ex_10-45.htm


    
      

      

    

    
      Exhibit
10.45

       

       

      SETTLEMENT
AGREEMENT AND RELEASE

       

      This
Settlement Agreement and Release (the "Agreement”) is between Location Based
Technologies, Inc. (“LBAS”), on the one hand, and Jens Dalsgaard
(“Dalsgaard”),Redwood Consultants, LLC (“Redwood”), Constellation Capital
Management (“Constellation”), William Gilliam (“Gilliam”), the Gilliam Exempt
Family Trust (“the Trust”), Angela Williams (“Williams”), Richard Pisano
(“Pisano”), Amanda Schmieder (“Schmieder”), Giuliana Dalsgaard (“G. Dalsgaard”),
Matthew Murawski (“Murawski”), and Arron Johnson (“Johnson”) (collectively, the
“Redwood Parties”), on the other hand.

       

      The
Scigliano Group LLC (“Scigliano”), a business consultant for LBAS, and TranShare
Corporation (“TranShare”), the stock transfer agent for LBAS, are also parties
to this Agreement, but solely for the purposes of paragraphs 6-8 and 10
(Scigliano) and 2 and 10 (TranShare), respectively, below.

       

      LBAS and
the Redwood Parties shall collectively be referred to as “the Settling
Parties.”

       

      TERMS
AND CONDITIONS

       

      In
consideration of the covenants, conditions and promises described in this
Agreement, the Settling Parties, Scigliano and TranShare agree as
follows:

       

      1.           Cancellation of the
Warrant. The Redwood Parties represent and warrant that they never
received the warrant for the purchase of 300,000 shares of LBAS common stock
(the “Warrant”), which was granted on or about October 27, 2008 under the
written agreement between LBAS and Redwood entitled Consulting Agreement entered
into on or about October 26, 2008 (“Consulting Agreement”). After the Effective
Date of this Agreement, LBAS is authorized under this Agreement to cancel the
Warrant.

       

      
        
          
          

        

        
          1

          
            

          

        

        
          
          

        

      

       

      2.           Return and Reissuance of
Stock Certificates.

       

      
        	
                 
      

              	
                a.

              	
                Within
      seven business days of the Effective Date, the Redwood Parties shall each
      return, or cause to be returned, to TranShare for cancellation the share
      certificates for LBAS restricted stock (“the Restricted Shares”) as
      follows:

              


      

       

      
        	
                Holder

              	
                # of
      Shares

              
	
                Redwood
      Consultants LLC

              	
                325,000

              
	
                Jens
      Dalsgaard

              	
                75,000

              
	
                Giuliana
      Dalsgaard

              	
                75,000

              
	
                Angela
      Williams

              	
                150,000

              
	
                Constellation
      Capital Management

              	
                225,000

              
	
                Constellation
      Capital Management

              	
                250,000

              
	
                Gilliam
      Exempt Family Trust

              	
                127,500

              
	
                Richard
      Pisano

              	
                127,500

              
	
                Amanda
      Schmieder

              	
                63,750

              
	
                Matthew
      Murawski

              	
                63,750

              
	
                Arron
      Johnson

              	
                5,000

              


      

      


      
        	
                 
      

              	
                b.

              	
                The
      returned certificates shall be properly endorsed in accordance with
      customary requirements of
TranShare.

              


      

       

      
        	
                 
      

              	
                c.

              	
                Upon
      receipt of the Restricted Shares, TranShare shall cancel each of the
      certificates.

              


      

       

      
        	
                 
      

              	
                d.

              	
                When
      TranShare has received, in compliance with subparagraphs a and b, and
      cancelled, the Restricted Shares (for all 1,487,500 shares listed above),
      TranShare shall within five (5) business days reissue and deliver to the
      recipients listed below a total of 487,500 shares of LBAS common stock
      (“Reissued Shares”) in the aggregate amounts set forth in the following
      schedule:

              


      

       

      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

         

      

      
        	
                Holder

              	
                # of
      Shares

              
	
                Redwood
      Consultants LLC

              	
                10,000

              
	
                Jens
      Dalsgaard

              	
                10,000

              
	
                Giuliana
      Dalsgaard

              	
                10,000

              
	
                Angela
      Williams

              	
                50,000

              
	
                Constellation
      Capital Management

              	
                252,500

              
	
                Gilliam
      Exempt Family Trust

              	
                50,000

              
	
                Richard
      Pisano

              	
                50,000

              
	
                Amanda
      Schmieder

              	
                25,000

              
	
                Matthew
      Murawski

              	
                25,000

              
	
                Arron
      Johnson

              	
                5,000

              


      

       

      
        	
                 
      

              	
                e.

