Exhibit
10.1
RELEASE AND
SETTLEMENT AGREEMENT
This RELEASE
AND SETTLEMENT AGREEMENT ("Agreement"), dated as of September 22,
2009, is entered into among LoJack Equipment Ireland, Limited
("LoJack Ireland"), LoJack Corporation ("LoJack Corp."), LoJack
Cyprus Limited a.k.a "AnJie China Holdings Limited" ("LoJack
Cyprus") and LoJack Operating Company, L.P. (together, "LoJack
Entities") and Kington Holdings Limited ("Kington"), Chinapac
Limited ("Chinapac"), Pinpoint Vehicles Services Limited d.b.a. and
a.k.a. "LoJack (HK)" ("PPVSL"), Pinpoint Vehicle Holdings Ltd.
("PPVHL"), The Location Group Ltd., The Location Company Limited,
Global Team Services Ltd., Beijing LoJack Ki Electronic Technology
Ltd. a.k.a. "Beijing LoJack Ki Company Ltd." ("LoJack
Ki"), Beijing Tracker Technology, Ltd. ("Beijing Tracker"),
Kington Beijing Technology Co. Ltd. ("Kington Beijing"), Michael
Tang, Jonathan Lewis-Evans, Alexander Key and Martin Fairbairn
(together, "Kington Entities").
WHEREAS,
the LoJack Entities and the Kington Entities contemplated a stolen
vehicle recovery business in the People’s Republic of China
("Mainland China Business");
WHEREAS,
in November 2006, LoJack Ireland and Kington entered into a
Technology License, Patent, Trademark and Supply Agreement for the
Mainland China Business (the “License
Agreement”);
WHEREAS,
Kington and other Kington entities in conjunction with the License
Agreement and the Mainland China Business actually or allegedly
entered into the following agreements:
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1.
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Loan
Agreement dated November 12, 2006, and an amendment thereto dated
April 2, 2007 by and between LoJack Corp. and Chinapac ("Loan
Agreement");
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2.
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Promissory
Note in the amount of USD $750,000.00 dated November 12, 2006 from
Kington as Borrower to LoJack Corp. ("Promissory
Note");
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3.
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Secured
Promissory Note in the amount of USD $750,000.00 dated November 12,
2006 from Chinapac as Borrower to LoJack Corp. ("Secured
Promissory Note");
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4.
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Charge/Debenture
dated November 12, 2006 between Chinapac as Borrower and LoJack
Corp. as Lender ("Chinapac Charge/Debenture");
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5.
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Charge/Debenture
dated November 12, 2006 (and allegedly reissued December 17,
2007) between PPVSL as Guarantor and LoJack Corp. as
Lender ("PPVSL Charge/Debenture");
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6.
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Structure and
Assets Pledge Letter dated November 12, 2006 from The Location
Group Ltd., Global Team Services Ltd., The Location Company
Limited, Chinapac, PPVHL, PPVSL and Kington to LoJack
Corp. ("Pledge Letter");
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7.
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Warrant to
Subscribe to Shares dated November 12, 2006 from Kington as the
Company to LoJack as the Subscriber ("Warrant");
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8.
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Guarantee
dated November 12, 2006 between PPVSL as Guarantor and LoJack Corp.
as Lender ("PPVSL Guarantee");
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9.
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Consulting
Agreements dated September 1, 2005 among Michael Tang, Jonathan
Lewis-Evans, Alexander Key and LoJack Cyprus and LoJack
Corp. ("Consulting Agreements");
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10.
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Settlement
Agreement dated December 5, 2006 among LoJack Ireland, AnJie China
Holdings Limited, LoJack Operating Company, L.P., Kington and
Beijing LoJack Ki Company Ltd., among others ("DHCC Settlement
Agreement"); and
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11.
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Agreement
made on or about November 12, 2006 referenced in the Hong Kong
Action defined below (together with the License Agreement, the
"Parties' Agreements") ("November 12
Agreement").
