Exhibit 10.51
SETTLEMENT AGREEMENT
SETTLEMENT AGREEMENT dated the 19th day of March 2007 (the "Effective Date"),
AMONG:
MFC Merchant Bank S.A., a bank organized under the laws of Switzerland, ("MFC")
KHD Humboldt Wedag International Ltd, formerly known as MFC Bancorp Ltd, a
company organized under the laws of Canada ("KHD")
AND:
Mymetics Corp., a corporation organized under the laws of the State of Delaware,
for itself and its subsidiary Mymetics SA, a corporation organized under the
laws of France ("Mymetics Corp")
(MFC, KHD and Mymetics Corp each a "Party" and together the "Parties")
WHEREAS:
MFC entered into a credit facility agreement on July 27th 2000 with Mymetics SA,
previously named Hippocampe SA, which agreement was amended several times, and
subsequently assigned to Mymetics Corp. Mymetics Corp as borrower, MFC as lender
and KHD as guarantor entered into an amended and restated credit facility
agreement dated February 28th 2003. The credit facility agreement of February
28th 2003 was amended by a first amendment agreement dated July 9th 2003, a
second amendment agreement dated July 30th 2003, a third amendment agreement
dated December 31st 2004, a fourth amendment agreement dated February 16th 2005,
a fifth amendment agreement dated August 21st 2005 and a sixth amendment
agreement dated June 30th 2006 (all together the "Credit Arrangements"). Under
the Credit Arrangements, MFC has made available to Mymetics Corp a credit
facility in the principal amount of up to EUR 3,700,000 (the "Facility").
The dates for repayment of the Facility plus interest and other obligations
under the Credit Arrangements were extended several times, with the sixth
amendment agreement of June 30th 2006 providing for repayment of EUR 900,000 on
June 30th 2006, and the remaining balance on December 31st 2006. These agreed
repayment dates were not met by Mymetics Corp.
In accordance with the Credit Arrangements, MFC, Mymetics Corp and Mymetics SA
entered into a patent pledge agreement dated November 2002 granting security
rights in favour of MFC over patents and patent applications held and to be held
by Mymetics Corp and Mymetics SA (the "Pledge Agreement"). The assignments of
certain patents and patent applications in accordance with the Pledge Agreement
have been recorded in the US Patent Register.
Mymetics Corp is the plaintiff in two court proceedings, one against MFC, KHD,
John M. Musacchio and Michael J. Smith in the United States District Court
Southern District of New York (Docket No. 06 Civ 11421 (LTS)) and the other
against MFC, KHD, Michael K. Allio, John M. Musacchio and Michael J. Smith in
the Court of Chancery of the State of Delaware in and for New Castle County
(Civil Action No. 2255-N), claiming for damages from the defendants on various
counts. These proceedings are hereafter referred to as the "Mymetics
Complaints". The Mymetics Complaints are still pending before the respective
courts.
The Parties wish to settle and terminate any and all claims and disputes
between them in relation to the Credit Arrangements and the Mymetics Complaints,
without further litigation.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which hereby is acknowledged, the Parties hereto agree as follows:
SETTLEMENT
Simultaneously with the execution hereof by all parties the following shall
occur:
1. Mymetics Corp shall make payment to MFC in the amount of EUR 1,490,000, which
sum shall be paid:
(a) By bankers draft of a Swiss bank acceptable to MFC; or
(b) By bank transfer with value execution date to the bank account of MFC:
DEUTSCHE BANK AG, FRANKFURT
SWIFT CODE DEUTDEFF
FAVOUR ACCOUNT NO 100 941 8088 00
INO BANK SAL.OPPENHEIM, ZURICH
FFC ACCOUNT NO 88'637
INO MFC MERCHANT BANK
2. Mymetics Corp shall deliver to MFC a copy of a resolution of its board of
directors allowing for the issue of, as well as an original and signed letter
ordering its transfer agent to issue, 12,500,000 shares in Mymetics Corp to MFC,
such shares to be issued under the United States Securities Act of 1933
Regulation S, free of all other encumbrances.
