SETTLEMENT AGREEMENT AND RELEASE
Exhibit
10.1
SETTLEMENT
AGREEMENT AND RELEASE
This
Settlement Agreement and Release (the “Agreement”) is made as of this
18th
day of
July 2007 by and between AMF Capital, Inc. (formerly known as Xxxxxx Xxxx &
Company, Inc.) (“AMF”), on the one hand, and Celsia Technologies, Inc. (formerly
known as iCurie, Inc.) (“Celsia”), on the other.
RECITALS
WHEREAS,
a dispute has arisen between the parties with respect to (i) the rights of
AMF under that certain Registration Rights Agreement dated as of July 11, 2005
by and among AMF, Celsia and certain additional parties (the “Registration
Rights Agreement”) and (ii) certain prior discussions between AMF and
Celsia with respect to the potential issuance and sale of debentures by AMF
to
Celsia and certain related discussions (collectively, the “Dispute”);
and
WHEREAS,
AMF and Celsia desire to compromise, settle, and resolve the Dispute between
them, including but not limited to any claims which have been or could have
been
claimed for contractual, extra-contractual, or any other claim, be it founded
in
contract, tort, equity or any other possible theory of recovery, whether or
not
asserted during the Dispute, in accordance with the terms of this
Agreement.
NOW,
THEREFORE,
for and
in consideration of the mutual promises set forth in this Agreement, and for
other good and valuable consideration, the receipt, adequacy and sufficiency
of
which the parties acknowledge, the parties agree as follows:
1. The
Recitals set forth above are incorporated into and made part of this
Agreement.
2. Upon
the
execution of this Agreement by AMF and the resignation of Xxxx X. Xxxxxx from
the board of directors of Celsia, Celsia shall (i) make a single payment to
AMF in the total amount of ONE HUNDRED THOUSAND AND NO/100 DOLLARS
($100,000.00), by wire to AMF, which payment shall be considered an advance
to
AMF under that certain Revenue Share Agreement dated May 18, 2005 by and among
Celsia Technologies UK Limited, AMF and CHL Investment Partnership (the “Revenue
Share Agreement”) and (ii) issue to AMF a warrant in the form attached
hereto as Exhibit
A
(the
“Warrant”) to purchase 1,000,000 shares of common stock of Celsia at an exercise
price of $0.88 per share.
3. AMF,
on
behalf of itself and its agents, principals, officers, directors, shareholders,
employees, representatives, parents, affiliates, subsidiaries, divisions,
associates, predecessors, successors, owners and assigns, hereby releases Celsia
and its agents, principals, officers, directors, shareholders, employees,
representatives, parents, affiliates, subsidiaries, divisions, associates,
predecessors, successors, owners and assigns, in such capacities, of and from
any and all manner of action, suits, claims, causes of action, whether class,
derivative or individual, in law or in equity, for indemnity or otherwise,
obligation or debt AMF had, has, or may have against such parties, whether
pursuant to a written agreement or otherwise or whether presently known or
unknown, suspected or unsuspected, fixed or contingent, from the beginning
of
time to the date hereof whether with respect to the Dispute or any other matter;
provided, however, that nothing in this release shall constitute or be construed
to be a release or waiver of any of AMF’s rights or entitlements created under
or pursuant to the Revenue Share Agreement or this Agreement and this releases
shall not abrogate, impair, or affect in any way any of AMF’s future rights and
interests as a common shareholder of Celsia (which rights AMF acknowledges
are
no greater or less than other holders of Celsia common shares, in their
capacities solely as shareholders), all of which rights, interests and
entitlements are expressly preserved. AMF further warrants and represents that
it has not assigned or otherwise transferred any claim or cause of action
released by this Section 3.
4. AMF
hereby consents to, authorizes, confirms, ratifies and approves the effective
subordination of its rights under the Registration Rights Agreement to the
rights of the parties to that certain Registration Rights Agreement dated as
of
May 25, 2007 by and between Celsia and certain security holders of Celsia (the
“New Registration Rights Agreement”) and further authorizes and approves any
amendments to the Registration Rights Agreement or such other agreements
necessary or desirable to reflect such subordination, including, without
limitation, the Amendment to Registration Rights Agreement dated as of
May 25, 2007. By executing and returning this consent, AMF hereby
appoints the Company and each of its officers as its attorneys-in-fact, each
with the limited power to act alone, to approve and execute any such amendments
to the Registration Rights Agreement or such other agreements to effect the
subordination agreed to in this Section 4. Further, AMF and the Company hereby
specifically agree that as of the date hereof, AMF shall be deemed not to have
exercised its demand rights pursuant to Section 1.2(b) of the Registration
Rights Agreement and shall not be entitled to exercise such demand rights until
the Company has registered all securities required to be registered under the
New Registration Rights Agreement.
