SETTLEMENT AGREEMENT
THIS
AGREEMENT, dated as of January __, 2007 (this "Agreement"),
is
entered into by and between InPlay Technologies, Inc. ("InPlay")
and
Delphi Automotive Systems LLC ("DAS
LLC").
RECITALS:
WHEREAS,
on April 20, 2000, DAS LLC entered into a License Agreement with InPlay,
pursuant to which InPlay licensed certain proprietary technology to DAS LLC
(the
"License
Agreement").
WHEREAS,
on October 8, 2005 (the "Petition
Date"),
Delphi
Corporation ("Delphi"),
together with certain of its U.S. affiliates, including DAS LLC (collectively,
the "Debtors"),
filed
voluntary petitions under chapter 11 of the Bankruptcy Code, in the United
States Bankruptcy Court for the Southern District of New York (the "Delphi
Bankruptcy Cases"
and the
"Court,"
respectively).
WHEREAS,
on or about April 4, 2006, InPlay filed proof of claim number 2558 (the
"Proof
of Claim")
against
Delphi, asserting an unsecured nonpriority claim in the amount of $9 million
(the "Claim")
for
royalties allegedly owed pursuant to the License Agreement.
WHEREAS,
on October 31, 2006, the Debtors objected to the Claim pursuant to the Debtors'
(i) Third Omnibus Objection (Substantive) Pursuant To 11 U.S.C. § 502(b) And
Fed. R. Bankr. P. 3007 To Certain (a) Claims With Insufficient Documentation,
(b) Claims Unsubstantiated By Debtors' Books And Records, And (c) Claims Subject
To Modification And (ii) Motion To Estimate Contingent And Unliquidated Claims
Pursuant To 11 U.S.C. § 502(c) (Docket No. 5452) (the "Third
Omnibus Claims Objection")
WHEREAS,
in order to resolve the Third Omnibus Claims Objection with respect to the
Claim, DAS LLC and InPlay have agreed to enter into this settlement agreement
(this "Settlement
Agreement").
WHEREAS,
on June 29, 2006, the Court entered that certain Order
Under 11 U.S.C. §§ 363, 502, And 503 And Fed. R. Bankr. P. 9019(b) Authorizing
Debtors To Compromise Or Settle Certain Classes Of Controversy And Allow Claims
Without Further Court Approval
(Docket
No. 4414) entered by the Court on June 29, 2006 (the "Settlement
Procedures Order")
pursuant to which the Debtors are authorized to settle certain claims and
classes of controversy, including, but not limited to, the allowance of claims
within those classes, in the Delphi Bankruptcy Cases without further Court
approval. Pursuant to the Settlement Procedures Order, the Debtors will seek
authority to settle the claims as set forth herein.
NOW
THEREFORE, in consideration of the premises set forth above and by execution
of
this Settlement Agreement, DAS LLC and InPlay agree as follows:
1
| 1. |
Allowed
General Unsecured Non-Priority Claim and Waiver Of Rights.
DAS LLC acknowledges and agrees that the Claim shall be allowed against
DAS LLC in the amount of seven million five hundred thousand dollars
($7.5
million). The Claim shall be treated as a general unsecured non-priority
claim. InPlay waives any and all rights to assert that the Claim
is
anything but a general unsecured non-priority claim against DAS LLC.
InPlay further waives any and all rights to assert any claim against
any
of the Debtors on any basis whatsoever, for any amount greater than,
or
any classification different than, that set forth in this Settlement
Agreement.
|
| 2. |
Governing
Law.
This Settlement Agreement shall be governed by, and construed and
enforced
in accordance with, as appropriate, the United States Bankruptcy
Code and
the laws of the State of Michigan, without regard to conflicts of
law
principles.
|
| 3. |
Representations
and Warranties.
The parties hereto acknowledge that they are executing this Settlement
Agreement without reliance on any representations, warranties, or
commitments other than those representations, warranties, and commitments
expressly set forth in this Settlement Agreement.
|
| 4. |
Entire
Understanding.
This Settlement Agreement constitutes the entire understanding of
the
parties in connection with the subject matter hereof. This Settlement
Agreement may not be modified, altered, or amended except by an agreement
in writing signed by the Debtors and InPlay. Should an inconsistency
or
conflict exist between the express terms of the License Agreement
and this
Settlement Agreement, the terms of this Settlement Agreement shall
govern
and control.
|
| 5. |
Condition
Precedent.
This Settlement Agreement is effective upon the expiration of the
notice
period set forth in Paragraph 5(b) of the Settlement Procedures Order
without receipt of a written objection or written request for additional
time from a Notice Party (as that term is defined in the Settlement
Procedures Order) or that additional time has been given to a Notice
Party
but no written objection has been timely
received.
|
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
2
| 6. |
No
Party Deemed Drafter.
This Settlement Agreement is being entered into among competent persons
who are experienced in business and represented by counsel, and has
been
reviewed by InPlay and its counsel. Therefore, any ambiguous language
in
this Settlement Agreement will not be construed against any particular
party as the drafter of such
language.
|
| Accepted and agreed to by: | ||
|
Delphi
Automotive Systems LLC
|
InPlay Technologies, Inc. | |
| By: /s/ Xxxx X. Xxxxx | By: /s/ Xxxxxx X. Xxxxxx | |
| Name: Xxxx X. Xxxxx | Name: Xxxxx X. Xxxxxx | |
| Title: Administrator | Title: CEO | |
| Dated: February 20, 2007 | Dated: February 13, 2007 |
3