3. Mymetics shall deliver to MFC an original and signed letter to its transfer
agent containing an opinion of counsel according to which the 3,000,000
restricted shares of Mymetics common stock owned by MFC should have the
restrictive legend removed to allow the shares to be free trading, provided that
MFC has previously provided its broker with the customary documents required to
allow counsel to recommend removal of the Rule 144 restrictive legend In the
event that MFC has not yet provided these documents to its broker, Mymetics
shall send the above-mentioned opinion letter to its transfer agent as soon as
MFC has provided its broker with the required documents.
WITHDRAWAL OF LITIGATION
4. Simultaneously with the execution of this Settlement Agreement and Releases
the Parties, either directly or through their respective counsel shall take all
steps necessary to have the Mymetics Complaints dismissed with prejudice,
including the simultaneous exchange of and filing with the appropriate courts
executed stipulations of dismissal with prejudice in the forms attached as
Annexes A and B to this Settlement Agreement. If executed through their counsels
the simultaneous delivery of such stipulations shall be between the following
counsel: (a) James V. Kearney, Latham & Watkins, LLP (at address of record); and
(b) Meghan Hart, Seyfarth Shaw LLP (at address of record). Each party hereby
authorizes their respective counsel to execute such other documents as may be
reasonably necessary and customary to effectuate the dismissals contemplated
hereby.
RELEASES
5. Simultaneously with the execution of this Settlement Agreement, the Parties
will sign and deliver to one another, either directly or through their
respective counsel, a mutual release agreement in the form attached as Annex C
to this Settlement Agreement. Nothing in this release shall discharge any Party
from any obligation undertaken in this Agreement.
6. Each of the Parties hereto covenants and agrees not to sue each other,
including their respective employees, officers, directors, representatives,
agents or other personnel or their successors, upon claims, demands or rights of
action related to claims or issues raised (or which could have been raised) in
connection with the Mymetics Complaints, the Credit Arrangements or the Pledge
Agreement.
SECURITY
7. On fulfilment of all obligations in paragraphs 1 - 4 above, the Credit
Arrangements, Facility and Pledge Agreement shall be deemed terminated, and
Mymetics Corp shall take all steps necessary to cancel all recordations of
assignments under the Pledge Agreement and in particular of the assignments set
out in Annex D to this Settlement Agreement. MFC acknowledges that it will have
no intellectual property rights, title or interest over any of Mymetics Corp.'s
assets (including without limitation intellectual property), once Mymetics has
complied with its obligations under this Agreement, and MFC shall at its own
cost take all actions and execute all documents reasonably required by Mymetics
Corp in connection with the cancellations of the recordations of assignments
mentioned above.
CONFIDENTIALITY
8. All terms and conditions of this Settlement Agreement and the terms and
conditions of all settlement offers made shall be maintained in confidence and
shall be disclosed only to the Parties, their attorneys, their accountants and
tax authorities, provided that the disclosing party in all cases of disclosure
to such persons shall advise the recipient of the confidential nature of the
information and shall require the recipient not to disclose the information to
any third party. Notwithstanding the foregoing, each Party hereto shall comply
with their respective disclosure and other obligations pursuant to the
securities laws and regulations of the United States.
SETTLEMENT / TERMINATION
9. On fulfilment by all Parties of the last of their respective obligations
under this Settlement Agreement, all claims between the Parties arising out of
their relationship prior to the date of this Settlement Agreement and relating
to the Credit Arrangements, Facility and Pledge Agreement and the Mymetics
Complaints, including claims related to Mymetics SA, France, shall be settled
per saldo and the Parties will have reached complete settlement with respect to
the subject matter hereof.