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WHEREAS,
LoJack Ki was formed in part to hold the license for the Mainland
China Business radio frequency and then was designated to serve
certain operational functions for Kington in connection with the
Mainland China Business;
WHEREAS,
Beijing Tracker was formed in part to provide certain services in
connection with the Mainland China Business;
WHEREAS,
Kington Beijing was formed in part to provide certain services in
connection with the Mainland China Business;
WHEREAS,
disputes have arisen among the parties hereto concerning the
Parties' Agreements;
WHEREAS,
Chinapac and Kington collectively owe the sum of approximately USD
$953,762.86 with further interest to accrue at a rate of USD $54.79
per diem through closing to LoJack Corp., which interest will be
waived at Closing;
WHEREAS, LoJack
Ireland and Kington are parties to a certain arbitration proceeding
before the International Centre for Dispute Resolution of the
American Arbitration Association, bearing case No. 50 133 T 00433
07 (the "Arbitration") concerning the termination of the License
Agreement;
WHEREAS,
LoJack Ireland and Kington are also parties to a certain proceeding
before the United States District Court for the District of
Massachusetts bearing Docket No. 1:09-11014 ("Federal
Action");
WHEREAS,
LoJack Corp. and Kington are parties to a certain proceeding before
the Norfolk Superior Court in Dedham, Massachusetts bearing Docket
No. 08-1815 ("Norfolk Action");
WHEREAS,
LoJack Ireland, LoJack Corp., Kington, Chinapac and PPVSL are named
as parties to a certain proceeding filed with the High Court of the
Hong Kong Special Administrative Region, Action No. 1702 of 2009
("Hong Kong Action");
WHEREAS,
the parties wish to and have agreed to resolve, compromise, adjust,
dispose of and finally settle all pending and any other potential
claims and disputes among themselves, including those arising under
the Parties' Agreements and in the Arbitration, the Federal Action,
the Norfolk Action and the Hong Kong Action subject to the terms
hereof; and
WHEREAS,
PPVSL and PPVHL conduct a business for the sale of LoJack and
LoJack Ireland products in Hong Kong pursuant to a license
agreement between LoJack International Corporation and Regency
2000, Ltd. (now known as PPVSL) dated June 21, 1999 ("Hong Kong
Business");
NOW
THEREFORE, in consideration of the mutual promises contained herein
and other good and valuable consideration, the adequacy of which is
hereby acknowledged, the parties agree as follows:
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1.
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Closing
. The
closing of the transactions contemplated hereby (the "Closing")
will take place three (3) business days from the date of the
last signature affixed to this Release and Settlement
Agreement or such other date as agreed to in writing by
Kington and LoJack Ireland ("Closing Date"). At or prior
to the Closing, all of the actions and payments required to be made
pursuant to this Agreement specifically pursuant to Sections
2, 4(a), 5 and 6 shall have taken place and be fully
effective. Any such action or payment shall be
ineffective and void, and subject to rescission, unless all such
actions and payments shall have taken place and be fully
effective.
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2.
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Actions
Dismissed . The
Arbitration, Federal Action, Norfolk Action and Hong Kong
Action (together, "Actions"), which the parties represent are
the only actions between, among or against the Parties, shall be
dismissed with prejudice, and the parties shall take all necessary
steps to cause such dismissal of their respective claims, including
filing mutually agreeable stipulations of dismissal.
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The parties
shall bear their own costs and attorneys' fees in connection with
the above Actions and share equally the arbitrator's administrative
costs and fees incurred in the Arbitration.
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3.
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Agreements
Terminated . Effective
as of the Closing Date following the satisfaction of all conditions
to close contained in this Agreement, including pursuant to
Sections 2, 4, 5 and 6 of this Agreement, the Loan Agreement, the
Promissory Note, the Secured Promissory Note, the Chinapac
Charge/Debenture, the PPVSL Guarantee, the Pledge Letter, the
Warrant, the PPVSL Charge/Debenture, the Consulting Agreements, and
the November 12, 2006 Agreement (together, the "Parties'
Agreements") shall be deemed terminated and without any legal
meaning or effect whatsoever as between the parties to this Release
and Settlement Agreement.
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4.
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Return of
Inventory and Equipment .
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(a)
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The Kington
Entities shall convey, transfer, assign and deliver to LoJack
Ireland all of the Kington Entities' right, title and interest in
and to any and all system inventory and equipment acquired from a
LoJack Entity or utilizing or incorporating LoJack patents or
proprietary information ("Return"), provided however that, as a
condition to Closing, the Return shall include only the inventory
and equipment listed in Exhibit B under the heading
"Available." LoJack Ireland shall procure that its
authorized representative at No. 7 Jiu Xian Qiao Bei Lu, Chao Yang
Dist. Beijing collects the said inventory and equipment.
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(b)
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If, at the
Closing, the Return shall not be complete, specifically with
respect to the equipment listed in Exhibit B under the heading
"Unavailable",the Kington Entities shall (i) pay at Closing to
LoJack Ireland or its authorized representative the invoice price
thereof; (ii) use all reasonable efforts to recover the same as
soon as possible after Closing; (iii) transfer to LoJack Ireland
all assets and rights, including all monies, received in respect of
such inventory and equipment and hold inventory and equipment in
trust for LoJack Ireland; (iv) not use the same for any purpose
whatsoever; (v) not attempt to disassemble, copy, or reverse
engineer the same; (vi) deliver the inventory and equipment to
LoJack Ireland or its authorized representative at the address
aforesaid against repayment of the invoice price
thereof.
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(a)
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At Closing,
LoJack Corp. shall pay Kington the sum of USD $9,125,000.00 and
LoJack Ireland shall pay Kington the sum of USD $9,125,000.00 for a
total, net of any and all deductions, of USD
$18,250,000.
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The payments
shall be made by wire transfer to the IOLTA Account of Sally &
Fitch LLP hereby designated by Kington and the payment shall be
held, prior to closing, in escrow by a third-party Escrow Agent
pursuant to an Escrow Agreement and shall not be
released by the Escrow Agent until after all other actions required
to be taken pursuant to this Agreement, specifically pursuant to
Section 2, 4(a) and 6, shall have taken place and be fully
effective.
