Exhibit 10.6
SETTLEMENT AGREEMENT
THIS AGREEMENT, dated as of the 19th day of December, 2005, is by and among
Xxxxxxx X. Xxxxx, an individual resident of Xxxxxx County, Texas ("Xxxxx"), New
Century Energy Corp. (f/k/a Vertica Software, Inc.), a Colorado corporation
("NCEY"), ERC Solutions, Inc., a Delaware corporation ("ERC"), and Xxxxxx X.
XxXxxxxxx, an individual resident of Xxxxxx County, Texas ("XxXxxxxxx"). Xxxxx,
NCEY, ERC and XxXxxxxxx are referred to herein collectively as the "Parties" and
individually as a "Party".
RECITALS
A. NCEY, XxXxxxxxx and Century Resources, Inc., a Delaware corporation,
entered into that certain Agreement and Plan of Reorganization (the
"Reorganization Agreement") dated as of September 30, 2004 under which XxXxxxxxx
exchanged all of the outstanding shares of Century Resources, Inc. for
37,500,000 shares of Common Stock issued by NCEY and Century Resources, Inc.
became a wholly owned subsidiary of NCEY.
B. NCEY and ERC entered into that certain Agreement and Plan of Distribution
(the "Distribution Agreement") dated as of September 30, 2004 under which NCEY
conveyed certain property rights to ERC and ERC assumed certain obligations
relating to such property rights and ERC agreed to use its best efforts to cause
a distribution of ERC common stock to the shareholders of NCEY.
C. NCEY and ERC entered into that certain Agreement (the "ERC Agreement")
dated as of March 3, 2005 under which ERC agreed to assume additional
liabilities of NCEY that existed as of September 30, 2004 which were not assumed
under the Distribution Agreement.
D. A dispute has arisen among the Parties regarding the performance of the
Reorganization Agreement, the Distribution Agreement and the ERC Agreement.
NOW, THEREFORE, to resolve disputed claims and for the purposes of avoiding
the cost and uncertainty of litigation, in consideration of the mutual covenants
set forth herein and other good and valuable consideration, the receipt of which
is acknowledged by each Party, it is agreed as follows:
1. Conversion Agreement. It is a condition to this Agreement that the
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Conversion, Repurchase and Restriction Agreement in the Form attached hereto as
Exhibit "A" be signed and the obligations thereunder to be performed
simultaneously with the execution of such agreement be performed before any of
the covenants, releases or other provisions of this Agreement shall be
effective.
2. Rescission of the ERC Agreement. The ERC Agreement is rescinded in its
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entirety.
3. Distribution Agreement Amendment. The Distribution Agreement is amended
---------------------------------
to delete the requirement that ERC use its best efforts to cause the
registration and distribution of its common stock to the shareholders of NCEY.
Instead, NCEY shall be, insofar as Xxxxx is concerned, free to deal with ERC as
NCEY sees fit.
4. Mutual Release. The Parties do hereby, and each Party individually does
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hereby, RELEASE, ACQUIT and FOREVER DISCHARGE the other Parties, and all their
respective successors and assigns, of and from any and all claims, debts,
demands, actions, causes of actions, suits, contracts, agreements and
liabilities whatsoever, both at law, statutory, in equity, or otherwise, which
any of the Parties may now have, whether known or unknown, against the other
Parties from or relating in any way to the Reorganization Agreement, the
Distribution Agreement, or the ERC Agreement, or the performance or failure to
perform any of them. However, it is expressly agreed that no contract, right,
obligation, covenant, liability or other term of this Agreement is being
released by this paragraph and that the terms of this Agreement shall govern the
relationship from this day forward with all other claims being released.
5. Exception for Going Forward Claims. Notwithstanding anything in this
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Agreement, NCEY shall not have any liability for any claims or liabilities
arising from or relating to any business operated by Xxxxx for the period
October 1, 2004 forward (hereafter the "Going Forward Claims"). Xxxxx hereby
warrants that he is not aware of any Going Forward Claims that exist which are
assertable against NCEY or ERC.