              	
                The
      issuance of the Reissued Shares pursuant to sub-paragraph 2(d) shall not
      be affected in any way whatsoever by the shares held by Kimchi Moyer
      Enterprises (2,500 shares), Sorena AB (2,500 shares), and/or Jonathan
      Groves (7,500 shares).

              


      

       

      
        	
                 
      

              	
                f.

              	
                TranShare
      agrees that, within 5 business days of a request from Kimchi Moyer
      Enterprises, Sorena AB, and/or Jonathan Groves, it will remove any and all
      restrictive legend(s) from the shares held by Kimchi Moyer Enterprises
      (2,500 shares), Sorena AB (2,500 shares), and Jonathan Groves (7,500
      shares), respectively.

              


      

       

      
        	
                 
      

              	
                g.

              	
                After
      the execution of this Agreement by all Parties, Constellation shall open a
      brokerage account with Grant Bettengen, for the purpose of sales,
      liquidation and distribution of proceeds from the shares issued to it
      pursuant to subparagraph 2(c). Upon the opening of the brokerage account,
      Constellation shall cause Grant Bettengen to execute and deliver a letter
      to LBAS providing electronic access to the accounts for monitoring,
      acknowledging the selling limitations that are contained in Paragraph 3
      below, applicable to such account and agreeing not to short or otherwise
      trade in the stock of LBAS through such shares on deposit in such account
      or in any other way seek to circumvent the provisions of Paragraph 3 of
      this Agreement. Upon the opening of such account, LBAS shall cause
      TranShare to transfer the applicable shares to the applicable account.
      Prior to any sales through the account, Constellation shall deliver a copy
      of this Agreement to Grant Bettengen. Any and all sales of the shares
      issued to Constellation pursuant to subparagraph 2(d) shall only be made
      in accordance with the Paragraph 3 of this Agreement. To the extent Grant
      Bettengen is unable or unwilling to perform the functions contemplated by
      this subparagraph, LBAS and the Redwood Parties shall in good faith agree
      upon an alternative broker to perform the functions of Grant Bettengen
      described in this subparagraph.

              


      

       

      
        
          
          

        

        
          3

          
            

          

        

        
          
          

        

      

       

      3.           Limitations on Sale of the
Reissued Shares. From the Effective Date until June 1, 2010,
Constellation irrevocably agrees it will not offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase or otherwise transfer or
dispose of, directly or indirectly, or announce the offering of, (collectively
referred to as “Dispose”) any of the
shares issued to Constellation pursuant to subparagraph 2(d) (including any
securities convertible into, or exchangeable for, or representing the rights to
receive, Constellation’s Reissued
Shares), other than in accordance with each of the following clauses of this
Paragraph
3:

       

      (a) In
any calendar month, beginning June 1, 2009, Constellation may not Dispose of in
excess of three thousand (3,000) of its Reissued Shares per trading day. All
remaining Redwood Parties who are issued shares pursuant to subparagraph 2(d)
shall not be subject to any selling restrictions, except as the law otherwise
requires;

       

      (b) Each
of the Redwood Parties warrants that he, she or it will comply with all
applicable laws, including SEC rules and regulations, whenever selling any of
the Reissued Shares;

       

      (c)
Constellation shall disclose the terms of this Paragraph 3 to any broker(s) it
uses to facilitate any sales of the shares issued to Constellation pursuant to
subparagraph 2(d);

       

      (d)
Notwithstanding the restrictions contained in this Section 3,
Constellation may, from time to time, transfer all or any of the shares issued
to Constellation pursuant to subparagraph 2(d) in connection with an Acquisition
Transaction. For purposes of this Agreement, “Acquisition
Transaction” means where (A) any person or “group” (as such term is
defined in Section 13(d) of the Exchange Act) has commenced a tender or exchange
offer seeking to acquire control of the Company, but then only a transfer to
such person or group pursuant to such offer or any competing offer, (B) any
person or group has acquired securities of the Company representing more than
50% of the voting power of all of the outstanding securities of the Company (a
“Change of
Control”), or (C) any transaction as to which the Company has entered
into a definitive agreement or publicly announced its support of which, if
effected, would constitute a Change of Control, but then only a transfer
pursuant to such transaction.

