EXHIBIT 10.1
AGREEMENT AND MUTUAL RELEASE BY AND BETWEEN
U.C. LASER LTD. AND SEAENA, INC. DATED AS OF
JANUARY 8, 2007
AGREEMENT AND MUTUAL RELEASE
This Agreement is made as of January 8, 2007, by and between SEAENA,
INC., a Nevada corporation ("SEAENA") and U.C. LASER, LTD., a corporation
organized under the laws of the State of Israel ("UC" and, together with Seaena,
the "PARTIES").
FACTUAL BACKGROUND
A. UC and Seaena (formerly known as Crystalix Group International,
Inc.) entered into a certain Asset Purchase Agreement dated December 29, 2005
and amended as of February 1, 2006 and March 9, 2006 (the "ASSET PURCHASE
AGREEMENT").
B. Pursuant to the Asset Purchase Agreement, Seaena issued 2,276,795
shares of its Class B Preferred Stock to UC (the "SEAENA CLASS B STOCK"),
constituting 45% of the economic and voting rights represented by issued and
outstanding shares of Seaena. The Seaena Class B Stock is evidenced by
Certificates PB-1 and PB-2 (the "CERTIFICATES"), copies of which are attached as
Exhibits A and B, respectively, to this Agreement. Certificate No. PB-1 is in
the possession of UC. Certificate No. PB-2 is held in escrow by Nevada Title
Company, a Nevada corporation ("ESCROW HOLDER"), pursuant to a certain Escrow
Agreement by and among Seaena, UC, and Escrow Holder dated as of March 31, 2006.
C. Pursuant to the Asset Purchase Agreement, Crystal Impressions
(Israel) Ltd., a corporation organized under the laws of Israel ("CI"), which is
a wholly owned subsidiary of Seaena, and Laser Glass, Ltd., a corporation
organized under the laws of the State of Israel ("LG") entered into a certain
Agreement dated February 1, 2006, whereby, among other things, LG granted a
license of certain patent rights to CI (the "PATENT LICENSE").
D. Pursuant to Section 1.1(e) of the Asset Purchase Agreement, as added
by Amendment to Asset Purchase Agreement dated February 1, 2006, UC agreed to
transfer to CI all of the shares of corporate stock of LG held by UC,
constituting majority ownership of LG (the "LG SHARES").
E. Certain issues and disputes have arisen concerning the assets
transferred pursuant to the Asset Purchase Agreement.
F. The Parties desire to agree as set forth below.
AGREEMENT
The Parties agree as follows:
1. SALE OF STOCK. UC will sell the Seaena Class B Stock to Seaena for
$425,000 (the "PURCHASE PRICE"), and deliver the Certificates to Seaena for
cancellation.
2. PROMISSORY NOTE AND PLEDGE AGREEMENT. A portion of the Purchase
Price in the amount of $400,000 will be in the form of a Promissory Note in the
form of Exhibit C to this Agreement (the "NOTE"), payable to UC, without
interest, maturing six months after the date of Closing (as defined below). The
Note will be secured by a Pledge Agreement (the "PLEDGE
1
AGREEMENT") in the form of Exhibit D to this Agreement, granting to UC a first
priority security interest in the Seaena Class B Stock, which will be held by
Seaena as treasury stock until the Note has been paid in full. Upon sale by
Seaena to any third party of the Seaena Class B Stock, or any other equity
interest in Seaena exceeding twenty-five percent (25%) of the voting rights of
equity holders in Seaena, in one transaction or a series of transactions, the
Note will be paid in full.
3. LG STOCK. UC will cause the LG Stock to be transferred to Seaena as
required under the Asset Purchase Agreement.
4. PATENT LICENSE. Notwithstanding any provisions of this Agreement,
the Patent License will remain in full force and effect.
5. WARRANT. In consideration for the payment of $25,000 by UC to
Seaena, Seaena will issue to UC a warrant to purchase 600,000 shares of Seaena
common stock in the form attached as Exhibit E hereto.
6. CLOSING. The Closing will occur on or before January 15, 2007,
through escrow with Nevada Title Company, 2500 N. Buffalo Drive, Suite 150, Las
Vegas, Nevada 89128. Each party will execute joint escrow instructions
consistent with this Agreement.