6. Cooperation Concerning Defense of Claims. The Parties acknowledge that
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claims have been made and may still be made against NCEY and may be made against
Xxxxx and/or XxXxxxxxx in the future concerning activities, events or
circumstances that arose prior to the Reorganization. Xxxxx agrees to make
himself available, at reasonable and agreeable times, to provide information and
documents that he may possess and to otherwise assist NCEY, ERC and XxXxxxxxx in
analyzing and, as necessary, defending such claims. This will include Xxxxx
making himself available, if necessary, to discuss matters with NCEY, ERC,
and/or XxXxxxxxx and their respective counsel, to furnish relevant
documentation, to provide deposition and trial testimony, and to execute
accurate affidavits. XxXxxxxxx agrees to make himself available, at reasonable
and agreeable times, to provide information and documents that he may possess
and to otherwise assist NCEY, ERC and Xxxxx in analyzing and, as necessary,
defending such claims. This will include XxXxxxxxx making himself available, if
necessary, to discuss matters with NCEY, ERC, and/or Xxxxx and their respective
counsel, to furnish relevant documentation, to provide deposition and trial
testimony, and to execute accurate affidavits. NCEY and ERC agree to make
available, at reasonable and agreeable times, documents and other information in
its possession that is requested by any Party for the purpose of analyzing and,
as necessary defending such claims.
7. No Conveyance of Claims Released. By their execution hereof, the Parties
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represent, covenant, and warrant that no claims released herein, if any such
claims exist, and no interest in the Reorganization Agreement, the Distribution
Agreement or the ERC Agreement have previously been conveyed, assigned, or in
any manner transferred, in whole or in part, to any third party. The Parties
expressly represent, covenant and warrant that they have full authority to
release any and all of the claims released herein and to amend the
Reorganization Agreement, the Distribution Agreement and the ERC Agreement as
set forth herein.
8. Assignment of ERC Assets. NCEY, as additional consideration for the
---------------------------
agreements contained herein, shall execute the Quitclaim attached hereto as
Exhibit "B." NCEY shall, upon reasonable request, execute such further
documentation as may be necessary to effectively convey the assets described in
Exhibit "B," provided that any such assignment shall be on an "as is, where is"
basis without warranties of any kind. Xxxxx acknowledges that NCEY does not
have any knowledge concerning or possess any of the property referenced in the
Quitclaim and that it shall be solely Xxxxx'x responsibility to locate and/or
deal with the property described.
9. Successors and Assigns. This Agreement and the rights and obligations
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hereunder shall be binding upon and inure to the benefit of the Parties and
their respective heirs, executors, administrators, legal representatives,
successors and assigns.
10. Severability. If, after the execution of this Agreement, any part, term
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or provision of this Agreement is found to be invalid, illegal, unenforceable,
or in conflict with any valid controlling law, such part, term or provision
shall be fully severable. In lieu thereof, the Parties shall add a legal, valid
and enforceable provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible.
11. Captions. The captions used in this Agreement have been inserted only
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for reference purposes. The captions and order of such captions shall not be
deemed to govern, limit, modify, or in any manner affect the scope, meaning,
or intent of any of the provisions and/or terms of this Agreement, nor shall
any captions be given any legal effect.
12. Entire Understanding. This Agreement and the documents referenced
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herein contain the entire understanding between the Parties and supersede any
and all other agreements, understandings, and representations between the
Parties except as otherwise specifically provided.
13. Modification/Amendments. Any modification or amendment of this
-----------------------
Agreement shall be effective only if made in writing and signed by all Parties
hereto.
14. Jurisdiction/Venue. The laws of the State of Texas shall govern the
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execution, effect, application, interpretation, validity, performance, and
enforcement of this Agreement and the rights, duties, and privileges of the
respective Parties hereto. All litigation between the Parties with respect to
this Agreement or the matters described herein shall be conducted in the federal
or state courts located in Houston, Xxxxxx County, Texas.