       

      (e) LBAS
(including, but not limited to, its employees, agents and/or assigns)
understands and agrees that if Constellation Disposes its Reissued Shares in
accordance with each of the foregoing clauses of this Paragraph 3, LBAS cannot
and will not take any actions with respect to the transfer agent and any other
entity or individual that has or could have the effect of delaying, stopping or
interfering in any way with the rights of Constellation to dispose of the shares
issued to Constellation pursuant to subparagraph 2(d) of this Agreement. The
Parties further expressly agree that the sole and exclusive remedy available to
either party with respect to an alleged breach of this Paragraph 3 shall be to
seek relief (including, but not limited to, injunctive and/or provisional
relief) through arbitration in accordance with Paragraph 17 of this Agreement.
The Parties expressly acknowledge and agree that, not withstanding federal or
California statutory and/or common law, the sole venue for injunctive or other
relief under this Agreement is arbitration before the arbitration in accordance
with Paragraph 17 of this Agreement.

       

      
        
          
          

        

        
          4

          
            

          

        

        
          
          

        

      

       

      4.           Dismissal of the
Action. LBAS shall file a dismissal of the action pending in the United
States District Court for the Northern District of California, Case No. CV-
09-1618-WHA (“the Action”) with prejudice as soon as is practicable after LBAS
has received executed copies of signature pages of this Agreement from each of
the signatories to this Agreement. In no event shall the dismissal be filed more
than three business days after notice that this Agreement has been fully
executed.

       

      5.           Termination of the
Agreements. As of the Effective Date, the written agreement between LBAS
and Dalsgaard entitled Contract for Professional Consulting Services entered
into on or about October 15, 2008 (the “Dalsgaard Agreement”), the Consulting
Agreement, and the written agreement between LBAS and Constellation entitled
Financial Advisory Services Agreement entered into on or about November 7, 2008
(the “FASA”) are terminated and each of the Settling Parties is released from
any and all obligations contained in the terminated Dalsgaard Agreement,
Consulting Agreement, and/or FASA, including without limitation, any obligations
of LBAS to provide the Redwood Parties additional shares of LBAS stock and to
honor the exercise of any warrants to purchase common stock that LBAS granted
Redwood.

       

      6.           Release. In
consideration for the promises set forth above, and for other good and valuable
consideration:

       

      a. As of
the Effective Date, LBAS hereby mutually releases and forever discharges each of
the Redwood Parties, and their respective heirs, executors, administrators,
trustors, trustees, beneficiaries, predecessors, successors, assigns, partners,
partnerships, parents, subsidiaries, affiliated and related entities, officers,
directors, shareholders, principals, agents, employees, servants, attorneys,
representatives, and all persons, firms, associations and/or corporations
connected with them, including, without limitation, their insurers, sureties,
consultants and experts, from all claims, demands, liens, agreements, contracts,
covenants, actions, suits, causes of action, obligations, controversies, debts,
costs, expenses, attorneys’ fees, damages, judgments, orders and liabilities, of
whatever kind or nature, whether in law, equity or otherwise, and whether now
known or unknown, suspected or unsuspected, and whether or not concealed or
hidden, which LBAS now owns or holds, or has at any time heretofore owned or
held, that have arisen prior to the Effective Date, including without
limitation, any that (a) are in anyway related to, arise from or based on the
Dalsgaard, Consulting and FASA Agreements; and (b) are or could have been
asserted in the Action; provided, however, that with respect to any claim
brought against LBAS by a third party, LBAS, by this release, does not release
and expressly preserves any claims for indemnity.