(a) At the Closing, Seaena will deliver to UC:
(1) the cash portion of the Purchase Price in the amount
of $25,000;
(2) the Promissory Note;
(3) the Pledge Agreement;
(4) a new stock certificate evidencing the Seaena Class B
Stock, issued to Seaena as stockholder, together with
a stock power executed in blank; and
(5) the Warrant.
(b) At the Closing, UC will deliver to Seaena:
(1) the Certificates evidencing the Seaena Class B Stock,
which will be cancelled and reissued to Seaena
subject to UC's security interest under the Pledge
Agreement;
(2) the LG Stock, together with such documents or
instruments of transfer as may reasonably be required
by Seaena; and
(3) the payment of $25,000 in consideration for issuance
of the Warrant.
2
7. RELEASE OF CLAIMS. Effective upon Closing, as a material part of the
consideration for UC entering into this Amendment, Seaena agrees as follows (the
"SEAENA RELEASE PROVISION"):
(a) Seaena hereby releases and forever discharges UC and UC's
predecessors, successors, assigns, officers, managers, directors, shareholders,
employees, agents, attorneys, representatives, parent corporations,
subsidiaries, and affiliates (hereinafter all of the above collectively referred
to as "UC GROUP") jointly and severally from any and all claims, counterclaims,
demands, damages, debts, agreements, covenants, suits, contracts, obligations,
liabilities, accounts, offsets, rights, actions, and causes of action of any
nature whatsoever, including, without limitation, all claims, demands, and
causes of action for contribution and indemnity, whether arising at law or in
equity, whether presently possessed or possessed in the future, whether known or
unknown, whether liability be direct or indirect, liquidated or unliquidated,
whether presently accrued or to accrue hereafter, whether absolute or
contingent, foreseen or unforeseen, and whether or not heretofore asserted,
which Seaena may have or claim to have against any of UC Group; provided,
however, that UC shall not be released hereby from any obligation under this
Agreement or the documents and agreements to be delivered under this Agreement.
(b) Seaena agrees not to sue any of UC Group or in any way assist
any other person or entity in suing UC Group with respect to any claim released
herein. The provisions of this Seaena Release Provision may be pleaded as a full
and complete defense to, and may be used as the basis for an injunction against,
any action, suit, or other proceeding, which may be instituted, prosecuted, or
attempted in breach of the release contained herein.
(c) Seaena acknowledges, warrants, and represents to UC Group
that:
(i) Seaena has read and understands the effect of this
Seaena Release Provision. Seaena has had the assistance of independent
counsel of its own choice, or has had the opportunity to retain such
independent counsel, in reviewing, discussing, and considering all the
terms of this Seaena Release Provision; and if counsel was retained,
counsel for Seaena has read and considered this Seaena Release
Provision and advised Seaena to execute the same. Before execution of
this Amendment, Seaena has had adequate opportunity to make whatever
investigation or inquiry it may deem necessary or desirable in
connection with the subject matter of this Seaena Release Provision.
(ii) Seaena is not acting in reliance on any
representation, understanding, or agreement not expressly set forth
herein. Seaena acknowledges that UC Group has not made any
representation with respect to this Seaena Release Provision except as
expressly set forth herein.
(iii) Seaena has executed this Agreement and this Seaena
Release Provision thereof as its free and voluntary act, without any
duress, coercion, or undue influence exerted by or on behalf of any
person.
3
(iv) Seaena is the sole owner of the claims released by
this Seaena Release Provision, and Seaena has not heretofore conveyed
or assigned any interest in any such claims to any other person or
entity.
(d) Seaena understands that this Seaena Release Provision was a
material consideration in the agreement of UC to enter into this Amendment.
