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SETTLEMENT AGREEMENT AND RELEASE

Settlement Agreement

SETTLEMENT AGREEMENT AND RELEASE | Document Parties: Horizon Navigation, Inc. | Cobra Electronics Corporation You are currently viewing:
This Settlement Agreement involves

Horizon Navigation, Inc. | Cobra Electronics Corporation

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Title: SETTLEMENT AGREEMENT AND RELEASE
Governing Law: Illinois     Date: 3/31/2006
Industry: Communications Equipment     Sector: Technology

SETTLEMENT AGREEMENT AND RELEASE, Parties: horizon navigation  inc. , cobra electronics corporation
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Exhibit 10.33

CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT WAS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE 24b-2, PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, OMITTED INFORMATION WAS REPLACED WITH ASTERISKS.

SETTLEMENT AGREEMENT AND RELEASE

This Settlement Agreement and Release (the “Agreement”) is made and entered into effective as of December 30, 2005, by and between Horizon Navigation, Inc., a California corporation (“Horizon”), and Cobra Electronics Corporation, a Delaware corporation (“Cobra”), with reference to the following facts:

A. Horizon and Cobra have entered into (i) the Amended and Restated Loan Agreement by and between Horizon and Cobra dated February 6, 2003 (the “Loan Agreement”); (ii) Stockholders’ Agreement by and among Horizon, Cobra and certain shareholders of Horizon dated January 8, 2003 (the “Stockholders’ Agreement”); (iii) Development and License Agreement by and between Horizon and Cobra dated January 8, 2003, as amended and supplemented (the “Development Agreement”); (iv) Pledge and Security Agreement by and between Horizon and Cobra dated February 6, 2003 (the “Security Agreement”); and (v) Escrow Agreement by and among Horizon, Cobra and DSI Escrow Services, Inc. (“DSI”), as escrow agent dated August 31, 2004 (the “Escrow Agreement”) (the Loan Agreement, Stockholders’ Agreement, Development Agreement, Security Agreement, and Escrow Agreement are collectively referred to as the “Horizon-Cobra Agreements”).

B. Pursuant to the Loan Agreement, Cobra received both callable and non-callable warrants to purchase Common Stock of Horizon dated as of February 6, 2003, February 19, 2003, April 3, 2003, July 29, 2003, June 7, 2004 and April 1, 2005, respectively (collectively, the “Warrants”).

C. Horizon and Cobra have agreed to the terms and conditions contained herein providing for (i) the repayment by Horizon to Cobra of all amounts of principal and interest outstanding under the Loan Agreement, and (ii) settlement of outstanding issues between the parties as set forth herein, with all such arrangements to be effective as of the Settlement Date (as defined in Section 4).

NOW, THEREFORE, in consideration of the promises, covenants and undertakings contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1. Payment .

1.1 In full satisfaction of any and all amounts owed to Cobra under the Loan Agreement, Horizon shall pay Cobra on the Settlement Date, $2,674,335 (the “Loan Repayment Amount”) by wire transfer of immediately available funds to the following account: ***.


1.2 In consideration of the termination of certain obligations of Horizon under the Development Agreement as set forth herein, including, without limitation, the termination of Cobra’s exclusivity rights and rights of first refusal under the Development Agreement and the agreement of Cobra not to use Horizon Technology (as defined in the Development Agreement) in future generations of mobile navigation products, on the Settlement Date Horizon shall reimburse Cobra for $*** of fees paid by Cobra to Horizon under the Development Agreement (the “Fee Reimbursement Amount”) by wire transfer of immediately available funds to the following account: *** (the Fee Reimbursement Amount and Loan Repayment Amount are collectively referred to as the “Payment Amount”).

2. Development Agreement and License Grant .

2.1 Termination of Development Agreement . Except as provided in this Agreement, the Development Agreement shall terminate in its entirety, no terms and conditions shall survive such termination and Horizon is released from all obligations thereunder.