10. If Mymetics Corp does not fulfil any of its obligations referred to in
paragraphs 1 - 4 under this Settlement Agreement, MFC may at its sole option
either (i) grant to Mymetics Corp a further period within which to fulfil its
obligations hereunder or (ii) terminate this Agreement with immediate effect by
notice to Mymetics Corp. If terminated, all provisions of this Settlement
Agreement, with the exception of paragraph 8 (confidentiality) shall cease to
have effect; however, any sums paid to MFC or shares in Mymetics Corp then held
by MFC shall remain with MFC, without prejudice to any court order requiring MFC
or KHD to make payment to Mymetics or court order requiring cancellation of the
shares transferred to MFC.
OTHER PROVISIONS
11. Each Party will bear its own costs, attorney's fees and expenses incurred in
relation to the claims and controversies settled and released herein. No Party
will have any liability towards any other Party for their costs and legal
expenses in relation to this controversy and settlement, including the Mymetics
Complaints.
12. Nothing in this Settlement Agreement shall be construed as an admission by
any Party hereto of any liability of any kind to any other Party, except
liability to perform the obligations set out in this Settlement Agreement.
13. No Party may assign this Settlement Agreement or its rights and obligations
hereunder without the prior written consent of the other Parties; provided that
a Party may assign this Settlement Agreement without such consent to the
acquirer of all or substantially all of the business of such Party.
14. The Parties expressly confirm and accept that execution of this Settlement
Agreement by facsimile and/or electronic documents shall be valid and binding.
GOVERNING LAW; JURISDICTION
15. This Settlement Agreement shall be governed by, and construed in accordance
with, the laws of Switzerland without reference to conflicts of laws rules.
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16. Each of the Parties hereby irrevocably submits to the non-exclusive
jurisdiction of the Courts of Zurich (Switzerland) in any action or proceeding
arising out of or relating to this Settlement Agreement. IN WITNESS WHEREOF the
Parties hereto have caused this Agreement to be executed by their respective
officers thereunto duly authorized, as of the date first above written.
MYMETICS CORPORATION, for itself and its subsidiary MYMETICS SA
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Per:
-----------------------------------
Authorized Signing Officer
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Per:
--------------------------------
Authorized Signing Officer
MFC MERCHANT BANK S.A.
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Per:
-----------------------------------
Authorized Signing Officer
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Per:
--------------------------------
Authorized Signing Officer
KHD HUMBOLDT WEDAG INTERNATIONAL LTD
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Per:
Authorized Signing Officer
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Per:
--------------------------------
Authorized Signing Officer
ANNEX A
Stipulation of Dismissal: Delaware
IN THE COURT OF CHANCERY OF THE STATE
OF DELAWARE IN AND FOR NEW CASTLE
COUNTY
- -------------------------------------
MYMETICS CORP.,
Plaintiff,
v.
MICHAEL K. ALLIO, KHD HUMBOLDT
WEDAG INTERNATIONAL, LTD.
(f/k/a MFC BANCORP, LTD),
MFC MERCHANT BANK, S.A.,
JOHN M. MUSACCHIO and
MICHAEL J. SMITH,
Defendants.
- -------------------------------------
Civil Action No. 2255-N
STIPULATION OF DISMISSAL
IT IS HEREBY STIPULATED AND AGREED by Plaintiff Mymetics Corp. and
Defendants Michael K. Allio, KHD Humboldt Wedag International, Ltd (f/k/a MFC
Bancorp, Ltd), MFC Merchant Bank, S.A., John M. Musacchio and Michael J. Smith,
by and through their respective counsel, that the above-captioned case be, and
hereby is, dismissed with prejudice. Each party shall bear its own costs and
attorneys' fees.
[remainder of page intentionally left blank]
Dated: _________, 2007 MORRIS JAMES LLP
Brett D. Fallon (#2480)
500 Delaware Avenue, Suite 1500
Of counsel: P.O. Box 2306
James V. Kearney Wilmington, Delaware 19899-2306
Sheri E. Hametz Telephone: (302) 888-6888
Facsimile: (302) 571-1750
Email: bfallon@morrisjames.com
LATHAM & WATKINS LLP Attorneys for Defendants
885 Third Avenue, Suite 1000 Michael K. Allio,
New York, NY 10022 KHD Humboldt
Telephone: (212) 906-1358 Wedag International, Ltd.
