SETTLEMENT AGREEMENT
EXHIBIT
10.2
This
Settlement
Agreement (“Agreement”) dated as of August __, 2009 (“Effective Date”) is
entered into by and between
Xxxxxxxx-Xxxxx, Inc., a Minnesota
corporation, (“Xxxxxxxx-Xxxxx”), on the one hand, and Pacific
Ethanol, Inc., a Delaware corporation, (“PEI”) on the other hand
(collectively referred to herein as “Parties”).
I. Recitals
Whereas,
Xxxxxxxx-Xxxxx and PEI entered into a certain Joinder Agreement on or about July
28, 2008, in which PEI is guarantor of its subsidiary Pacific Ethanol Imperial,
LLC’s obligations under a Payment Agreement Pacific Ethanol Imperial, LLC
entered into with Xxxxxxxx-Xxxxx.
Whereas,
a dispute arose between Xxxxxxxx-Xxxxx and PEI as to PEI’s obligations as
guarantor.
Whereas,
Xxxxxxxx-Xxxxx filed a lawsuit against PEI and Pacific Ethanol Imperial, LLC
styled Xxxxxxxx-Xxxxx, Inc. v.
Pacific Ethanol, Inc. and Pacific Ethanol Imperial, LLC, Case No.
09-cv-00408-RPM in the United States District Court for the District of
Colorado (the “Lawsuit”).
Whereas,
the Parties desire to fully and finally settle, resolve and release each other
from all claims and disputes they may have against each other on the terms set
forth below.
II. Terms
FOR AND IN CONSIDERATION of
the compromise and full settlement of all claims and disputes, the Parties agree
as follows:
1. Entry of
Consent Judgment Against PEI. PEI consents to the entry of a
consent judgment in the form attached hereto as Exhibit A. Under the
terms of the consent judgment, judgment shall enter against PEI in the amount of
$1,909,555.76 and Xxxxxxxx-Xxxxx shall not undertake any efforts to enforce or
collect on the consent judgment until December 1, 2009. Any amounts
received by Xxxxxxxx-Xxxxx on its claims in the assignment for benefit of
creditors by Pacific Ethanol Imperial, LLC prior to December 1, 2009 shall be
deducted from the $1,909,555.76 judgment amount.
2. Mutual
Releases. Other than the obligations contained herein or
arising out of this Agreement, including the consent judgment, the Parties
hereby release each other and all of their past, present, and future
shareholders, officers, directors, employees from and against any and all claims
of every kind and nature, regardless of the legal theory upon which they are
based, whether known or unknown, now existing or arising at any time in the
future, arising out of any and all agreements, events, acts, omissions or
conduct relating to, in connection with, or arising out of the subject matter of
the Lawsuit, including but not limited to any claims for payment under the
Payment Agreement or Joinder Agreement.
3. No Release
of Claims Against Pacific Ethanol Imperial, LLC. The Parties
expressly acknowledge and agree that nothing in this Agreement constitutes a
release of Xxxxxxxx-Xxxxx’x claims against Pacific Ethanol Imperial, LLC,
including but not limited to claims made in Pacific Ethanol Imperial, LLC’s
assignment for the benefit of creditors; provided, however, that upon PEI’s
complete satisfaction of the consent judgment, the releases in paragraph 2 of
this Agreement shall become effective as to Pacific Ethanol Imperial,
LLC. Further, concurrent with the filing of the consent judgment
against PEI, Xxxxxxxx-Xxxxx agrees to file a stipulation of dismissal without
prejudice of its claims against Pacific Ethanol Imperial, LLC to become
effective upon the court’s entry of the consent judgment.
4. Acknowledgment
and Waiver of Future Claims. The
Parties hereby acknowledge California Civil Code Section 1542, which
provides: “A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at the time of executing
the release, which if known by him must have materially affected his settlement
with the debtor.” The Parties, having been made aware of California
Civil Code Section 1542, hereby waive the provisions of said section and any all
future claims based on, or in connection with, the subject matter of the
Lawsuit.
5. Future
Discovery. The Parties acknowledge that they may hereafter
discover facts relating to the Lawsuit that occurred prior to the date of this
Agreement and are different from, or in addition to, those which they now know
or believe to be true, and the Parties agree that this Agreement shall be and
remains effective and applicable in all respects, notwithstanding such different
or additional facts, or the discovery thereof.
6. Voluntarily
and Knowingly. The Parties acknowledges they have read this
Agreement and understand all of its terms, and that this Agreement is executed
voluntarily, without duress, and with full knowledge of its legal
significance. Each Party to this Agreement has received independent
legal advice from his, her or its attorney with respect to the legal
consequences of making the settlement and release provided for herein and with
respect to the execution of this Agreement.
7. Warranty of
Capacity to Execute Agreement. The
Parties represent and warrant that no other person or entity has or has had any
interest to the claims, demands, obligations, or causes of action referred to in
this Agreement, except as otherwise set forth herein, and that the parties have
the sole right and exclusive authority to execute this Agreement and receive the
sums specified herein, and that the Parties have not sold, assigned,
transferred, conveyed or otherwise disposed of any of the claims, demands,
obligations, or causes of action released or referred to in this
Agreement. The Parties represent and warrant that they have the legal
power and authority to enter into and bind the parties to the terms and
conditions contained in this Agreement.
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8. Construction. The
Parties agree that in the event of any dispute concerning the interpretation or
construction of this Agreement, no presumption shall exist with respect to the
party initially drafting the Agreement. All Parties agree they have
had ample opportunity to influence the choice of language and terms in this
Agreement.