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(b)
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At Closing,
LoJack Corp. shall deliver written documentation confirming the
discharge and full forgiveness of any and all remaining balance of
principal and interest due on (i) the Promissory Note in the
original amount of USD $750,000.00 and (ii) the Secured Promissory
Note in the original amount of USD $750,000.00.
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6.
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Releases
. The
exchange among the parties of the consideration provided for herein
shall constitute a full and final resolution of all disputes among
them including any and all Claims based on any event or matter
occurring on or before the effectiveness of these Releases,
including, without limitation, any and all Claims based upon,
arising out of, or related to or by reason of the Parties'
Agreements and any of the transactions contemplated thereby, the
subject matters of the Actions and the Hong Kong
Business. The Kington Entities hereby further agree to
release any and all Claims based upon any event or matter occurring
after the effectiveness of the Releases arising out of, related to,
or by reason of the delivery by LoJack Ireland of alternative
product(s) for the Hong Kong Business and the Kington
Entities’ non-participation in and lack of access to the GTAC
database. At the Closing, the parties shall deliver
executed copies of the releases attached as Exhibit A, which are
part and parcel to this Agreement.
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7.
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Standstill.
Each
of the Kington Entities agrees for a period of three (3) years
commencing on the date hereof, not to, directly or indirectly,
unless specifically requested to do so in advance by the Chief
Executive Officer or board of directors of LoJack Corp. or except
as expressly agreed to in writing by the parties: (a)
effect or seek, offer or propose publicly to effect, or publicly
announce any intention to effect or cause or participate in or in
any way assist, facilitate or encourage any other Person to effect
or seek, offer or propose (whether publicly or otherwise) to effect
or participate in, (i) any acquisition of any securities (or
beneficial ownership thereof), or rights or options to acquire any
securities (or beneficial ownership thereof), or any
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assets,
indebtedness or businesses of LoJack Corp. or any of its
affiliates, (ii) any tender or exchange offer, consolidation,
business combination, acquisition, merger, joint venture or other
business combination involving LoJack Corp., any of its affiliates
or any of the assets of LoJack Corp. or its affiliates, (iii) any
recapitalization, restructuring, liquidation, dissolution or other
extraordinary transaction with respect to LoJack Corp. or any of
its affiliates, or (iv) any “solicitation” of
“proxies” (as such terms are used in the proxy rules of
the Securities and Exchange Commission) to vote any voting
securities of LoJack Corp. or any of its affiliates or consents to
any action from any holder of any voting securities of LoJack Corp.
or any of its affiliates or seek to advise or influence any Person
with respect to the voting of or the granting of any consent with
respect to any voting securities of LoJack Corp.; (b) form, join or
in any way participate in a “group” (as defined under
the Securities Exchange Act of 1934, as amended) in connection with
the voting securities of LoJack Corp. or otherwise act in concert
with any person in respect of any such securities; (c) otherwise
act, alone or in concert with others, to seek representation on or
to control or influence the management, board of directors or
policies of LoJack Corp. or to obtain representation on the board
of directors of LoJack Corp.; (d) enter into any discussions or
arrangements with any third party with respect to any of the
foregoing; (e) request that LoJack Corp. or any of its
Representatives amend or waive any provision of this paragraph, or
make any public announcement with respect to the restrictions of
this paragraph, or take any action which would reasonably be
expected to require LoJack Corp. make a public announcement
regarding the possibility of a business combination or merger; or
(f) advise, assist or encourage, or direct any person to advise,
assist or encourage any other persons, in connection with any of
the foregoing. “ Person ” shall be
broadly interpreted to include, without limitation, the media and
any individual, corporation, company, partnership, limited
liability company, or other entity or group. As used in
this Agreement, the term “ affiliate ” shall
mean any other Person that directly, or indirectly through one or
more intermediates, controls, is controlled by, or is under common
control with, such Person. “
Representatives ” shall mean, collectively, a
party’s directors, officers, affiliates, employees, agents,
representatives, accountants, financial, legal and other advisors,
or potential debt or equity financing sources.
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8.
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Representations.
The
Kington Entities represent as follows as of the date hereof and
through the Closing:
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(a)
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There are no
third-party outstanding judgment, order, writ, injunction,
settlement, decree, litigation, claims, actions, suits, charges,
complaints, arbitrations, proceedings or governmental
investigations, pending or threatened against the Kington Entities,
any of their subsidiaries, respective directors, officers or
employees in their respective capacities as such, arising out of,
resulting from and/or in connection in any matter
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whatsoever
with the Kington Entities' (1) establishment and operation of the
Mainland China system, (2) sale and installation of any products
for the Mainland China business, (3) conduct of the Mainland China
Business, and (4) the Parties' Agreements.
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(b)
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Other than
with respect to the Hong Kong Business, the Kington Entities have
had no communications with, and have received no information from,
employees of the LoJack Entities other than Richard Riley and
Ronald Waters
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