       

       b. As of the Effective Date,
the Redwood Parties and each of them hereby mutually release and forever
discharge LBAS, and its predecessors, successors, assigns, partners,
partnerships, parents, subsidiaries, affiliated and related entities, officers,
directors, shareholders, principals, agents, employees, servants,
representatives and all persons, firms, associations and/or corporations
connected with them, and including also, without limitation, their insurers,
sureties, consultants and experts, from all claims, demands, liens, agreements,
contracts, covenants, actions, suits, causes of action, obligations,
controversies, debts, costs, expenses, attorneys’ fees, damages, judgments,
orders and liabilities, of whatever kind or nature, whether in law, equity or
otherwise, and whether now known or unknown, suspected or unsuspected, and
whether or not concealed or hidden, which he or it now owns or holds, or has at
any time owned or held, that have arisen prior to the Effective Date, including
without limitation, any that (a) are in anyway related to, arise from or based
on the Dalsgaard, Consulting and FASA Agreements; and (b) are or could have been
asserted in the Action; provided, however, that with respect to any claim
brought against the Redwood Parties by a third party, the Redwood Parties, by
this release, do not release and expressly preserve any claims for
indemnity.

       

      
        
          
          

        

        
          5

          
            

          

        

        
          
          

        

      

       

      7.           Waiver of California Civil
Code Section 1542. The Settling Parties waive all rights under Section
1542 of the Civil Code of the State of California, which provides as
follows:

      A general
release does not extend to claims which the creditor does not know or suspect to
exist in his or her favor at the time of executing the  release, which
if known by him or her must have materially affected his or her settlement with
the debtor.

      


      8.           Waiver of
Compensation. Scigliano waives the right to receive any compensation,
including stock, from any of the Redwood Parties for introducing the Redwood
Parties to LBAS.

       

      9.           Confidentiality.
LBAS, on the one hand, and the Redwood Parties, on the other, each agree to
maintain in the strictest confidence any confidential or proprietary information
each provided the other during the course of their relationship under the
Dalsgaard, Consulting Agreement and the FASA Agreements.

       

      10.         Representations and
Warranties regarding Authority to Settle. Each of The Settling Parties,
Scigliano and TranShare represents and warrants that he, she or it has the
authority to execute this Agreement and to release or waive the claims described
in this Agreement.

       

      11.         Representations and
Warranties regarding Stock Transfer. Each of the

      Redwood
Parties represents and warrants that they have not transferred to anyone,
including agents and employees, any LBAS common stock that they are agreeing to
return pursuant to paragraph 2(a) of this Agreement.

       

      12.         Modification or
Waiver. This Agreement may not be changed or modified or any covenant or
provision in this Agreement waived, except by another agreement, in writing,
signed by each party affected by the modification or waiver.

       

      13.         Final Integrated
Agreement. This Agreement constitutes the entire, final and binding
understanding between the Settling Parties; no other statement or
representation, written or oral, express or implied, has been received and
relied upon in the settlement contained in this Agreement; and all prior
discussions, statements and negotiations made or that have occurred prior to the
Effective Date of this Agreement shall be deemed merged into this Agreement and
shall not be used for any other purpose whatsoever.

       

      14.         Understanding of
Agreement. In entering into this Agreement, each of the Settling Parties
has relied upon her or its own judgment, belief, knowledge, and understanding
concerning the settlement and all of the terms of this Agreement. Each of the
Settling Parties either has consulted with counsel, or has had the opportunity
to consult with counsel, regarding the legal effect of the settlement and all of
the terms of this Agreement. Any of the Settling Parties who has not consulted
counsel before signing this Agreement voluntarily has assumed the risk of not
doing so, and agrees that the Agreement or any of its provisions may not be set
aside on that basis.

       

      
        
          
          

        

        
          6

          
            

          

        

        
          
          

        

      

       

      15.         Voluntary Settlement.
Each of the Settling Parties enters into the settlement knowingly and
voluntarily in the total absence of any fraud, mistake, duress, coercion or
undue influence and after careful thought and reflection upon the terms of the
settlement. Accordingly, by signing this Agreement, each of the Settling Parties
signifies his, her or its full understanding, agreement and
acceptance.

       

      16.         Investigation of
Facts. Each of the Settling Parties has investigated the facts pertaining
to the settlement contained in this Agreement and all other matters deemed
necessary by him, her or it in deciding to sign this Agreement.