15. Counterparts. This Agreement may be executed in one or more
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counterparts, each of which when executed and delivered shall be an original
and all of which when executed shall constitute one and the same instrument
and agreement. It shall not be necessary in making proof of this Agreement
or any counterpart hereof to produce or account for any of the other
counterparts. A copy of this Agreement signed by one party and faxed to another
party shall be deemed to have been executed and delivered by the signing party
as an original. A photocopy of this Agreement shall be effective as an original
for all purposes.
16. Reliance on Counsel. The Parties hereto each state that they have read
--------------------
this Agreement carefully, that they have consulted with counsel regarding the
terms and provisions of this Agreement, and that they have relied solely upon
their own judgment without the influence of anyone in entering into this
Agreement. Each Party acknowledges and agrees that they and their counsel have
been equally involved in the drafting, negotiation and execution of this
Agreement and that no law or rule of construction shall be raised or used in
which the provisions of this Agreement shall be construed in favor or against
either Party hereto because one is deemed to be the author thereof. Each Party
agrees to be solely responsible for all fees and expenses that they may incur
with legal counsel and other representatives in entering into this Agreement.
17. Confidentiality. The Parties acknowledge and agree that the financial
---------------
details of this Agreement are confidential and will not be disclosed to
non-parties under any circumstancesexcept as requiredby law.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands fully
read the above and fully understand the contents and/or provisions thereof.
/s/ Xxxxxxx X. Xxxxx
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XXXXXXX X. XXXXX, Individually
/s/ Xxxxxx X. XxXxxxxxx
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NEW CENTURY ENERGY CORP. (f/k/a
Vertica Software, Inc.)
By: Xxxxxx X. XxXxxxxxx, President
/s/ Xxxxxxx X. Xxxxx
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ERC SOLUTIONS, INC.
By: Xxxxxxx X. Xxxxx, President
/s/ Xxxxxx X. XxXxxxxxx
---------------------------------
XXXXXX X. XXXXXXXXX, Individually
EXHIBIT A
CONVERSION, REPURCHASE AND
RESTRICTION AGREEMENT
THIS AGREEMENT, dated as of the 19th day of December, 2005, is by and among
Xxxxxxx X. Xxxxx, an individual resident of Xxxxxx County, Texas ("Xxxxx") and
New Century Energy Corp. (f/k/a Vertica, Software, Inc.), a Colorado corporation
("NCEY"). Xxxxx and NCEY are referred to herein collectively as the "Parties"
and individually as a "Party".
RECITALS
X. Xxxxx is the holder of 5,000 shares of Series A Convertible Preferred
Stock, $.001 par value per share (the "Series A Stock") issued by NCEY which may
be converted into 1,500,000 shares of Common Stock, $.001 par value per share
(the "Common Stock") of NCEY.
X. Xxxxx provided NCEY with a notice of conversion of the Series A Stock on
March 18, 2005 and NCEY has, for reasons NCEY regards as valid but Xxxxx
disputes, not yet issued the shares of Common Stock issuable upon conversion.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein
and other good and valuable consideration, the receipt of which is acknowledged
by each Party, it is agreed as follows:
ARTICLE I
CONVERSION OF SERIES A STOCK
1.1 Conversion of Series A Stock. Simultaneously with the execution and
--------------------------------
delivery of this Agreement, and subject to the other terms hereof, NCEY will
issue and cause to be registered in Xxxxx'x name 1,100,000 shares of Common
Stock, $.001 par value per share (the "Common Stock"). Such shares of Common
Stock shall be evidenced by 22 certificates, each representing 50,000 shares of
Common Stock and shall be fully paid and non-assessable shares of the capital
stock of NCEY. The Parties acknowledge and agree for all purposes that the
Common Stock so issued has been issued solely in exchange for the 5,000 shares
Series A Stock, that no additional consideration has been given or received
therefor, and that no person has been or will be paid any compensation for or in
connection with the exchange of the Series A Stock for the Common Stock. The
Parties additionally agree that after the 5,000 shares of Series A Stock are
exchanged for the 1,100,00 shares of Common Stock, that Xxxxx will have no
further rights in connection with any Series A Stock.
