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TEXT OMITTED
AND FILED SEPARATELY CONFIDENTIAL TREATMENT REQUESTED UNDER 17
C.F.R. SECTIONS 200.80(b)(4) and 230.406
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This Termination Agreement (this
“Agreement”) is entered into this 3rd day of April,
2009 by and between Stellar Satellite Communications Ltd., a
British Virgin Islands company (“Stellar”), with its
offices located at 46050 Manekin Plaza, Suite 100, Dulles, VA
20166, and GE Asset Intelligence, LLC, a Delaware limited liability
company (“GEAI”), with offices located at 200
Martingale Road, Suite 1100, Schaumburg, IL 60173.
WHEREAS , GEAI operates an asset tracking and monitoring
business (the “GEAI Business”) under which among other
things it provides to its customers (“Subscribers”)
telematics and machine-to-machine communication between
Subscribers’ communicators sold or managed by or on behalf of
the GEAI Business (“Subscriber Communicators”) and the
GEAI Business’s communications centers (“GEAI
Communications Centers”);
WHEREAS, Stellar and GEAI (the “Parties”)
entered into a letter agreement dated October 10, 2006 with
respect to the purchase and development of certain Subscriber
Communicators and certain purchase orders with respect thereto (the
“2006 Agreement”);
WHEREAS, the Parties wish to resolve certain disputes
arising out of the 2006 Agreement and to strengthen their
relationships in light of current economic conditions and the
development of the asset tracking industry; and
WHEREAS , on the date hereof, GEAI is paying to Stellar
Eight Hundred Thousand Dollars ($800,000) (the “Settlement
Amount”);
NOW, THEREFORE , in consideration of the covenants and
agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties agree as follows:
(a) The
Parties hereby agree that the obligations of GEAI to purchase, and
the obligations of Stellar to sell and develop, Satellite
Communicators under the 2006 Agreement, together with any pricing
set forth therein, are hereby terminated,
whether such
obligations are past due, currently due or due in the future (the
“Purchase and Sale Obligations”). In addition, the
Parties agree that the obligations of Stellar with respect to the
profit sharing arrangement relating to the ST 2500 units that GEAI
has exchanged for DS 300 units prior to the date hereof, are hereby
terminated, whether such obligations are past due, currently due or
due in the future (the “Profit Sharing
Obligations”).
(b) Effective upon receipt by Stellar of
the Settlement Amount, the Parties hereby forever release, acquit,
and discharge, and covenant not to sue, each other and each of
their respective successors, parents, subsidiaries, trustees of
each, and affiliates and each of their respective past, present and
future officers, directors, stockholders, partners, agents,
representatives and attorneys from any and all claims and possible
claims, demands, sums of money actions, rights, obligations and
liabilities of whatever kind, nature or description, direct or
indirect, whether or not accrued or asserted, in law or in equity,
in contract or in tort or otherwise, made or could have been made,
in any of the foregoing cases arising out of the Purchase and Sale
Obligations and/or the Profit Sharing Obligations.
(c) Nothing in this Agreement shall
terminate, release or affect (i) the warranty and related
obligations of Stellar with respect to Satellite Communicators
previously delivered and paid for by GEAI or its affiliates whether
under the 2006 Agreement or otherwise (“Delivered
Communicators”), and the obligations of GEAI arising in
connection with such warranty and related obligations of Stellar,
(ii) any obligations of Stellar to indemnify, defend and hold
harmless under the purchase orders issued in connection with the
2006 Agreement or otherwise with respect to losses, liabilities and
costs arising out of actions, proceedings, suits, cases or claims
of third parties with respect to Delivered Communicators,
(iii) the confidentiality agreements between the Parties,
(iv) the ownership of or rights in any intellectual property
or (v) any obligations under the purchase orders referenced
above to execute or deliver and to cause others to execute and
deliver instruments or transfers to perfect such rights and
ownership.
SECTION 2
REPRESENTATIONS AND WARRANTIES
Each of the
Parties represents to the other that as of the date hereof with
respect to the representing Party:
(a) It has
been duly organized and is validly existing and in good standing
under the laws of the jurisdiction of its incorporation and has all
requisite power and authority to conduct its business, to own its
properties and to execute, deliver and perform its obligations
under this Agreement.
(b) The
execution and delivery of this Agreement by it and the performance
of its obligations hereunder have been duly authorized by all
necessary corporate or other action, and do not and will not
violate any provision of any law, rule,
2
regulation or
contractual or corporate, partnership or other restrictions binding
on it.
(c) This
Agreement constitutes its legal, valid and binding obligation,
enforceable in accordance with the terms hereof. If GEAI or its
successors or representatives shall attempt to void, rescind or
otherwise set aside the releases, terminations or other
transactions contemplated by this Agreement, except in response to
an attempt to do so by Stellar or its successors or
representatives, and GEAI or its successors or representatives do
actually void, rescind or otherwise set aside the releases,
terminations or other transactions contemplated by this Agreement
as evidenced by a final, non-appealable court or arbitral order,
there shall be a “GEAI Default
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