       

      17.         Certain Remedies and
Arbitration. The Settling Parties agree that they will not have an
adequate remedy at law to remedy the failure of the other to comply with this
Agreement and as a result agree that the Settling Parties shall be entitled to
equitable relief, including a temporary restraining order and preliminary and
permanent injunctions, to enforce this Agreement. The Settling Parties further
agree that any controversy or claim arising out of or relating to this Agreement
or the alleged breach thereof, including any claim for equitable relief and/or
interim measures, shall be settled by binding arbitration before the American
Arbitration Association (“AAA”) in California in accordance with the then
applicable rules of the AAA governing commercial
disputes, and judgment on the award rendered by the arbitrator(s) shall be
binding on the parties and may be entered in any court having jurisdiction. The
provisions of Title 9 of Part 3 of the California Code of Civil Procedure,
including section 1283.05, and successor statutes, permitting expanded discovery
proceedings shall be applicable to all disputes that are subject to arbitration
under this paragraph.

       

      18.         Choice of Law. This
Agreement shall be construed and enforced in accordance with the laws of the
State of California.


      


      19.         Paragraph Headings.
The paragraph headings in this Agreement are for convenience only, are not
considered a part of the Agreement and shall not be used in the construction and
interpretation of the Agreement.

       

      20.         Successors and
Assigns. This Agreement shall be binding upon and shall inure to the
benefit of the respective spouses, children, family members, partners,
offspring, heirs, executors, administrators, successors and assigns of the
Settling Parties.

       

      21.         Attorneys’ Fees for
Prevailing Party. In any action, litigation, or other proceeding between
LBAS, on the one hand, and any of the Redwood Parties, on the other, at law or
equity with respect to, pertaining to, or arising from this Agreement, whether
for enforcement or for damages by reason of any alleged breach or for a
declaration or rights and obligations or otherwise, and including any appeal,
contempt proceeding, bankruptcy proceeding and any action, litigation, or other
proceeding to enforce and/or collect any judgment or other relief granted,
whether or not such action or proceeding is prosecuted to final judicial
determination, the unsuccessful party to the action, litigation, or proceeding
shall pay to the prevailing party, in addition to any other relief that may be
granted, all costs and expenses of the action, litigation, or other proceeding,
including without limitation, the prevailing party’s attorneys’ fees and
expenses. “Attorneys’ fees and expenses” includes, without limitation, paralegal
or legal assistant fees and expenses, attorneys’ consultants’ fees and expenses,
expert witnesses’ fees and expenses, and all other expenses that the prevailing
party incurs in anticipation of and/or during the course of the action,
litigation, or other proceeding, whether or not otherwise recoverable as
“attorneys’ fees” or as “costs” under California law, and may be sought
and awarded in accordance with California procedure as pertaining to an award of
contractual attorneys’ fees.

       

      
        
          
          

        

        
          7

          
            

          

        

        
          
          

        

      

       

      22.         Counterpart
Originals. This Agreement may be executed in counterparts without any
requirement that each of the Settling Parties, TranShare and Scigliano execute a
single document. The executed counterparts shall be deemed to constitute a
signed original document. Signatures on the executed counterparts may be
transmitted by facsimile, which together shall be deemed to constitute a signed
original document.

       

      23.         Effective Date. This
Agreement shall become effective (“the Effective Date”)
when: (a) each of the Settling Parties, Scigliano and TranShare have signed the
Agreement; and (b) the dismissal of the Action with prejudice is filed in
accordance with Paragraph 4 of this Agreement and is accepted by the
Court.

       

      24.         Cooperation. The
Settling Parties agree to take all actions reasonably necessary to effectuate
the intent and purposes of this Agreement, including but not limited to,
executing additional documents.

       

      WHEREFORE,
the Settling Parties, Scigliano and TranShare have executed
this Agreement as of the Effective Date.

