SETTLEMENT AGREEMENT AND MUTUAL RELEASE
Exhibit
10.1
SETTLEMENT
AGREEMENT AND MUTUAL RELEASE
This
AGREEMENT OF SETTLEMENT AND MUTUAL RELEASE (the "Agreement") is entered into
by
and between Defendants U.S. Global Nanospace, Inc. (f/k/a U.S. Global Aerospace,
Inc.) ( “USGN”) and Xxxxx Xxxxxx (“Xxxxxx”), Plaintiff Everest International,
Inc. f/k/a Xxxx Xxxxxx Property, Inc. (“Everest”), and USDR, Inc., USDR
Aerospace, LTD., Lake Comanche Ranch, LTD., Avcom Technologies, LTD., and
Serliuqs Corp., (collectively “USDR”). Hereafter, the aforementioned business
entities and individuals shall be jointly referred to as “Parties.”
RECITALS
WHEREAS,
on December 19, 2005, Everest, by and through his counsel filed a Complaint
in
Tarrant County District Court, State of Texas, entitled Everest
International, Inc. f/k/a/ Xxxx Xxxxxx Property, Inc. v. U.S. Global Nanospace,
Inc., U.S. Global Aerospace, Inc., and Xxxxx Xxxxxx,
Cause
No. 000-000000-00 (the "Action") arising out of the purported breach of an
agreement to lease property at 0000 Xxxxxx Xxxx, Xxxxxxxxx, XX, which is owned
by Everest (hereinafter the “Property”);
WHEREAS,
the Parties are represented by counsel and have had the opportunity to consult
with such counsel before signing this Settlement Agreement; and
WHEREAS,
the Parties have concluded that in order to avoid further expenditure of
substantial time, effort and resources in litigating the disputes among the
Parties, the Parties wish to fully, finally and forever settle and compromise
all claims held or asserted through the date of this Agreement.
THE
PARTIES THEREFORE NOW, in
consideration of the foregoing recitals and mutual undertakings contained in
this Agreement, the Parties agree to the terms set forth below:
1. Obligations
of USDR and Xxxxxx:
In
consideration of this Agreement, USDR, as owner of the following items, shall
convey and transfer ownership to USGN each of the following items, along with
all documents, titles, keys and combinations necessary to transfer
ownership:
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(a)
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All
equipment related to metal fabrication, such as drill presses, welders,
table saw, and tools;
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(b)
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All
pallet racks and shelving;
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(c)
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All
office furniture and front office filing cabinets (not including
computers, printers, copiers, or phone systems);
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(d)
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One
Yale Forklift, model GIC505DENUAE083 (title transfer after loading
complete);
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(e)
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One
floor pallet xxxx;
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(f)
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One
“Movin Cool” Classic Plus 14, located in the computer room of the
Property;
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(g)
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One
HP DesignJet 450C (as is with stored document files removed);
and
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| (h) | One single axle utility trailer (with no certificate of origin, title, or tags). |
USDR
and
Xxxxxx, as controlling principal on behalf USDR, represent and warrant that
USDR
and Xxxxxx have all requisite power and authority (corporate or otherwise)
to
execute, deliver and perform this Agreement and the transactions contemplated
thereby, and that USDR holds unencumbered title to all property to be
transferred to USGN under this Agreement. USDR and Xxxxxx agree that Everest
and
USGN will be held harmless for any subsequent claims of ownership relating
to
any property that is removed from the Property and/or any property that is
transferred to USGN or Everest as part of this Agreement.
| 2. |
Obligations
of USGN.
In consideration of this Agreement, USGN agrees to the
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following:
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(a)
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conveyance
and transfer of ownership of the items listed in ¶ 1, above, to Everest by
June 16, 2006, along with all documents, titles, keys and combinations
necessary to transfer ownership;
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(b)
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other
than the items set forth in ¶ 1 above, removal of all other items
belonging to USGN, USDR and Xxxxxx that are remaining on the Property,
leaving the Property broom clean, within ten calendar days of June
16,
2006, in the following order:
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i.
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removal
of property in the fenced parking area of the Property, including
the 48’
truck trailer located on the
Property;
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ii.
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removal
of the three large storage units behind the building located on the
Property;
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iii.
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removal
of the chemicals stored in the southwest corner of the building located
on
the Property, including all cabinets and
containers;
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iv.