9. Duty to
Effectuate. Each of the Parties agrees to perform any lawful
additional acts, including the execution of additional agreements, as are
reasonably necessary to effectuate the purpose of this Agreement.
10. Sufficiency
of Consideration. Other than the terms set forth in this
Agreement, the Parties each acknowledge and agree that no additional
consideration is required or owing to the other, and that sufficient
consideration has passed between them by virtue of this Agreement to render this
Agreement valid and enforceable.
11. Entire
Agreement. Except for those agreements expressly referenced
herein, this Agreement constitutes the complete, final and exclusive embodiment
of the entire agreement between the parties with regard to the subject matter
hereof. This Agreement is entered into without reliance on any
promise or representation, written or oral, other than those expressly contained
herein. The Agreement may not be modified except in a writing signed
by a duly authorized officer of each of the parties.
12. Governing
Law and Forum. This Agreement will be governed by and
construed according to the laws of the State of Colorado without regard to
choice of law principles. The Parties agree and acknowledge that any
controversy arising out of or relating to this Agreement or the breach thereof,
or any claim or action to enforce this Agreement or portion thereof, or any
controversy or claim requiring interpretation of this Agreement must be brought
in federal or state court within the State of Colorado.
13. Attorney
Fees. Should any Party breach the terms of this Settlement
Agreement, the breaching party shall be liable to the non-breaching party for
damages. Damages shall include but not be limited to, attorney fees
and costs.
14. Severable. If
any provision of this Agreement is determined to be invalid, void or
unenforceable, in whole or in part, this determination will not affect any other
provision of this Agreement, and the provision in question shall be modified so
as to be rendered enforceable.
15. Enforce
According To Terms. The Parties intend this Agreement to be
enforced according to its terms.
16. Successors
and Assigns. This Agreement shall bind the heirs, personal
representatives, successors, assigns, executors and administrators of each
party, and inure to the benefit of each party, its heirs, successors and
assigns.
17. Waiver. No
term or condition of this Agreement shall be deemed to have been waived, nor
shall there be an estoppel against the enforcement of any provision of this
Agreement, except by written instruments signed by the party charged with the
waiver or estoppel; no written waiver shall be deemed a continuing waiver unless
specifically stated therein, and the written waiver shall operate only as to the
specific term or condition waived, and not for the future or as to any other act
than that specifically waived.
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18. Counterparts
and Facsimile Signatures. This
Agreement may be executed in one or more counterparts, any of which need not
contain the signatures of more than one party but all signed counterparts taken
together will constitute one and the same agreement. A facsimile
signature will be deemed as valid as an original signature.
19. Section
Headings. The section and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
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of the page left blank intentionally]
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IN
WITNESS WHEREOF, the parties have duly authorized and caused this Agreement to
be executed as follows:
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Xxxxxxxx-Xxxxx,
Inc.
By:
/s/ Xxxxx
Xxxx
Its:
President
Date:
August 5,
2009
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By:
/s/ Xxxx X.
Xxxxxx
Its:
COO
Date:
August 6,
2009
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IN THE
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF COLORADO
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Civil
Action No. 09-cv-00408-RPM
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XXXXXXXX-XXXXX,
INC., a Minnesota Corporation,
Plaintiff,
v.
PACIFIC
ETHANOL, INC., a Delaware Corporation, and PACIFIC ETHANOL IMPERIAL, LLC,
a California Limited Liability Corporation,
Defendants.
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CONSENT
JUDGMENT
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On
February 26, 2009, Plaintiff Xxxxxxxx-Xxxxx, Inc. (“Xxxxxxxx-Xxxxx”) filed this
action against Pacific Ethanol, Inc. (“PEI”) as guarantor under a certain
Payment Agreement entered into between Xxxxxxxx-Xxxxx, XXX and Pacific Ethanol
Imperial, LLC. Xxxxxxxx-Xxxxx and PEI have entered into a Settlement
Agreement pursuant to which they have agreed to settle the controversy between
them based on certain terms and conditions, including the entry of the following
Consent Judgment.
I. CONSENT
JUDGMENT
Having
considered the matters, IT IS HEREBY ORDERED, ADJUDGED AND DECREED
that:
1. This Court
has jurisdiction over this action pursuant to 28 U.S.C. § 1331.
2. This Court
has personal jurisdiction over Xxxxxxxx-Xxxxx and PEI and venue is proper in
this District under 28 U.S.C. § 1391.
3. Pursuant to
the Settlement Agreement, judgment shall enter against PEI in the amount of
$1,909,555.76. However, pursuant to the Settlement Agreement, this
amount of this judgment shall be reduced by any amounts Xxxxxxxx-Xxxxx receives
on its claims in the assignment for benefit of creditors by Pacific Ethanol
Imperial, LLC.
4. Pursuant to
the Settlement Agreement, Xxxxxxxx-Xxxxx (or its assignees, if any) shall not
undertake any efforts to enforce or collect on this Consent Judgment until
December 1, 2009.
5. Xxxxxxxx-Xxxxx is
expressly permitted to assign or pledge (without further consent or notice) all
or any portion of this judgment remaining outstanding at any time.
The Clerk
of the Court is directed to enter this Consent Judgment forthwith.
IT IS SO ORDERED.
Dated: ___________________________,
2009
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BY
THE COURT:
________________________________
United
States District Court Judge
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