Exhibit 10.1
LETTER AGREEMENT
This Letter Agreement (the "Agreement") dated July 27, 2006, is between
Alfred "Ted" Curmi ("Curmi") and Incentra Solutions, Inc. ("Incentra"), who
shall collectively be referred to as the "Parties".
RECITALS
WHEREAS, Curmi holds an arbitration award in his favor and against
Incentra issued by Judge William Meyer of the Judicial Arbiter Group (the
"Arbitrator") dated July 7, 2006 in the amount of $2,574,162.50 exclusive of
interest subsequent to April 5, 2006 (the "Award").
WHEREAS, Curmi claims entitlement under the Award to add to the Award
his attorneys' fees, costs and expenses of $255,000 and, based on the terms of
the Award, Incentra disputes this claim.
WHEREAS, Curmi currently owns 1,135,580 shares of Incentra common stock
("Curmi Stock").
WHEREAS, Curmi and Incentra are parties to a case captioned CURMI V.
INCENTRA, Case Number 05CV7371, currently pending in District Court, City and
County of Denver, Colorado (the "Lawsuit").
WHEREAS, Curmi and Incentra are parties to a Promissory Note made by
Incentra and held by Curmi dated February 18, 2005 (the "Note").
WHEREAS, Curmi and Incentra are also parties to a Consulting Agreement
dated February 18, 2005 (the "Consulting Agreement").
WHEREAS, the Parties desire to enter into this Letter Agreement in order
to provide 30 days during which Incentra can attempt to raise funds to pay Curmi
in satisfaction of the Award.
NOW THEREFORE, in consideration of the foregoing, the mutual promises
set forth in this Letter Agreement, and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the Parties agree
as follows:
AGREEMENT
1. PAYMENTS UPON EXECUTION OF AGREEMENT. Upon execution of this Letter
Agreement, Incentra will make two payments to Curmi. First, Incentra
will pay Curmi the sum of $255,000 by wire transfer in satisfaction of
Curmi's claim for
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his attorneys' fees and costs referred to in the Award. Incentra hereby
stipulates to the reasonableness of these fees and costs and agrees
that, immediately following execution of this Agreement, Curmi may file
a stipulated motion with the Arbitrator to amend his Award to include
$255,000 in fees and costs to date. Second, upon execution of this
Letter Agreement, Incentra will make a second payment to Curmi in the
sum of $250,000 by wire transfer toward satisfaction of the Award.
2. PAYMENT AND SATISFACTION OF AWARD. Immediately following execution of
this Letter Agreement, Incentra will take steps to attempt to raise
capital for the purpose of paying Curmi. Curmi will accept payment by
Incentra to Curmi of the lump sum of $1,950,000, without interest, on or
before 30 days following the execution of this Letter Agreement in full
satisfaction of the Award. In the event that Incentra makes this payment
within the 30-day time frame, Curmi shall permit Rothgerber Johnson &
Lyons LLP to immediately upon payment, transfer all Curmi Stock to
Incentra pursuant to the terms of Paragraph 4 below.
3. STANDSTILL. For 30 days from the date of execution of this Letter
Agreement and the two payments provided for in Paragraph 1, Curmi shall:
(a) keep the Award confidential; (b) not disclose the Award or its
contents to any third parties; (c) not make any attempt to convert the
Award to a judgment; and (d) shall not file any motion in the Lawsuit or
in any other court or agency to confirm the Award, collect on the Award
or otherwise convert it to an enforceable judgment. Nothing in this
Paragraph shall prohibit Curmi from filing with the Arbtrator during
this 30 day period a stipulated motion to add his attorneys' fees and
costs to the Award as referenced in Paragraph 1. In the event that
neither the payment provided in paragraph 2 nor a subsequent written
agreement between the parties occurs, after 30 days from the date of
this Agreement Curmi may pursue all of his rights and remedies under the
Award, including but not limited to, immediately filing a motion to
convert the Award to judgment and pursuing any and all collection
remedies, and Incentra hereby waives any stay of execution on the
judgment provided for under applicable law, including but not limited to
Rule 62(a)of the Colorado Rules of Civil Procedure.