       

      
        
          	
                  /s/ Jens Dalsgaard

                	 	 	
                   

                	 
	
                  
                    Jens
      Dalsgaard, individually

                  

                	 	 	
                   

                	 


        

         

        
          
            	Redwood
      Consultants, LLC	 	 	 	 
	 	 	 	 	 
	
                    /s/ Jens Dalsgaard

                  	 	 	
                     

                  	 
	
                    
                      
                        By:
      Jens Dalsgaard

                        Its:
      President

                      

                    

                  	 	 	
                     

                  	 


          

           

          
            
              	Constellation
      Capital Management	 	 	 	 
	 	 	 	 	 
	
                      /s/
      Jens
      Dalsgaard

                    	 	 	
                       

                    	 
	
                      
                        
                          
                            By:
      Jens Dalsgaard

                            Its:
      President

                          

                        

                      

                    	 	 	
                       

                    	 


            

             

            
              
                	
                        /s/
      Giuliana Dalsgaard

                      	 	 	
                         

                      	 
	
                        
                          Giuliana
      Dalsgaard, individually

                        

                      	 	 	
                         

                      	 
	 	 	 	 	 


              

            

          

        

      

      
        
          
            	
                    /s/
      William
      Gilliam

                  	 	 	
                     

                  	 
	
                    
                      William
      Gilliam, individually

                    

                  	 	 	
                     

                  	 


          

          
             

            
              
                
                

              

              
                8

                
                  

                

              

              
                
                

              

            

             

            
              
                	The
      Gilliam Exempt Family Trust	 	 	 	 
	 	 	 	 	 
	
                        /s/
      Daniel
      Robert Bartley

                      	 	 	
                         

                      	 
	
                        
                          
                            
                              
                                By:
      Daniel Robert Bartley

                                Its:
      Attorney in Fact

                              

                            

                          

                        

                      	 	 	
                         

                      	 


              

              
                 

                
                  
                    	
                            /s/
      Angela
      Williams

                          	 	 	
                             

                          	 
	
                            
                              Angela
      Williams, individually

                            

                          	 	 	
                             

                          	 


                  

                  
                    
                      
                        	 	 	 	 	 
	
                                /s/
      Richard
      Pisano

                              	 	 	
                                 

                              	 
	
                                
                                  
                                    Richard
      Pisano, individually

                                  

                                

                              	 	 	
                                 

                              	 
	 	 	 	 	 


                      

                      
                        
                          
                            	
                                    /s/
      Amanda
      Schmieder

                                  	 	 	
                                     

                                  	 
	
                                    
                                      
                                        Amanda
      Schmieder, individually

                                      

                                    

                                  	 	 	
                                     

                                  	 
	 	 	 	 	 


                          

                        

                      

                    

                  

                

              

            

          

        

      

      
        
          
            
              	
                      /s/
      Matthew
      Murawski

                    	 	 	
                       

                    	 
	
                      
                        
                          Matthew
      Murawski, individually

                        

                      

                    	 	 	
                       

                    	 
	 	 	 	 	 


            

            
              
                
                  	
                          /s/
      Arron
      Johnson

                        	 	 	
                           

                        	 
	
                          
                            
                              
                                Arron
      Johnson, individually

                              

                            

                          

                        	 	 	
                           

                        	 


                

                 

              

            

          

        

      

      
        
          
            	Location
      Based Technologies	 	 	 	 
	 	 	 	 	 
	
                    /s/
      David
      Morse

                  	 	 	
                     

                  	 
	
                    
                      
                        
                          By:
      David Morse

                          Its:
      Co-President

                        

                      

                    

                  	 	 	
                     

                  	 


          

           

          
            
              
                
                  	
                          TranShare
      Corporation (for purposes of Paragraph 2 and 10 only)

                        	 	 
	 	 	 
	
                          /s/
      Mark
      Bogani

                        	 	 	
                           

                        	 
	
                          
                            
                              
                                
                                  By:
      Mark Bogani

                                  Its:
      President

                                

                              

                            

                          

                        	 	 	
                           

                        	 


                

                 

                
                  
                    
                      
                        
                          	
                                  The
      Scigliano Group LLC (for purposes of Paragraphs 6-8 and 10
      only)

                                	 	 
	 	 	 
	
                                  /s/
      William
      Scigliano

                                	 	 	
                                   

                                	 
	
                                  
                                    
                                      
                                        
                                          
                                            By:
      William Scigliano

                                            Its:
      Managing Member

                                          

                                        

                                      

                                    

                                  

                                	 	 	
                                   

                                	 


                        

                      

                       

                       

                      9