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removal
of the contents of the warehouse area of the building located on
the
Property; and
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| v. |
removal
of all files and computers owned by USGN in the office area of the
building located on the Property;
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(c)
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issuance
of 893,617 shares (closing price on June 12, 2006 of $.047 per share)
of
restricted common stock of USGN to Everest (the “Shares”) within ten
calendar days of June 16, 2006;
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| (d) |
tender
cash payment in the amount of $10,000 to Everest by June 16, 2006;
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| (e) |
forfeit
all claims to the $11,000 security deposit paid to Everest pursuant
to the
Lease Agreement; and
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| (e) |
tender
cash payment of $32,000 at 10% per year via monthly installments
of
$1,464.43 commencing on October 1, 2006 with no prepayment
penalty.
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3. Obligations
of Everest.
Everest
agrees to give USGN and its employees access to the Property for the purpose
of
removing their property therefrom.
Everest
further agrees that, within five business days following full execution of
this
Agreement and the completion of the Obligations of USGN in Paragraph 2(a),
2(b),
2(c) and 2(d), it shall cause its counsel to file a dismissal of the Action
with
prejudice
as to
all of the Defendants.
4. Costs
and Fees.
All
parties agree to bear their own costs and fees with regard to this
Action.
5. Release
by Everest.
In
further consideration of the foregoing, Everest, on behalf of itself and their
respective officers, directors, parent corporations, subsidiary and affiliate
corporations, employees, agents, servants, attorneys, heirs, executors,
representatives, administrators and assigns, does hereby release and discharge
USGN, Xxxxxx and USDR, and their respective officers, directors, parent
corporations, subsidiary and affiliate corporations, employees, agents,
servants, attorneys, heirs, executors, representatives, administrators and
assigns, jointly and severally, from any and all rights, claims, debts, demands,
acts, agreements, liabilities, obligations, damages, costs, fees (including,
without limitation, those of attorneys), expenses, actions, and/or causes of
action of any nature whatsoever, whether known or unknown, suspected or claimed,
matured or unmatured, fixed or contingent, direct or indirect, through the
date
of this Agreement.
6. Release
by Defendants.
In
further consideration of the foregoing, USGN, Xxxxxx and USDR (collectively,
“Defendants”), on behalf of themselves and their respective officers, directors,
parent corporations, subsidiary and affiliate corporations, employees, agents,
servants, attorneys, heirs, executors, representatives, administrators and
assigns, does hereby release and discharge Everest, and its respective officers,
directors, parent corporations, subsidiary and affiliate corporations,
employees, agents, servants, attorneys, heirs, executors, representatives,
administrators and assigns, jointly and severally, from any and all rights,
claims, debts, demands, acts, agreements, liabilities, obligations, damages,
costs, fees (including, without limitation, those of attorneys), expenses,
actions, and/or causes of action of any nature whatsoever.
7. Release
by Xxxxxx and USDR.
In
further consideration of the foregoing, USGN, Xxxxxx and USDR (collectively,
“Defendants”), on behalf of themselves and their respective officers, directors,
parent corporations, subsidiary and affiliate corporations, employees, agents,
servants, attorneys, heirs, executors, representatives, administrators and
assigns, does hereby release and discharge Everest, and its respective officers,
directors, parent corporations, subsidiary and affiliate corporations,
employees, agents, servants, attorneys, heirs, executors, representatives,
administrators and assigns, jointly and severally, from any and all rights,
claims, debts, demands, acts, agreements, liabilities, obligations, damages,
costs, fees (including, without limitation, those of attorneys), expenses,
actions, and/or causes of action relating to or arising out of the storage
of or
damages to any property belonging to USDR or Xxxxxx located at or on the
Property.
8. Waiver
of All Claims.
The
Parties agree that the releases provided for herein extend to all claims
released above whether known or unknown, suspected or unsuspected.
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9. Representations
and Warranties.
