Exhibit 10.46
SETTLEMENT AGREEMENT AND
RELEASE
THIS SETTLEMENT AGREEMENT AND RELEASE
(“Agreement”), dated as of August 28, 2008, is by and
among Material Technologies, Inc., a Delaware corporation
(“MaTech”) and Rubrica Anima Fondattivo (“Anima
Fondattivo”) (Anima Fondattivo shall be referred to as the
“Claimant”) (individually, a
“Party”).
RECITALS
WHEREAS, Claimants previously purchased directly from
MaTech shares of the restricted common stock of MaTech (the
“Common Stock”), and pursuant to such agreement, MaTech
agreed to certain registration rights, including filing a
registration statement registering the resale of the shares of
Common Stock by Claimant; and
WHEREAS, MaTech has not filed the required registration
statement, and has requested that Claimant waive all registration
rights arising from or related to the Common Stock, and Claimant
has agreed to such request subject to the terms hereof.
NOW THEREFORE, in consideration of the promises and respective
mutual agreements herein contained, it is agreed by and between the
Parties hereto as follows:
1.
Consideration . In consideration for the
Agreement, the receipt and adequacy of which are hereby
acknowledged, the Parties agree as follows:
1.1 Claimant
hereby waives any registration rights they may have with respect to
any shares of common stock of MaTech currently held, including the
Common Stock, and also hereby waives any default by MaTech under
its agreements with Claimant arising from or related to the
purchase by Claimant of the Common Stock;
1.2 Claimant
hereby agrees to return to MaTech, any and all shares of common
stock held by them, including the Common Stock, in exchange for an
equal number of newly issued shares of MaTech common stock (the
“Shares”) to be issued after completion of
MaTech’s proposed stock split;
1.4 Claimant
hereby agrees that any and all warrants currently held by Claimant
shall be canceled;
1.5 MaTech
hereby agrees to issue to Anima Fondattivo warrants to purchase
1,105,000 shares of MaTech common stock at $0.20 per share,
exercisable within 12 months of the date hereof;
1.6 MaTech
hereby agrees to issue to Anima warrants to purchase 1,105,000
shares of MaTech common stock at $0.20 per share (together with the
Anima Fondattivo warrants, the “Warrants”);
1.7 MaTech
hereby agrees, within 45 days, to file a Registration
Statement
with the
Securities and Exchange Commission registering the Shares and the
shares underlying the Warrants (the “Registration
Statement”) and to use best efforts to have the Registration
Statement declared effective, but if the 144 holding period
expires, MaTech can withdraw the Registration Statement;
and
2.
Mutual Release . Expressly conditioned upon
timely completion of the requirements set forth herein, the
Parties, each for themselves, their respective Boards of Directors,
officers, shareholders, assigns, employees, agents, predecessors,
heirs, executors, and administrators, successors, subsidiary
entities, former entities, attorneys, and any others claiming under
or through them, both past and present, do hereby release and
forever discharge each other, and each of the others' Boards of
Directors, officers, shareholders, assigns, employees, agents,
predecessors, successors, heirs, executors, and administrators,
subsidiary entities, former entities, attorneys, and all others
acting by, through, under, or in concert with the other, and each
of them, from any and all manner of action or actions, cause or
causes of action, in law or in equity, suits, debts, liens,
contracts (express, implied in fact, or implied by law),
agreements, promises, liabilities, claims, set offs, rights and
claims for indemnity and/or contribution, refunds, overpayments,
demands, damages, losses, costs, or expenses, of any nature
whatsoever, known or unknown, suspected or unsuspected, fixed or
contingent, which each now has or may hereafter have by reason of
any matter, cause, or thing whatsoever from the beginning of time
to the date hereof, including, without limiting the generality of
the foregoing, any matters that or might have been in any way
raised, by complaint, cross-complaint or otherwise and the
Agreements shall be null and void and of no
effect. Notwithstanding the above, or any other
provisions of this instrument, this Agreement shall not affect,
discharge, or release any claims, known or unknown, which arise
from or relate to the rights or obligations of the Parties hereto,
whether presently existing or subsequently accruing, with respect
to the obligations created by or arising out of the provisions of
this Agreement.
3.
Waiver Under California Civil Code Section 1542
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