SETTLEMENT AGREEMENT AND RELEASE
Exhibit 10.1
This Settlement Agreement and Release (the "Agreement") is made as of the 15th day of April, 2014, by and among Xxxxxxxxx LLC f/k/a Xxxxxxxxx & Company, Inc. ("Jefferies") on the one hand, and Ascent Solar Technologies, Inc. (the "Company") on the other hand. Together, the parties to this Agreement will be referred to herein as the "Parties."
WHEREAS, on or about December 14, 2010, Jefferies and the Company entered into an engagement letter (the "Engagement Letter");
WHEREAS, the Engagement Letter provides that the Company will pay Jefferies certain fees for Transactions defined therein;
WHEREAS, the Parties dispute whether the Company entered into a Transaction as contemplated by and defined in the Engagement Letter;
WHEREAS, the Parties dispute whether fees are owed to Jefferies by the Company; and
WHEREAS, to avoid the expense, inconvenience, distractions and inherent uncertainties associated with asserting and defending claims before a court of law, the Parties now desire to finally and completely settle all disputes and potential claims arising out of the Engagement Letter on the terms set forth herein and without the admission of any facts or liability.
NOW, THEREFORE, in consideration of the promises and the covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1.Settlement Amount. Subject to the approval of the Colorado Housing and Finance Authority (“CHFA”), the Company agrees to pay and Jefferies agrees to accept the total sum of three million dollars ($3,000,000.00) (the "Settlement Amount") in full and final payment, satisfaction, and settlement of the current claims of Jefferies against the Company regarding the August 12, 2011 TFG Radiant transaction (the "TFG Radiant Transaction"). If, however, payment in the amount of two million dollars ($2,000,000.00) is made by the Company to Jefferies on or before August 15, 2017 (the "Reduced Settlement Amount"), and no Event of Default has occurred during that period of time, the Settlement Amount shall be deemed fully paid and satisfied.
2.Settlement Payment. To bring the settlement contemplated by this Agreement to a prompt and orderly conclusion, the Parties agree that:
(a)Beginning on April 15, 2014 and continuing on the 15th day of every month for forty (40) consecutive months, the Company shall pay to Jefferies, by wire transfer, the amount of $50,000 (the "Monthly Payment"). If the fifteenth day of a month falls on a Saturday, Sunday, or legal holiday, the Monthly Payment for that month shall be due on the next business day. The Company agrees to make Monthly Payments while the parties await final approval of the settlement by CHFA.
(b)An "Event of Default" shall occur if (i) the Company fails to timely make any payment as required by Section 2(a) of this Agreement, and/or (ii) a voluntary or involuntary petition for bankruptcy is filed with respect to the Company under the United States Bankruptcy Code. If an Event of Default occurs, the Company agrees that, without further notice, the entire outstanding Settlement Amount shall be immediately due and payable.
(c) The Company shall have the right to complete payment of the Reduced Settlement Amount sooner than required by the monthly payment schedule set forth in Section 2(a). If the Company completes payment of the Reduced Settlement Amount earlier than required by the monthly payment schedule, and no Event of Default has occurred during that time, the Company’s obligation to pay the Settlement Amount under this Agreement shall be deemed fully paid and satisfied.
3.Method of Settlement Payment. Payments made pursuant to this Agreement shall be made by the Company by wiring the Monthly Payment as required by Section 2(a) to Jefferies at:
[ ]
4.Deed of Trust. The Company agrees, within three (3) business days after receipt of the approval of CHFA, to deliver to Jefferies a Deed of Trust in the form attached as Exhibit A hereto but with such changes as may be agreed to by Jefferies and CHFA in their respective discretion (the "Jefferies Deed of Trust"), granting Jefferies a second lien security interest (subordinate only to the security interest of CHFA) with respect to the real property and fixtures located at 00000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx. In the event of the occurrence of any Event of Default, the Company agrees that Jefferies may immediately invoke its power of sale and all other remedies permitted by law pursuant to the Jefferies Deed of Trust. The Company represents that it has commenced the approval process with CHFA for the Settlement Amount and for the Jefferies Deed of Trust. The Company agrees to use its best efforts to obtain approval of the Settlement Amount and the Jefferies Deed of Trust from CHFA and to deliver such approvals and the Jefferies Deed of Trust no later than June 13, 2014.