1.2 Date of Issue. NCEY hereby acknowledges and agrees that
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(a) the Series A Convertible Preferred Stock was originally
issued and all consideration therefore was received on or about
February 13, 2004; and
(b) Xxxxx is not an affiliate of NCEY and has not been an
affiliate of NCEY since September 30, 2004.
ARTICLE II
RESTRICTIONS ON TRANSFER
2.1. Limitation on Sales. Xxxxx understands that NCEY has not registered
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the Shares under the Securities Act of 1933 or the applicable securities laws of
any state in reliance on exemptions from registration. Except as specifically
stated herein, no other person has a direct or indirect beneficial interest in
the Shares and Xxxxx represents that he acquired the Series A Convertible
Preferred Stock for investment purposes and not with the intention of
distribution. Xxxxx agrees that he will not sell, pledge, hypothecate or
otherwise transfer the Shares except pursuant to an effective registration
statement or an exemption from registration under applicable laws. In
connection with these restrictions, Xxxxx acknowledges and consents to the
placement of the following restrictive legend on the certificate(s) or other
document(s), if any, evidencing the Shares:
"THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES
LAWS OF ANY STATE AND MAY NOT BE SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE
TRANSFERRED, EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE ACT OR THE DELIVERY TO THE COMPANY OF AN OPINION OF COUNSEL,
SATISFACTORY TO THE COMPANY, THAT AN EXEMPTION FROM SUCH REGISTRATION IS
AVAILABLE AND THAT SUCH TRANSFER WILL NOT RESULT IN ANY VIOLATION OF THE
LAW; PROVIDED HOWEVER, THAT THIS LEGEND SHALL NOT APPLY AND ANY SALE,
PLEDGE, HYPOTHECATION OR OTHER TRANSFER OF THE SECURITES REPRESENTED HEREBY
MAY BE MADE PURSUANT TO RULE 144(k)."
2.2 Legal Opinion. NCEY acknowledges and agrees that the form of opinion of
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Franklin, Xxxxxxxx & Xxxxx, PC attached to this agreement is acceptable to it in
connection with the sale or other transfer of the Shares by Xxxxx and will give
its transfer agent irrevocable instructions to accept such opinion in connection
with the transfer of the Shares or any of them by Xxxxx
ARTICLE III
MISCELLANEOUS
3.1. Successors and Assigns. This Agreement and the rights and obligations
-----------------------
hereunder shall be binding upon and inure to the benefit of the Parties and
their respective heirs, executors, administrators, legal representatives,
successors and assigns.
3.2. Severability. If, after the execution of this Agreement, any part,
------------
term or provision of this Agreement is found to be invalid, illegal,
unenforceable, or in conflict with any valid controlling law, such part, term
or provision shall be fully severable. In lieu thereof, the Parties shall add
a legal, valid and enforceable provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible.
3.3. Captions. The captions used in this Agreement have been inserted only
--------
for reference purposes. The captions and order of such captions shall not be
deemed to govern, limit, modify, or in any manner affect the scope, meaning, or
intent of any of the provisions and/or terms of this Agreement, nor shall any
captions be given any legal effect.
3.4. Entire Understanding. This Agreement and the documents referenced
---------------------
herein contain the entire understanding between the Parties and supersede any
and all other agreements, understandings, and representations between the
Parties except as otherwise specifically provided.
3.5. Modification/Amendments. Any modification or amendment of this
-----------------------
Agreement shall be effective only if made in writing and signed by all Parties
hereto.
3.6. Jurisdiction/Venue. The laws of the State of Texas shall govern
------------------
the execution, effect, application, interpretation, validity, performance,
and enforcement of this Agreement and the rights, duties, and privileges
of the respective Parties hereto. All litigation between the Parties with
respect to this Agreement or the matters described herein shall be conducted in
the federal or state courts located in Houston, Xxxxxx County, Texas.