8. RELEASE OF CLAIMS. Effective upon Closing, as a material part of
the consideration for Seaena entering into this Amendment, UC agrees as follows
(the "UC RELEASE PROVISION"):
(a) UC hereby releases and forever discharges Seaena and Seaena's
predecessors, successors, assigns, officers, managers, directors, shareholders,
employees, agents, attorneys, representatives, parent corporations,
subsidiaries, and affiliates (hereinafter all of the above collectively referred
to as "SEAENA GROUP") jointly and severally from any and all claims,
counterclaims, demands, damages, debts, agreements, covenants, suits, contracts,
obligations, liabilities, accounts, offsets, rights, actions, and causes of
action of any nature whatsoever, including, without limitation, all claims,
demands, and causes of action for contribution and indemnity, whether arising at
law or in equity, whether presently possessed or possessed in the future,
whether known or unknown, whether liability be direct or indirect, liquidated or
unliquidated, whether presently accrued or to accrue hereafter, whether absolute
or contingent, foreseen or unforeseen, and whether or not heretofore asserted,
which UC may have or claim to have against any of Seaena Group; provided,
however, that Seaena shall not be released hereby from any obligation under this
Agreement or the documents and agreements to be delivered under this Agreement.
(b) UC agrees not to sue any of Seaena Group or in any way assist
any other person or entity in suing Seaena Group with respect to any claim
released herein. The provisions of this UC Release Provision may be pleaded as a
full and complete defense to, and may be used as the basis for an injunction
against, any action, suit, or other proceeding, which may be instituted,
prosecuted, or attempted in breach of the release contained herein.
(c) UC acknowledges, warrants, and represents to Seaena Group
that:
(i) UC has read and understands the effect of this UC
Release Provision. UC has had the assistance of independent counsel of
its own choice, or has had the opportunity to retain such independent
counsel, in reviewing, discussing, and considering all the terms of
this UC Release Provision; and if counsel was retained, counsel for UC
has read and considered this UC Release Provision and advised UC to
execute the same. Before execution of this Amendment, UC has had
adequate opportunity to make whatever investigation or inquiry it may
deem necessary or desirable in connection with the subject matter of
this UC Release Provision.
(ii) UC is not acting in reliance on any representation,
understanding, or agreement not expressly set forth herein. UC
acknowledges that Seaena Group has not made any representation with
respect to this UC Release Provision except as expressly set forth
herein.
4
(iii) UC has executed this Agreement and this UC Release
Provision thereof as its free and voluntary act, without any duress,
coercion, or undue influence exerted by or on behalf of any person.
(iv) UC is the sole owner of the claims released by this UC
Release Provision, and UC has not heretofore conveyed or assigned any
interest in any such claims to any other person or entity.
(d) UC understands that this UC Release Provision was a material
consideration in the agreement of Seaena to enter into this Amendment.
9. NOTICES.
All notices, requests and other communications hereunder must be in
writing and will be deemed to have been duly given only if delivered personally
against written receipt or by facsimile transmission against facsimile
confirmation or sent by internationally recognized overnight courier prepaid, to
the parties at the following addresses or facsimile numbers:
If to Seaena to:
Seaena Group International, Inc.
1181 Grier Drive, Suite B
Las Vegas, Nevada 89119
USA
Facsimile No.: (702) 740-4611
Attn: Doug Lee, President
with a copy (which shall not constitute notice) to:
Stephen B. Yoken
Snell & Wilmer L.L.P.
3800 Howard Hughes Parkway, Suite 1000
Las Vegas, Nevada 89169
USA
Facsimile No.: (702) 784-5252
If to the Company to:
U.C. Laser Ltd.
900 Third Avenue, 33rd Floor
New York, NY 10022
USA
Attn: Marshall Butler
All such notices, requests and other communications will (a) if delivered
personally to the address as provided in this Section 9, be deemed given upon
delivery, (b) if delivered by facsimile transmission to the facsimile number as
provided for in this Section 9.1, be deemed given upon facsimile confirmation
during ordinary business hours (or on the next Business Day
5
if received outside of ordinary business hours), and (c) if delivered by
overnight courier to the address as provided in this Section 9, be deemed given
on the earlier of the first Business Day following the date sent by such
overnight courier or upon receipt (in each case regardless of whether such
notice, request or other communication is received by any other Person to whom a
copy of such notice is to be delivered pursuant to this Section 9.1). Any party
from time to time may change its address, facsimile number or other information
for the purpose of notices to that party by giving notice specifying such change
to the other party hereto.