5.Confession of Judgment. Simultaneously with the execution of this Agreement, the Company shall deliver to Jefferies a Confession of Judgment in the form attached as Exhibit B hereto, in the amount of three million dollars ($3,000,000.00). The Confession of Judgment shall be held in escrow by counsel for Jefferies until such time as CHFA approves the settlement and the Company delivers to Jefferies the Jefferies Deed of Trust. After CHFA approves the settlement and Jefferies receives the Jefferies Deed of Trust, the Company agrees that, in the event of the occurrence of any Event of Default, Jefferies may immediately file such Confession of Judgment in the Supreme Court for the State of New York, New York County and may obtain judgment thereon.
6.Termination. If the Company does not deliver the Jefferies Deed of Trust by June 13, 2014, either of the parties may terminate this Agreement by providing written notice to other of their election to
terminate the Agreement. If either Party terminates the Agreement, all of the parties’ rights and obligations under the Agreement shall immediately cease, except that the Company shall forfeit the Monthly Payments it has made to Jefferies. If either Party terminates this Agreement, Jefferies shall have the right to fully pursue any and all of its claims against the Company, and the Company shall have the right to fully defend itself against any claims pursued by Jefferies. For the avoidance of doubt, termination of this Agreement shall not terminate the Engagement Letter, including without limitation the indemnification provisions of Section 6 thereof.
7.Releases. For and in exchange for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the following releases shall become effective upon the Company’s completion of payment of the Reduced Settlement Amount to Jefferies:
A.In favor of the Company:
For and in exchange for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, except as set forth in paragraph 6(A)(i) herein, Jefferies, on its own behalf and on behalf of its respective parent companies, affiliates, successors, predecessors, subsidiaries, divisions, branches, units, parents, heirs, personal representatives and assigns, and each of their current or former agents, officers, directors, shareholders, members and employees (collectively, "Releasors"), hereby completely release and discharge the Company, and its respective parent companies, affiliates, successors, predecessors, subsidiaries, divisions, branches, units, parents, heirs, personal representatives and assigns, and each of their current or former agents, officers, directors, shareholders, members, employees, partners (collectively, "Releasees") from any and all claims, counterclaims, defenses, causes of action, demands, damages, liabilities, expenses, fees, costs, including attorneys’ fees, which Releasors could have asserted, or that the Releasors had or may have by reason of any acts or omissions up to and including the date of this Agreement, releasing to the fullest extent permitted by law all manners of action, causes of action, judgments, executions, debts, demands, rights, promises, damages, costs, expenses and claims of every kind, nature and character whatsoever, whether in law or in equity, whether based on contact (including, without limitation, quasi-contract or estoppel),
statute, regulation, tort (including, without limitation, intentional torts, fraud, misrepresentation, defamation, breaches of alleged fiduciary duty, recklessness, gross negligence, or negligence) or otherwise, accrued or unaccrued, known or unknown, matured, unmatured, liquidated or unliquidated, whether in their own right, or by reason of assignment, for, upon, or by any matter, cause or thing, whatsoever. The Releasors, and each of them, acknowledge that they may hereafter discover facts different from, or in addition to, those which they now know or believe to be true with respect to the Agreement and agree that this Agreement and the releases contained herein shall be and remain effective in all respects notwithstanding such different or additional facts or the discovery thereof.
(i)Breach of Settlement Agreement. Nothing in this Agreement, including paragraph 6(A) herein, shall release the Company from any claim brought by Jefferies for breach of this Agreement, and the foregoing releases in favor of the Company shall not place any limitation on the Company’s obligations under this Agreement or Jefferies' ability to bring suit for breach of this Agreement.
(ii)Indemnification Obligations. Nothing in this Agreement, including paragraph 6(A) herein, shall release the Company from its indemnification obligations as set forth in Section 6 of the Engagement Letter entitled, "Indemnification, etc." and Schedule A thereto. The Company’s indemnification obligations set forth in the Engagement Letter are still in full force and effect and are incorporated herein. The foregoing releases in favor of the Company shall not place any limitation on the Company’s indemnification obligations under Section 6 and Schedule A of the Engagement Letter or Jefferies' ability to seek indemnity pursuant to such provisions.