2.2 License Grant Regarding GPSM 3000 and GPSM 2750 Products . Effective as of the Settlement Date, the license granted by Horizon to Cobra under Section 3.1 of the Development Agreement shall terminate and Horizon hereby grants to Cobra a non-exclusive***perpetual license limited to the GPSM 3000 and the GPSM 2750 Products (as defined in Exhibit A ) in all channels of distribution throughout ***. The foregoing license shall be ***. The foregoing license shall include a license under all Horizon Technology (as defined in the Development Agreement) for the foregoing purposes only, including without limitation: (i) the right to make, have made, use, offer to sell, sell, and import anywhere in the *** the GPSM 3000 and GPSM 2750 Products containing inventions covered by one or more claims of the Patents; (ii) the right to copy, display, develop, modify and enhance the Horizon Technology (but excluding the right to create Derivative Works of software included in the Horizon Technology), in each case for the purposes of incorporating the same into the GPSM 3000 and GPSM 2750 Products and marketing and selling the GPSM 3000 and GPSM 2750 Products throughout the ***; and (iii) the right to use and include Trade Secrets within the GPSM 3000 and GPSM 2750 Products. Cobra shall not have the right to sublicense any of the rights licensed hereunder, except to an Affiliate (as defined in the Development Agreement) or to the extent necessary for Cobra to have the GPSM 3000 and GPSM 2750 Products or component thereof manufactured for Cobra by a third party.

2.3 Indemnification for Royalty Payments to Third Party Technology Providers . Cobra hereby assumes all liability with regard to the payment of required royalty payments to the Third Party Technology Providers under the Development Agreement for Third Party Technology (as defined in the Development Agreement) in connection with Cobra’s license to the GPSM 3000 and GPSM 2750 Products. Cobra shall continue to be solely responsible for paying the Third Party Technology Providers after the termination of the Development Agreement as described herein and Cobra hereby agrees to indemnify and hold Horizon harmless from any claims, damages, liabilities, costs and expenses, including reasonable legal expenses and reasonable counsel fees, arising as a result of Cobra’s failure to pay the required royalty payments owed by Cobra to the Third Party Technology Providers under the Development Agreement.

 

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2.4 End-User License . In connection with the sale of GPSM 3000 and the GPSM 2750 Products (whether before or after the Settlement Date), each end-user customer of Cobra shall be deemed to have been granted a personal, non-exclusive, non-transferable, royalty free license, for the life of the applicable GPSM 3000 or GPSM 2750 Product, to use the Horizon Technology embodied within such GPSM 3000 or GPSM 2750 Product. The expiration or termination of the Development Agreement shall not terminate any end-user license.

2.5 No Other Restrictions on Cobra . Nothing in this Agreement shall be construed as preventing or limiting the right of Cobra to develop, manufacture, distribute, sell and service GPS products other than GPSM 3000 or GPSM 2750 Products so long as such products do not utilize or incorporate any Horizon Technology or Horizon Materials.

2.6 Reservation of Rights . Except as expressly provided in this Agreement, no license in the Horizon Technology is granted (by implied license or otherwise) in the Territory (as defined in the Development Agreement) by Horizon to Cobra, and Horizon may, without restriction or liability to Cobra, directly or indirectly, develop, manufacture, sell and service products of any nature in any territory.

2.7 Support . Horizon and Cobra agree that Horizon shall provide Cobra with error correction and bug fix support services for the GPSM 3000 and GPSM 2750 Products through ***, as set forth in Exhibit B , attached hereto. Horizon shall have no obligation to provide any support hereunder due to Cobra’s modifications of the GPSM 3000 and GPSM 2750 Products. In addition, Horizon will provide database updates for the GPSM 3000 and GPSM 2750 Products on the following schedule:

***.

Cobra shall pay Horizon a fee of $*** upon delivery of each annual database update. Horizon warrants that all support services provided under Exhibit B and the quality control services with respect to each annual database update will be performed in a professional and workmanlike manner in accordance with the highest applicable professional standards. Horizon will reperform any services that are not in conformity with the foregoing warranty. The duration of the warranty shall be *** from the date of delivery of the service.