3.7. Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which when executed and delivered shall be an original
and all of which when executed shall constitute one and the same instrument
and agreement. It shall not be necessary in making proof of this Agreement
or any counterpart hereof to produce or account for any of the other
counterparts. A copy of this Agreement signed by one party and faxed to another
party shall be deemed to have been executed and delivered by the signing party
as an original. A photocopy of this Agreement shall be effective as an original
for all purposes.
3.8. Reliance on Counsel. The Parties hereto each state that they have read
-------------------
this Agreement carefully, that they have consulted with counsel regarding the
terms and provisions of this Agreement, and that they have relied solely upon
their own judgment without the influence of anyone in entering into this
Agreement. Each Party acknowledges and agrees that they and their counsel have
been equally involved in the drafting, negotiation and execution of this
Agreement and that no law or rule of construction shall be raised or used in
which the provisions of this Agreement shall be construed in favor or against
either Party hereto because one is deemed to be the author thereof. Each Party
agrees to be solely responsible for all fees and expenses that they may incur
with legal counsel and other representatives in entering into this
Agreement.
3.9. Confidentiality. The Parties acknowledge and agree that the
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financial details of this Agreement are confidential and will not be
disclosed to non-parties under any circumstances unless compelled by law.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the undersigned have hereunto set their hands fully
read the above and fully understand the contents and/or provisions thereof.
/s/ Xxxxxxx X. Xxxxx
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XXXXXXX X. XXXXX, Individually
/s/ Xxxxxx X. XxXxxxxxx
----------------------------------
NEW CENTURY ENERGY CORP.
(f/k/a Vertica Software, Inc.)
By: Xxxxxx X. XxXxxxxxx, President
EXHIBIT B
QUITCLAIM
Date: December 16th, 2005
Grantor: New Century Energy Corp. (f/k/a Vertica Software, Inc.)
Grantor's Mailing Address: 0000 Xxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Grantee: Xxxxxxx X. Xxxxx
Grantee's Mailing Address: 000 X. Xxxxx Xx., Xxxxx 000
Xxxxxx, Xxxxx 00000
Consideration: The obligations undertaken in the Settlement Agreement
dated December 16th,2005.
Property: All of the right, title and interest, if any, of Grantor in
the software interests and related intellectual property ("IP")
owned prior to September of 2004 by Vertica Software, Inc.; which
software constituted environmental regulatory compliance
solutions as required by government environmental agencies. The
software IP includes any existing installation of product,
hardware and software used to develop IP, all trademarks,
copyrights and marketing materials developed for sales and
distribution of such products as the same relate to the Internet
and intranet software products intended to serve industries that
are impacted by government regulation of hazardous materials and
other environmental laws and regulations previously developed by
Vertica Software, Inc.
FOR THE CONSIDERATION, Grantor quitclaims to Grantee all of Grantor's
right, title, and interest, if any, in and to the Property, to have and to hold
it to Grantee and Grantee's heirs, successors, and assigns forever. Neither
Grantor nor Grantor's heirs, successors, or assigns will have, claim, or demand
any right or title to the Property or any part of it.
GRANTOR HAS MADE NO AFFIRMATION OF FACT OR PROMISE RELATING TO THE PROPERTY
THAT HAS BECOME ANY BASIS FOR THIS BARGAIN, AND FURTHER, GRANTOR HAS MADE NO
AFFIRMATION OF FACT OR PROMISE RELATING TO THE PROPERTY THAT WOULD CONFORM TO
ANY SUCH AFFIRMATION OR PROMISE. GRANTOR DISCLAIMS ANY WARRANTY OF FITNESS FOR
ANY PARTICULAR PURPOSE WHATEVER WITH RESPECT TO THE PROPERTY. THE PROPERTY IS
QUITCLAIMED ON AN "AS IS," "WHERE IS" BASIS. ALL WARRANTIES THAT MIGHT ARISE BY
COMMON LAW AS WELL AS THE WARRANTIES IN SECTION 5.023 OF THE TEXAS PROPERTY CODE
(OR ITS SUCCESSOR) ARE EXCLUDED.