5. AMF
represents that it is an “accredited investor,” as defined under the Securities
Act of 1933, as amended (the “1933 Act”), and acknowledges that (i) the Warrant
is being issued without registration under the 1933 Act pursuant to an exemption
therefrom, and (ii) AMF is familiar with the operation and condition of the
Company, and has reviewed the reports of the Company filed pursuant to the
Securities Exchange Act of 1934, as amended.
6. This
Agreement may be executed in one or more counterparts, any one of which need
not
contain the signature of more than one party and all of which taken together
shall constitute one and the same Agreement. This Agreement shall become
effective when fully executed and delivered by all parties hereto, whether
in
one or more counterparts. The signatures of the parties may be obtained by
facsimile transmission with said signature being deemed sufficient to bind
the
parties for purposes of this Agreement.
7. Each
person executing this Agreement on behalf of a party hereto, for him/herself
and
on behalf of the party for which he/she is executing, represents and warrants
that he/she has received all necessary power and authority to do
so.
8. Except
for execution and delivery of this Agreement by all parties hereto and as
specifically set forth herein, there are no conditions precedent to this
Agreement.
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9. Each
person executing this Agreement declares, warrants, and represents that he/she
has the power and authority to enter into this Agreement on behalf of the party
hereto for which he/she is executing, and to bind such party to this Agreement.
Each person further declares, warrants, and represents that he/she fully
understands the terms and nature of this Agreement.
10. The
parties warrant and represent to each other that they have had the benefit
of
legal representation of their choice in connection with this Agreement, that
they and their attorneys have reviewed this Agreement prior to its execution,
and that they have read, understand and intend to be bound by this Agreement
and
all terms and conditions herein contained.
11. Each
party hereto has cooperated in the drafting and preparation of this Agreement.
Hence, in any construction to be made of this Agreement, the same shall not
be
construed against any party.
12. This
Agreement is and shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns; provided, however, that
nothing contained herein shall create or be construed as creating any
third-party beneficiary rights.
13. This
Agreement embodies the sole and entire Agreement of the parties with respect
to
the subject matter hereof. No verbal statement, agreement, promise, undertaking,
understanding, or arrangement made prior to or contemporaneously with the
execution this Agreement shall be binding on any of the parties, unless
expressly set forth herein. Nor shall any verbal agreement, statement, promise,
undertaking, understanding, arrangement, act or omission of any party, occurring
subsequent to the date hereof be deemed an amendment or modification of this
Agreement unless reduced to writing and signed by the parties hereto or their
respective successors or assigns. The terms of this Agreement are contractual
in
nature and not merely recitals.
14. This
Agreement shall be governed by and construed, interpreted and enforced under
and
in accordance with the laws of the State of New York without giving effect
to
its rules and decisions on conflicts of laws. Venue for any cause of action
brought pursuant to this Agreement shall be in the state or federal courts
located in New York County, New York.
15. The
parties to this Agreement shall pay their own expenses, including legal fees,
incurred in resolving this Dispute and in preparing and executing this
Agreement.
16. The
parties understand, acknowledge, and agree that if any fact now believed to
be
true is found hereafter to be other than, or different from, that which is
now
believed, the parties expressly assume the risk of such difference in fact
and
agree that this Agreement shall be and will remain effective, notwithstanding
any such difference in fact.
17. The
parties agree that both the existence and the terms of this Agreement are
strictly confidential and will not be disclosed or discussed with any other
person without the prior written consent of the other party, with the exception
of disclosures required by court order or by law or disclosures to their
respective tax consultant, financial advisor, or attorney or to designated
taxing authorities or state or local entities; provided, however, that the
parties agree and acknowledge that this Agreement may be described and attached
as an exhibit to a current report on Form 8-K to be filed by Celsia.
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IN
WITNESS WHEREOF,
the
undersigned have executed the above and foregoing Agreement upon the day and
year written below.
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| By: | /s/ Xxxxxxx
Xxxxxxxxx
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Its:
Chief Financial Officer
Date:
July 18, 2007
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AMF
Capital, Inc.
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| By: | /s/
Xxxxxxx X. Xxxxx, Xx.
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Its:
President
Date:
July 18, 2007
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EXHIBIT
A
Form
of Warrant
(Attached)
5