B.In favor of Jefferies:
For and in exchange for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company, on its own behalf and on behalf of each of its respective parent companies, affiliates, successors, predecessors, subsidiaries, divisions, branches, units, parents, heirs, personal representatives and assigns, and each of their current or former agents, officers, directors, shareholders,
members and employees (collectively, "the Company Releasors"), hereby completely release and discharge Jefferies, and its respective parent companies, affiliates, successors, predecessors, subsidiaries, divisions, branches, units, parents, heirs, personal representatives and assigns, and each of their current or former agents, officers, directors, shareholders, members, employees, partners (collectively, "Jefferies Releasees") from any and all claims, counterclaims, defenses, causes of action, demands, damages, liabilities, expenses, fees, costs, including attorneys’ fees, which the Company Releasors could have asserted, or that the Company Releasors had or may have by reason of any act or omissions up to and including the date of this Agreement, releasing to the fullest extent permitted by law all manners of action, causes of action, judgments, executions, debts, demands, rights, promises, damages, costs, expenses and claims of every kind, nature and character whatsoever, whether in law or in equity, whether based on contract (including, without limitation, quasi-contract or estoppel), statute, regulation, tort (including, without limitation, intentional torts, fraud, misrepresentation, defamation, breaches of alleged fiduciary duty, recklessness, gross negligence, or negligence) or otherwise, accrued or unaccrued, known or unknown, matured or unmatured, liquidated or unliquidated, whether in their own right, or by reason of assignment, for, upon, or by any matter, cause or thing, whatsoever. The Company Releasors, and each of them, acknowledge that they may hereafter discover facts different from, or in addition to, those which they now know or believe to be true with respect to the Agreement and agree that this Agreement and the releases contained herein shall be and remain effective in all respects notwithstanding such different or additional facts or the discovery thereof.
(i) Breach of Settlement Agreement. Nothing in this Agreement, including paragraph 6(B) herein, shall release Jefferies from any claim brought by the Company for breach of this Agreement, and the foregoing releases in favor of Jefferies shall not place any limitation on Jefferies’ obligations under this Agreement or Jefferies’ ability to bring suit for breach of this Agreement.
8.Dismissal of Action. Within five (5) business days of the delivery by the Company to Jefferies of the Jefferies Deed of Trust, the Parties shall execute, and cause to be filed, a Stipulation of Dismissal With Prejudice, in the form attached as Exhibit C hereto, with respect to the action
pending in the Commercial Division of the Supreme Court of the State of New York, County of New York, captioned Xxxxxxxxx & Company, Inc. v. Ascent Solar Technologies, Inc., Index No. 652862/2011.
9.Representations. Each Party represents and warrants to the other Party, that (i) the execution, delivery and performance by such Party of this Agreement is within the powers of such Party and have been duly authorized by all necessary action on the part of such Party, (ii) this Agreement has been duly executed and delivered by such Party and constitutes a valid and binding obligation of such Party, enforceable against such Party and their successors and assignees in accordance with the terms hereof, (iii) it is not relying upon any statements, understandings, representations, expectations or agreements other than those expressly set forth in this Agreement, (iv) it has had the opportunity to be represented and advised by legal counsel in connection with this Agreement, which it enters into voluntarily and of its own choice and not under coercion or duress, (v) it has made its own investigation of the facts and is relying upon its own knowledge and/or the advice of its counsel, and (vi) it knowingly waives any and all claims that this Agreement was induced by any misrepresentation or non-disclosure and knowingly waives any and all rights to rescind or avoid this Agreement based upon presently existing facts, known or unknown.
10.No Admission of Liability. This Agreement is a compromise of disputed claims and shall not be treated for any purpose as an admission of liability by any party and is not an admission.
11.Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, exclusive of the choice-of-law principles thereof.
12.Exclusive Jurisdiction. The Parties agree that any dispute, claim or controversy directly or indirectly relating to or arising out of this Agreement shall be commenced in the Commercial Division of the Supreme Court of the State of New York located in the City and County of New York or in the United States District Court for the Southern District of New York, which courts shall have exclusive jurisdiction over the adjudication of such matters and shall decide the merits of each claim on the basis of the internal laws of the State of New York without regard to principles of conflicts of law. The Company and Jefferies agree and consent to personal jurisdiction, service of process and venue of such courts, waive all right to
trial by jury for any claim and agree not to assert the defense of forum non conveniens. The Company and Jefferies also agree that service of process may be effected through next-day delivery using a nationally-recognized overnight courier or personally delivered to the Parties. The Company and Jefferies further agree that a final non-appealable judgment in respect of any claim brought in any such court shall be binding and may be enforced in any other court having jurisdiction over the party against whom the judgment is sought to be enforced.