2.8 Confidentiality . The confidentiality provisions contained in Sections 8.1 through 8.6 of the Development Agreement shall survive through ***.

2.9 Survival of Certain Provisions . The following provisions of the Development Agreement shall survive without any time limitation (except for the provisions listed in clause (iv) below which shall survive for the respective periods set forth in clause (iv)):

(i) Definitions: Section 1 (capitalized terms used in Sections 2.1 – 2.9 of this Agreement but not defined in this Agreement shall have the meanings given to such terms in the Development Agreement)

 

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(ii) Property Rights: Sections 7.1, 7.2, 7.3 (as to Assigned Work Product produced prior to the date hereof), 7.4 and 7.5

(iii) Warranties: Sections 9.1 through 9.4

(iv) Indemnification: With respect to the GPSM 3000 and GPSM 2750 Products (as defined in Exhibit A), Sections 10.1 through 10.3 (***); the indemnification provisions set forth in Section 10.1 shall survive (x) without any time limitation with respect to clause (b) of such Section (y) until *** with respect to clauses (a) and (c) of such Section and clause (d) of such Section, except as it relates to Sections 8.1 through 8.6 of the Development Agreement, and (z) until *** with respect to clause (d) of such Section as it relates to Sections 8.1 through 8.6 of the Development Agreement; the indemnification provisions set forth in Section 10.2 shall survive (x) without any time limitation with respect to clause (b) of such Section and clause (c) of such Section as it relates to Sections 9.2, 9.3 and 9.4 of the Development Agreement (y) until *** with respect to clause (a) of such Section, clause (c) of such Section as it relates to representations and warranties of Horizon contained in the Development Agreement, other than those contained in Sections 9.2, 9.3 and 9.4, and clause (d) of such Section, except as it relates to Sections 8.1 through 8.6 of the Development Agreement, and (z) until *** with respect to clause (d) of such Section as it relates to Sections 8.1 through 8.6 of the Development Agreement; the provisions set forth in Section 10.3 shall survive without any time limitation.

(v) Trademarks: Sections 12.1 (limited to the use of the Horizon Trademarks by Cobra as of the date hereof) and 12.2

(vi) Consequences of Termination: Section 13.5(c) (except clause (ii) thereof)

(vii) The following General Provisions:

 

 

 

 

15.1

  

Governing Law

 

 

15.4

  

Partial Invalidity

 

 

15.6

  

Modification

 

 

15.8

  

Waiver

 

 

15.9

  

Entire Agreement

 

 

15.11

  

Independent Contractors

 

 

15.12

  

Third Party Beneficiaries

 

 

15.13

  

Notices

 

 

15.14

  

NO CONSEQUENTIAL DAMAGES

 

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3. Termination of Agreements . Effective as of the Settlement Date, Cobra and Horizon agree as follows:

(a) The Loan Agreement shall terminate in its entirety and no terms and conditions shall survive such termination and Horizon is hereby released from all obligations thereunder; provided that the third and fourth sentences of Section 11.05 of the Loan Agreement shall survive such termination and shall remain in full force and effect;

(b) The Warrants (callable and non-callable) issued to Cobra pursuant to the Loan Agreement shall terminate in their entirety and Cobra shall have no right to exercise the Warrants or claim any right to purchase securities pursuant to the Warrants. Cobra shall return all executed original Warrants to Horizon for cancellation;

(c) The Stockholders’ Agreement shall terminate in its entirety, subject to the necessary approval by the shareholders of Horizon, and no terms and conditions shall survive such termination and Horizon is hereby released from all obligations thereunder;

(d) The Security Agreement shall terminate in its entirety, notwithstanding Section 8.12 thereof, and no terms and conditions sha


 
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