforcement of
creditors
rights generally, and general principles of equity.
(C) BY THE
ALLIN PARTIES. Each of the Allin Parties,
jointly and severally, represents and warrants to the
Company that (i) such party has the requisite power
and authority
to execute, deliver and perform its
obligations under
this Agreement; (ii) such party
owns such party's
Allin Parties' Shares free and
clear of all liens,
security interests,
pledges or
other similar
interest or right
("LIENS") and upon
delivery to
the Company of such party's Allin
Parties' Shares,
accompanied
by duly executed
instruments of transfer by such party to the Company,
title to all of such party's Allin Parties' Shares
shall pass to the
Company, free and clear of all
Liens; (iii)
the Allin Parties' Shares are not
subject to any purchase option, call, right of first
refusal, subscription
or similar right under any
provision of any
contract to which such party is a
party or by or to
which such party or any of its
assets or properties
may be bound or
6
<PAGE>
subject; (iv) the execution, delivery and performance
of this Agreement by
such party (or the
individuals
executing this Agreement on behalf of any Allin Party
that is an entity) has
been duly authorized
by all
requisite action and will not (A) if such Allin Party
is an entity, result
in a violation of such entity's
charter documents,
(B) result in a
violation of any
applicable law, rule
or regulation, or any
material
order, injunction, judgment or decree of any court or
other agency of government, (C) conflict with, result
in a breach of or
constitute
a default under any
agreement or other
obligation
to which such Allin
Party is bound, or (D) require any consent, approval,
notification, waiver or similar action from any third
party; and (v)
this Agreement has been duly and
executed and
delivered by each Allin Party and
constitutes the legal,
valid and binding
obligation
of each Allin Party,
enforceable against
such Allin
Party in accordance
with its terms, except to the
extent limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws or general
application related to
the enforcement of
creditors
rights generally, and
general principles of
equity.
Notwithstanding
anything contained
in this Section
8(c), all parties agree that the Sherleigh Shares are
committed to be
tendered to Sherleigh Associates
Inc., Profit
Sharing Plan
pursuant to the terms
of
the settlement
of the Company's litigation with
Sherleigh Associates Inc., Profit Sharing Plan.
9.
CONFIDENTIALITY. With
the exceptions
provided for below, the
parties hereto
agree not to disseminate to any person or
entity, directly
or indirectly, copies of, or information
pertaining to the terms of, this Agreement. Any party not in
breach of this
provision shall be entitled to immediate
injunctive relief
against the breaching
party to enjoin
any
disclosure in breach
of the provisions
of this Section 9.
Nothing contained
herein shall
prohibit the parties
hereto
from disclosing
information pertaining
to this Agreement (a)
in the Company's
filings with the Securities and Exchange
Commission as required by the Securities Exchange Act of 1934,
as amended, (b) in the confidential information memoranda to
be provided
to investors in a bridge financing to be
consummated by the
Company in May and June, 2005 and to
investors in the Follow-On-Financing, (c) to any governmental
entity when
requested,
(d) pursuant to a lawfully issued
subpoena, (e) to a
court upon issuance of an appropriate
protective order in
the event of
litigation
involving the
parties hereto, (f) to the Company's provider of any executive
and/or organization
liability insurance policy (or similar
type of policy) and (g) to any professional advisor who agrees
to be bound by the terms and provisions of this Section 9.
In
the event that any party hereto is adjudged to have
breached
the provisions
of this Section 9,
such party will
reimburse
the
non-breaching
parties for
any and all reasonable
attorneys' fees
and costs incurred in connection with
obtaining the relief provided for in this Section 9.
10. TOLLING
OF CLAIMS. In the event that this Agreement is
terminated pursuant to
Section 4(b), the
period of time from
July 1, 2004 to and including the Termination Date shall not
be asserted,
plead or relied upon
by the Company
(including
any of its agents, assignees, successors, trustees,
officers,
agents, insurers or
employees),
in computing the
running of
time under any applicable statute of limitations,
statute of
repose, laches,
or any other time limitation (whether
equitable, statutory,
contractual or otherwise) in defense of
any claim,
lawsuit, action, administrative proceeding,
arbitration or other proceeding relating to, or arising from,
the Allin Notes
7
<PAGE>
Claims, the Employment
Claims, the
Reimbursement Claims
and
the Sherleigh Settlement Claims.
11.
MISCELLANEOUS.
(A)
CONSULTATION WITH
COUNSEL. This
Agreement has been
voluntarily and
knowingly executed by each party
hereto, after having
had an opportunity
to consult
with legal counsel.
(B)
SEVERABILITY. The
provisions of this
Agreement will
be deemed
severable
and the invalidity or
unenforceability of
any provision
hereof will not
affect the validity or
enforceability
of the other
provisions hereof;
PROVIDED that if any provision of
this Agreement,
as applied to any party or to any
circumstance,
is adjudged
by a court,
governmental
body, arbitrator or mediator not to be enforceable in
accordance with its terms, the parties agree that the
court , governmental
body, arbitrator or mediator
making such
determination
will have the power to
modify the provision in a manner consistent with its
objectives such
that it is
enforceable,
and/or to
delete specific words or phrases, and in its reduced
form, such provision
will then be
enforceable
and
will be enforced.
(C) TITLES AND
SUBTITLES. The section
headings contained
in this Agreement are inserted for convenience only,
and will not affect in