Facsimile: (212) 751-4864
(f/k/a MFC Bancorp, Ltd.),
MFC Merchant Bank,
S.A., John M. Musacchio and
Michael J. Smith
- -and-
LANDIS RATH & COBB LLP
Of counsel:
Robert B. Lovett
Meghan M. Hart Rebecca L. Butcher (#3816)
SEYFARTH SHAW LLP 919 Market Street, Suite 600
World Trade Center East Wilmington, Delaware 19801
Two Seaport Lane Telephone: (302) 467-4466
Boston, MA 02110 Facsimile: (302) 467-4450
Telephone: (617) 946-4800 Email: mutcher@lrclaw.com
Facsimile: (617) 946-4801
Attorneys for Plaintiff Mymetics Corp.
IT IS SO ORDERED this ___ day of _________, 2007
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Master
---------------------------------------
Chancellor
ANNEX B
Stipulation of Dismissal: New York
- -------------------------------------
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MYMETICS CORP.,
Plaintiff,
- - against -
KHD HUMBOLDT WEDAG INTERNATIONAL, LTD (f/k/a MFC BANCORP, LTD), MFC MERCHANT
BANK, S.A., JOHN M. MUSACCHIO and MICHAEL J. SMITH,
Defendants.
06 CV 11421 (LTS)
STIPULATION OF DISMISSAL
IT IS HEREBY STIPULATED AND AGREED, by Plaintiff Mymetics Corp. and Defendants
KHD Humboldt Wedag International, Ltd (f/k/a MFC Bancorp, Ltd), MFC Merchant
Bank, S.A., John M. Musacchio and Michael J. Smith, by and through their
respective counsel, that the above-captioned case be, and hereby is, dismissed
with prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(ii), with
each party to bear its own costs and attorneys' fees.
Dated: New York, New York
____________, 2007
SEYFARTH SHAW LLP
By:
---------------------------------
Noah Lang, Esq. (NL-2728)
1270 Avenue of the Americas
Suite 2500
New York, New York 10020
(212) 218-5500
Attorney for Plaintiff Mymetics Corp.
LATHAM & WATKINS LLP
By:
---------------------------------
James V. Kearney, Esq. (JK-7128)
Sheri E. Hametz, Esq. (SH-4665)
885 Third Avenue, Suite 1000
New York, New York 10022
(212) 906-1200
Attorneys for Defendants KHD Humboldt Wedag International, Ltd (f/k/a MFC
Bancorp, Ltd), MFC Merchant Bank, S.A., John M. Musacchio and Michael J. Smith
SO ORDERED this _____ day of ______________, 2007.
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Judge Laura Taylor Swain
ANNEX C
Release
.
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MUTUAL RELEASE AGREEMENT
This Release Agreement ("Agreement") is being entered into as of this ____ day
of _______, 2007, by and among: (a) Mymetics Corp., a corporation organized
under the laws of the State of Delaware, for itself and its subsidiary Mymetics
SA, a corporation organized under the laws of France ("Mymetics Corp"), (b) MFC
Merchant Bank S.A., a bank organized under the laws of Switzerland, ("MFC"), (c)
KHD Humboldt Wedag International Ltd, formerly known as MFC Bancorp Ltd, a
company organized under the laws of Canada ("KHD"), (d) Michael K. Allio, (e)
John M. Musacchio, and (f) Michael J. Smith (together with MFC, KHD, Michael K.
Allio and John M. Musacchio, each a "Defendant" and collectively the
"Defendants"); each a "Party" and collectively the "Parties".