4. CURMI STOCK. Immediately upon execution of this Letter Agreement and
receipt of the two payments provided for in Paragraph 1, Curmi shall
place the original stock certificates representing the Curmi Stock as
well as executed appropriate stock transfer documents in trust with
Rothgerber Johnson & Lyons LLP. In the event that Incentra does not
consummate payment pursuant to paragraph 2 above, then Rothgerber
Johnson & Lyons LLP shall immediately return the Curmi Stock to Curmi.
In the event that Incentra does consummate payment pursuant to paragraph
2 above, then Rothgerber Johnson & Lyons LLP shall transfer the Curmi
Stock and the executed appropriate stock transfer documents to Incentra.
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5. RELEASE. Upon full payment as set forth in paragraph 2 above Curmi will
provide Incentra with the fully executed Release, a copy of which is
attached hereto as Exhibit A.
6. DISMISSAL OF LAWSUIT. Upon full payment as set forth in paragraph 2
above, the Parties shall file with the Denver County District Court the
Stipulation for Dismissal with Prejudice of the Lawsuit attached hereto
as Exhibit B.
7. CONFIDENTIALITY. Curmi agrees that for 30 days the terms of this Letter
Agreement and the Award and its contents shall remain confidential and
shall not be disclosed, directly or indirectly, to any third party for
any reason at any time. Upon full payment as set forth in paragraph 2
above Curmi will provide Incentra with the fully executed
Confidentiality and Non-Disparagement Agreement, a copy of which is
attached hereto as Exhibit C.
8. PUBLIC STATEMENTS AND DISCLOSURES. Incentra may make public statements
regarding this Letter Agreement, including but not limited to, public
securities filings, press releases, or other disclosures to attorneys,
accountants, auditors, financial institutions, directors, officers,
employees, insurers, or as otherwise required by law. Curmi has not
reviewed or participated in any way in drafting those public statements
and disclosures and is not responsible for their content.
9. AUTHORITY AND NONASSIGNMENT. The Parties warrant and represent that each
signatory hereto has authority to enter into this Agreement and to bind
their respective entity, and that no Party has transferred, sold,
assigned, or hypothecated any part of their respective claims, actions,
demands and/or causes of action, if any. The Parties warrant and agree
that each will sign or execute any document that is necessary to
complete the obligations as set forth within this Letter Agreement.
10. CONSULTING AGREEMENT. Nothing in this Letter Agreement shall affect,
discharge, or relieve Incentra of its obligation to continue to make
payments to Curmi in accordance with the terms of the Consulting
Agreement. The parties agree that Incentra will continue to make
payments to Curmi under the Consulting Agreement regardless of this
Letter Agreement or any payments made pursuant to Paragraphs 1 or 2.
11. NONRELIANCE. Each Party understands and agrees that it assumes all risk
that the facts or law may be, or become, different than the facts or law
as believed by the Party at the time it executes this Agreement. The
Parties acknowledge that their adversary relationship precludes any
affirmative obligation of disclosure, and expressly disclaim all
reliance upon information supplied or concealed by any adverse Party or
its counsel in connection with the negotiation and/or execution of this
Agreement.
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12. ADDITIONAL WARRANTY AND ACKNOWLEDGMENT. The Parties warrant and
represent that they have been offered no promise or inducement except as
expressly provided in this Standstill Agreement, and that this Agreement
is not in violation of or in conflict with any other Agreement of any of
the Parties.
13. SURVIVAL OF COVENANTS AND WARRANTIES. All covenants and warranties
contained in this Agreement are contractual and shall survive the
closing of this Agreement.
14. MISCELLANEOUS.
A. SUCCESSORS AND ASSIGNS. This Agreement shall be binding in all
respects upon, and shall inure to the benefit of, the Parties'
successors and assigns.
B. INTEGRATION. This Agreement constitutes the entire agreement of the
Parties and a complete merger of prior negotiations and agreements
regarding enforcement and collection of the Award.
C. DISPUTE. In the event of any action relating to or arising out of
this Standstill Agreement, the Party substantially prevailing shall
recover from the other Party all attorneys' fees, costs and litigation
expenses.
D. COUNTERPARTS AND TELECOPIES. This Agreement may be executed in
counterparts, and by copies transmitted by telecopy, all of which shall
be given the same force and effect as the original.
INCENTRA SOLUTIONS, INC.
By: /s/ Matthew G. Richman
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Date: JULY 28, 2006
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Dated: July 27, 2006
/s/ Alfred Curmi
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ALFRED 'TED' CURMI
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