As a material part of the Consideration for this deed, Grantor and Grantee
agree that Grantee is taking the Property "AS IS" with any and all latent and
patent defects and that there is no warranty by Grantor that the Property has a
particular financial value or is fit for a particular purpose. Grantee
acknowledges and stipulates that Grantee is not relying on any representation,
statement, or other assertion with respect to the Property condition but is
relying on Grantee's examination of the Property. Grantee takes the Property
with the express understanding and stipulation that there are no express or
implied warranties.
/s/ Xxxxxx X. XxXxxxxxx
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XXXXXX X. XXXXXXXXX, President & CEO
of New Century Energy Corp., Grantor
/s/ Xxxxxxx X. Xxxxx
-----------------------------------------
XXXXXXX X. XXXXX, Grantee
STATE OF TEXAS Sec.
Sec.
COUNTY OF XXXXXX Sec.
Before Me, the undersigned Notary Public, on this day personally appeared
Xxxxxx X. XxXxxxxxx, President and CEO of New Century Energy Corp., who, being
by me duly sworn on oath deposed and said that he has read the foregoing
Quitclaim and that ever fact contained therein is within his personal knowledge
and is true and correct.
/s/ Xxxxxx X. XxXxxxxxx
-----------------------------------------
XXXXXX X. XXXXXXXXX, President & CEO
of New Century Energy Corp.
SUBSCRIBED AND SWORN TO BEFORE ME this 16 day of December , 2005.
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/s/ X. Xxxxxxx
----------------------------------------
Notary Public in and for The State
of Texas
STATE OF TEXAS Sec.
Sec.
COUNTY OF XXXXXX Sec.
Before Me, the undersigned Notary Public, on this day personally appeared
Xxxxxxx X. Xxxxx, individual, who, being by me duly sworn on oath deposed and
said that he has read the foregoing Quitclaim and that ever fact contained
therein is within his personal knowledge and is true and correct.
/s/ Xxxxxxx X. Xxxxx
-------------------------------
XXXXXXX X. XXXXX
SUBSCRIBED AND SWORN TO BEFORE ME this 13th day of December , 2005.
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/s/ Xxxxx Xxxxx
---------------------------------
Notary Public in and for The
State of Texas
[date]
Xxxxxxx X. Xxxxx
000 X. Xxxxx Xx.
Xxxxx 000
Xxxxxx, Xxxxx 00000
New Century Energy Corp.
0000 Xxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
RE: SALE OF [NUMBER] SHARES OF NEW CENTURY ENERGY CORP. COMMON STOCK BY
XXXXXXX X. XXXXX
Gentlemen:
Assuming the accuracy of the information set forth in the letter from [name
of broker] (the "Broker"), dated [insert date of letter], to me, a copy of which
is attached hereto, the representations and agreement of New Century Energy
Corp. (the "Issuer") set forth in that certain Conversion Agreement dated
December , 2005, and the information set forth in the letter from Xxxxxxx X.
----
Xxxxx (the "Stockholder"), it is our opinion that the sale by the Stockholder of
[number] shares of the common stock of the Issuer comply with all of the
requirements of Rule 144 under the Securities Act of 1933, as amended (the
"Act"), and that the such sale would not require registration under the Act or
any applicable state securities law.
Upon receipt of confirmation that a sale has occurred in accordance with
the representations in the attached letters, a new certificate or certificates
representing the Shares may be issued in such name or names as the Broker or
Stockholder may request, and such new certificate or certificates may be free of
any restrictive legend or stop transfer orders. If the Shares are to be issued
from a certificate or certificates representing a number of shares in excess of
the number sold, then any certificate or certificates representing the unsold
balance may be reissued in the name of the Stockholder or his nominee and should
bear the same restrictive legend as appears on other shares of restricted stock
issued by the Issuer and should be subject to a "stop transfer" order.
If no sale has occurred before [90 days] or the date on which the Issuer's
next quarterly or annual report is required to be filed with the Securities and
Exchange Commission, whichever first occurs, this opinion shall be void. This
letter is for the benefit of the Stockholder, the Issuer and the Issuer's
transfer agent only.
Very truly yours,
FRANKLIN, XXXXXXXX & XXXXX
xx: Broker