Exhibit 10.23
SETTLEMENT AND RELEASE AGREEMENT
This SETTLEMENT AND RELEASE
AGREEMENT (the “Agreement”) is made as of this 10th
day of December, 2007, by and between Solar Enertech Corp., a
Nevada corporation (the “Corporation”), and Coach
Capital LLC, a Delaware limited liability company
(“Coach”). The Corporation and Coach may hereinafter be
referred to individually as a “Party”, and,
collectively, as the “Parties”.
WHEREAS, the Corporation is
obligated to pay to the order of Coach an aggregate principal
amount, together with all interest accrued thereon through the date
hereof, of $795,095.89 pursuant to the terms of certain promissory
notes issued in favor of Coach during the period of May 8,
2006 through January 24, 2007 (collectively, the “Solar
Notes”), copies of which Solar Notes are annexed hereto as
Exhibit A;
WHEREAS, the Corporation is
obligated to pay to the order of Coach an aggregate principal
amount of $450,000 pursuant to the terms of a certain promissory
note issued in favor of Infotech Essentials, Inc. and assigned to
Coach in accordance with the terms of a certain assignment
agreement (the “Assignment Agreement”) dated of even
date herewith (the “Infotech Note”, and, together with
the Solar Notes, the “Promissory Notes”), a form of
which Assignment Agreement and copy of which Infotech Note are
annexed hereto as Exhibits B and C, respectively;
WHEREAS, the Parties now
desire that all amounts outstanding and due to Coach under the
terms of the Promissory Notes be satisfied in full; and
WHEREAS, in accordance with
the terms and conditions of this Agreement, the Corporation desires
to issue to Coach, and Coach desires to acquire from the
Corporation, that number of shares of the Corporation’s
common stock, par value $0,001 per share (the “Common
Stock”), equal to the aggregate outstanding principal balance
of the Promissory Notes together with all interest accrued thereon
through the date hereof, such amount being equal to $1,245,095.89
(the “Note Balance”) divided by $1.20 (and rounded up
to the nearest whole share) (i.e., 1,037,580 shares of
Common Stock (the “Shares”)) in full satisfaction of
the Note Balance.
NOW, THEREFORE, in
consideration of the premises and mutual covenants contained
herein, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Parties
intending to be legally bound do hereby agree as follows:
1. Settlement and
Satisfaction of the Note Balance. Upon execution of this
Agreement or as at a time as soon as reasonably practicable
thereafter, the Corporation shall deliver to Coach, and Coach shall
accept from the Corporation, a certificate or certificates
representing the Shares to be issued hereunder registered in the
name of Coach in full satisfaction of the Note Balance.
2. Mutual and General
Releases. In consideration of and subject to performance of the
obligations contained herein:
(a) Coach
hereby releases and forever discharges the Corporation and its
individual, joint or mutual, past, present and future
representatives, affiliates, stockholders, controlling persons,
officers, directors, subsidiaries, successors and assigns from any
and all claims, demands, proceedings, causes of action, orders,
obligations, contracts, agreements, debts and liabilities
whatsoever, whether known or unknown, suspected or unsuspected,
both at law and
1
in
equity, which Coach now has, has ever had or may hereafter have
against the Corporation for any obligation or claim arising out of
or related to the Promissory Notes.
(b) the
Corporation hereby releases and forever discharges Coach and its
individual, joint or mutual, past, present and future
representatives, affiliates, stockholders, controlling persons,
officers, directors, subsidiaries, successors and assigns from any
and all claims, demands, proceedings, causes of action, orders,
obligations, contracts, agreements, debts and liabilities
whatsoever, whether known or unknown, suspected or unsuspected,
both at law and in equity, which the Corporation now has, has ever
had or may hereafter have against Coach for any obligation or claim
arising out of or related to the Promissory Notes.
3. Representations and
Warranties of Coach. Coach hereby represents and warrants to
the Corporation as follows:
3.1
Authorization. This Agreement constitutes Coach’s valid
and legally binding obligation, enforceable in accordance with its
terms except as may be limited by (a) applicable bankruptcy,
insolvency, reorganization or other laws of general application
relating to or affecting the enforcement of creditors’ rights
generally, (b) applicable federal or state securities laws
limits on indemnification, and (c) the effect of rules of law
governing the availability of equitable remedies. Coach represents
that he has full power and authority to enter into this
Agreement.
3.2
Purchase for Own Account. The Shares to be acquired by Coach
hereunder will be acquired for investment purposes and for
Coach’s own account, not as a nominee or agent, and not with
a view to the public resale or distribution thereof within the
meaning of the Securities Act of 1933, as amended (the
“Act”), and Coach has no present intention of selling,
granting any participation in, or otherwise distributing the
Shares.
3.3
Investment Experience. Coach understands that acquisition of
the Shares involves substantial risk. Coach has experience as an
investor in securities of companies in the development stage and
acknowledges that it is able to fend for itself, can bear the
economic risk of an investment in the Share and has such knowledge
and experience in financial or business matters that it is capable
of evaluating the merits and risks of an investment in the Shares
and p