13.Entire Agreement: This Agreement reflects the complete understanding of the Parties and may not be amended orally.
14.Interpretation. The Parties acknowledge that this Agreement represents the combined efforts of negotiation and drafting of the Parties and their attorneys and that any ambiguity shall not be construed against any Party.
15.Counterparts. This Agreement may be executed in two or more counterparts, including by email or facsimile, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement.
16.No Modification. This Agreement shall not be modified in any way except by a writing signed by all Parties hereto.
The foregoing sets forth the relationship between the Parties as evidenced by the signatures below.
Dated: Thornton, Colorado April 16, 2014 | Dated: New York, New York April 16, 2014 |
By: /s/ Xxxxxx Xxx Name: Xxxxxx Xxx Title: Chief Executive Officer | Xxxxxxxxx LLC By: /s/ Xxxxxxxx X. Xxxx Name: Xxxxxxxx X. Xxxx Title: Assistant General Counsel |
EXHIBIT A
EXHIBIT B
SUPREME COURT OF THE STATE OF NEW YORK | ||
COUNTY OF NEW YORK | ||
X | ||
CREDITOR XXXXXXXXX LLC, Plaintiff, -against- DEBTOR Defendant. | : : : : : : : : | Index No. ________ |
X | ||
AFFIDAVIT OF CONFESSION OF JUDGMENT
Xxxxxx Xxx, being duly sworn, deposes and says that he is the Chief Executive Officer of Ascent Solar Technologies, Inc. ("Ascent") and is duly authorized to make this affidavit on behalf of Ascent. Ascent hereby confesses judgment herein and consents to the entry thereof against it in Supreme Court, New York County, New York, as hereafter conditioned.
This confession of judgment is for a debt justly due to the Plaintiff arising from the following facts:
Ascent, as obligor, defaulted in payment due Xxxxxxxxx LLC ("Jefferies") arising out of the Settlement Agreement and Release (the "Agreement") signed by and among Ascent and Jefferies on April 15, 2014. Ascent owes Jefferies $3,000,000.00 as a result of its failure to pay the sum due to Jefferies as required by Section 2(a) of the Agreement and/or due to a voluntary or involuntary petition for bankruptcy filed with respect to Ascent under the United States Bankruptcy Code.
By: __________________________
Xxxxxx Xxx
Title: Chief Executive Officer
STATE OF COLORADO )
ss.:
COUNTY OF XXXXX )
Sworn to before me this ______
day of _____________, 2014.
__________________________________
Notary Public
SUPREME COURT OF THE STATE OF NEW YORK | ||
COUNTY OF NEW YORK | ||
X | ||
CREDITOR XXXXXXXXX LLC, Plaintiff, -against- DEBTOR Defendant. | : : : : : : : : | Index No. ________ |
X | ||
JUDGMENT BY CONFESSION
Amount confessed…………………………………………………… $3,000,000.00
Costs by Statute.………………………………………..15.00
Filing Fee……………………………………………….45.00
Transcripting Fees………………………………………16.00
Execution Fee…………………………………………..45.00
Cost Total………………….. + 121.00
Judgment Total……………………………………………… $3,000,121.00
ATTORNEY'S AFFIRMATION
STATE OF NEW YORK, COUNTY OF NEW YORK
The undersigned, an attorney at law of the State of New York, affirms that he a Partner with the law firm of Xxxxxxx Xxxxx Freehills New York, attorneys for the plaintiff herein and states that the disbursements above specified are correct and true and have been or will necessarily be made or incurred herein and are reasonable in amount and affirms this statement to be true under the penalties of perjury.
Dated: __________________20____
_______________________________
Xxxxx X. Xxxxxx, Esq.
JUDGMENT entered the ____ day of ______________, 20___.
On filing the foregoing Affidavit of Confession of Judgment made by the defendant Ascent Solar Technologies, Inc. herein, sworn to the _____ day of __________________, 20___.
NOW, ON MOTION OF Xxxxxxx Xxxxx Freehills New York LLP, attorneys for plaintiff, it is
ADJUDGED that plaintiff, Xxxxxxxxx LLC, residing at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, does recover of the defendant, Ascent Solar Technologies, Inc., residing at 00000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, XX 00000, the sum of $3,000,000.00; together with $121.00 costs and disbursements, amounting in all to the sum of $3,000,121.00; and that the plaintiff have execution therefor.
_______________________________
Clerk