10. ENTIRE AGREEMENT.
This Agreement and the Exhibits hereto constitute the entire agreement
among the parties with respect to the subject matter hereof and supersede all
prior agreements and understandings, both written and oral, among the parties
with respect to the subject matter hereof.
11. FURTHER ASSURANCES; POST-CLOSING COOPERATION.
At any time or from time to time after the Closing, the parties shall
execute and deliver to the other party such other documents and instruments,
provide such materials and information and take such other actions as the other
party may reasonably request to consummate the transaction contemplated by this
Agreement and otherwise to cause the other party to fulfill its obligations
under this Agreement and the transaction contemplated hereby. Each party agrees
to use commercially reasonable efforts to cause the conditions to its
obligations to consummate the transaction to be satisfied.
12. WAIVER.
Any term or condition of this Agreement may be waived at any time by
the party that is entitled to the benefit thereof, but no such waiver shall be
effective unless set forth in a written instrument duly executed by or on behalf
of the party waiving such term or condition. No waiver by any party of any term
or condition of this Agreement, in any one or more instances, shall be deemed to
be or construed as a waiver of the same or any other term or condition of this
Agreement on any future occasion. All remedies, either under this Agreement or
by Law or otherwise afforded, will be cumulative and not alternative.
13. THIRD PARTY BENEFICIARIES.
The terms and provisions of this Agreement are intended solely for the
benefit of each party hereto and their respective successors or permitted
assigns, and it is not the intention of the parties to confer third-party
beneficiary rights, and this Agreement does not confer any such rights, upon any
other person.
14. NO ASSIGNMENT; BINDING EFFECT.
Neither this Agreement nor any right, interest or obligation hereunder
may be assigned (by operation of law or otherwise) by any party without the
prior written consent of the other party and any attempt to do so will be void.
Subject to the preceding sentence, this Agreement is binding upon, inures to the
benefit of and is enforceable by the parties hereto and their respective
successors and assigns.
6
15. HEADINGS.
The headings and table of contents used in this Agreement have been inserted for
convenience of reference only and do not define or limit the provisions hereof.
16. INVALID PROVISIONS.
If any provision of this Agreement is held to be illegal, invalid or
unenforceable under any present or future Law, and if the rights or obligations
of any party hereto under this Agreement will not be materially and adversely
affected thereby, (a) such provision will be fully severable, (b) this Agreement
will be construed and enforced as if such illegal, invalid or unenforceable
provision had never comprised a part hereof, (c) the remaining provisions of
this Agreement will remain in full force and effect and will not be affected by
the illegal, invalid or unenforceable provision or by its severance herefrom and
(d) in lieu of such illegal, invalid or unenforceable provision, there will be
added automatically as a part of this Agreement a legal, valid and enforceable
provision as similar in terms to such illegal, invalid or unenforceable
provision as may be possible.
17. GOVERNING LAW.
This Agreement and the Closing documents shall be governed by and
construed in accordance with the laws of the State of Nevada, without giving
effect to any choice of law or conflict of law provision or rule (whether of the
State of Nevada or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of Nevada. The state and
federal courts located in Las Vegas, Nevada, shall have exclusive jurisdiction
to adjudicate any dispute arising out of this Agreement. In any litigation
arising out of this Agreement the prevailing party shall recover its reasonable
attorney's fees and expenses.
18. CONSTRUCTION.
The parties hereto agree that this Agreement is the product of
negotiations between sophisticated parties and individuals, all of whom were
represented by counsel, and each of whom had an opportunity to participate in
and did participate in, the drafting of each provision hereof. Accordingly,
ambiguities in this Agreement, if any, shall not be construed strictly or in
favor of or against any party hereto but rather shall be given a fair and
reasonable construction.
19. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which will be deemed an original, but all of which together will constitute one
and the same instrument.
Seaena, Inc., U.C. Laser, Ltd., a corporation organized
a Nevada corporation under the laws of the State of Israel
By: /S/ DOUG LEE By: /s/ MARSHALL BUTLER
------------------------------- --------------------------------------
Doug Lee, President Marshall Butler, Chairman and CEO
Date: January 8, 2007 Date: January 8, 2007
7