1. Mymetics Corp, on behalf of itself and its predecessors, successors,
parents, subsidiaries, affiliates, related companies, and their respective past
and present officers, directors, employees, representatives, agents, and assigns
("Plaintiff Parties"), hereby releases and forever, unconditionally and
irrevocably discharges and covenants not to sue the Defendants and their
predecessors, successors, parents, subsidiaries, affiliates, related companies,
and their respective past and present officers, directors, employees,
representatives, agents, and assigns (the "Defendant Parties"), from any and all
claims, rights, actions, causes of action, suits, debts, liens, liabilities,
obligations, agreements, judgments, demands, damages, losses, costs or expenses
of every nature, kind and description whatsoever, whether known or unknown and
whether suspected or unsuspected under the laws of any jurisdiction ("Claims")
that Plaintiff Parties ever had, now have or hereafter may have against the
Defendant Parties, for, relating to, arising out of or in respect of: (i) any
and all claims arising out of or relating to events prior to and including the
date of execution of the Settlement Agreement by and among Mymetics Corp., MFC
and KHD dated ___, 2007; and (ii) the complaints in the actions brought by
Mymetics against MFC, KHD, John M. Musacchio and Michael J. Smith in the United
States District Court for the Southern District of New York (Docket No. 06 Civ
11421 (LTS)), and against MFC, KHD, Michael K. Allio, Johm M. Musacchio and
Michael J. Smith in the Court of Chancery of the State of Delaware in and for
New Castle County (Civil Action No. 2255-N) ("Mymetics Complaints").
2. The Defendant Parties, on behalf of themselves and each of their
respective predecessors, successors, parents, subsidiaries, affiliates, related
companies, and their respective past and present officers, directors,
employees, representatives, agents, and assigns hereby release and forever,
unconditionally and irrevocably discharge and covenant not to sue the Plaintiff
Parties and their predecessors, successors, parents, subsidiaries, affiliates,
related companies, and their respective past and present officers, directors,
employees, representatives, agents, and assigns from any and all Claims that
Defendant Parties ever had, now have or hereafter may have against the Plaintiff
Parties, for, relating to, arising out of or in respect of: (i) any and all
claims arising out of or relating to events prior to and including the date of
execution of the Settlement Agreement by and among Mymetics Corp., MFC and KHD
dated ___, 2007; and (ii) any and all events arising out of or relating to the
Mymetics Complaints.
3. Each Party hereby agrees that if any of them hereafter commences, joins
in, or in any manner seeks relief through any suit, action or proceeding arising
out of, based upon, or relating to any of the Claims released hereunder, then
such Party will pay to such other Party against whom or which the action was
brought, all reasonable attorneys' fees and associated costs incurred in
defending or otherwise responding to such Claims.
4. This Agreement may be pleaded by any Party hereto as a full and complete
defense to a Claim asserted by another Party and may be used as the basis for an
injunction against any action at law or equity instituted or maintained in
violation hereof.
5. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York, United States of America,
regardless of the laws that might otherwise govern under applicable principles
of conflicts of law thereof.
6. This Agreement shall be binding upon and inure to the benefit of the
Parties and their respective successors, permitted assigns and legal
representatives. Neither this Agreement, nor any right hereunder, may be
assigned by any Party (in whole or in part) without the prior written consent of
the other Parties.
IN WITNESS WHEREOF, the Parties have duly executed this Release Agreement as of
the date first above written.
MYMETICS CORPORATION
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Per:
-----------------------------------
Authorized Signing Officer
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Per:
--------------------------------
Authorized Signing Officer
MFC MERCHANT BANK S.A.
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Per:
-----------------------------------
Authorized Signing Officer
- -------------------------------------
Per:
--------------------------------
Authorized Signing Officer
KHD HUMBOLDT WEDAG INTERNATIONAL LTD
----------------------------------------
Per:
-----------------------------------
Authorized Signing Officer
- -------------------------------------
Per:
--------------------------------
Authorized Signing Officer
MICHAEL K. ALLIO
JOHN M. MUSACCHIO
MICHAEL J. SMITH
ANNEX D
Recorded Assignments
US Patent No. 6,455,265
US Patent Application Nos.: USSN 60/340,492
USSN 09/979271
USSN 60/386,754
USSN 10/198,938
USSN 60/413919
USSN 10/222,976
USSN 60/421,049
USSN 10/305,133
USSN 60/430,652
USSN 10/457,780
USSN 60/446,268