The
Parties represent and warrant to and agree with each other as
follows:
(a) Each
party has had the opportunity to receive and have received independent legal
advice from attorneys of their choice with respect to the advisability of making
this settlement and the releases provided herein and with respect to the
advisability of executing this Agreement;
(b) Except
as
expressly stated in this Agreement, no party has made any statement or
representation to any other party regarding any fact, which statement or
representation is relied upon by any other party in entering into this
Agreement. In connection with the execution of this Agreement or the making
of
this Settlement provided for herein, no party to this Agreement has relied
upon
any statement, representation or promise of any other party not expressly
contained herein;
(c) This
Agreement is intended to be final and binding upon the Parties and is further
intended to be effective as a full and final accord and satisfaction regardless
of any claims of fraud, misrepresentation, concealment of fact, mistake of
fact
or law, duress, or any other circumstances whatsoever. Each party relies upon
the finality of this Agreement as a material factor inducing that party's
execution of this Agreement;
(d) There
are
no other agreements or understandings between the Parties hereto relating to
the
matters or releases referred to in this Agreement;
(e) All
Parties hereto and their counsel have made such investigation of the facts
pertaining to the releases contained herein as they deem necessary;
(f) The
terms
of this Agreement are contractual and are the result of arms-length negotiation
among the Parties;
(g) This
Agreement has been carefully read by each party and the contents thereof are
known and understood by each of the Parties; and
(h) Consistent
with their obligations under the law, all Parties to this Agreement agree that
they shall not take any position with any third party that is contrary to,
or in
any way inconsistent with, any provision of this Agreement.
10. Everest’s
Representations and Warranties for Issuance of USGN Stock
(i) Everest
understands and acknowledges that the Shares have not been
registered
with the Securities and Exchange Commission under Section 5 of the of the
Securities Act or registered or qualified with any applicable state or
territorial securities regulatory agency in reliance upon one or more exemptions
afforded from registration or qualification.
(ii) Everest
understands and acknowledges that the Shares are deemed
to
be “restricted” under the Securities Act, and may be re-sold only pursuant to
exemptions provided by the Securities Act or pursuant to an effective
registration statement. Everest understands and acknowledges that USGN is
required to place a legend on the certificate stating that the Common Stock
not
been registered under the Securities Act.
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11. Survival
of Warranties.
The
representations and warranties contained in this Agreement are deemed to and
do
survive execution of this Agreement and/or the closing hereof.
12. Further
Representations.
The
Parties hereto represent and warrant to each other that they have not heretofore
assigned or transferred, or purported to assign or transfer, to any person
or
other entity, any right, title or interest in any claim or other matter which
each purports to release herein. In the event that such representation is false,
and any such claim or matter is asserted against any party hereto (and/or the
successor of such party) by any party or entity who is the assignee or
transferee of such claim or matter, then the party hereto who assigned or
transferred such claim or matter shall fully indemnify, defend and hold harmless
the party against whom such claim or matter is asserted (and its successors)
from and against such claims or matters and from all actual costs, fees
(including all attorneys' fees), expenses, liabilities and damages which that
party (and/or its successors) incurs as a result of the assertion of such claim
or matter.
13. Modifications.
This
Agreement may not be amended, canceled, revoked or otherwise modified except
by
written agreement subscribed by all of the Parties to be charged with such
modification.
14. No
Admission of Liability.
The
Parties hereto explicitly acknowledge and agree that this Agreement represents
settlement of doubtful and disputed claims, and that by entering into this
Agreement, no party admits or acknowledges the existence of any liability or
wrongdoing.
15. Covenant
Not to Xxx.
Each
party covenants and agrees not to bring any action, claim, suit or proceeding
against any party hereto which concerns the Released Matters, and each party
further covenants and agrees that this Agreement is a bar to any such claim,
action, suit or proceeding, save
and
except the breach or non-performance of this Agreement by any
party.
16. Severability.
If a
court of competent jurisdiction rules that any portion of this Agreement is
invalid or unenforceable, the remaining provisions shall remain in full force
and effect.
17. Warranty
of Authority.
Each
party whose signature is affixed hereto in its representative capacity
represents and warrants that it is authorized to execute this Agreement on
behalf of and to bind the entity on whose behalf its signature is
affixed.
18. Entire
Agreement.
This
Agreement constitutes the entire agreement between the Parties and supersedes
any and all other arrangements, understandings, negotiations, or discussions,
either oral or in writing, express or implied, relative to the matters which
are
the subject of this Agreement. The Parties hereto acknowledge that no
representations, inducements, promises, agreement or warranties, oral or
otherwise, have been made by any party hereto, or anyone acting on their behalf,
which are not embodied in this Agreement, that they have not executed this
Agreement in reliance on any such representation, inducement, promise, agreement
or warranty, and that no representation, inducement, promise, agreement or
warranty not contained in this Agreement including, but not limited to, any
purported supplements, modifications, waivers or terminations of this Agreement
shall be valid or binding unless executed in writing by all of the
Parties.
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19. 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.
20. Facsimile
Signatures.
This
Agreement may be executed and delivered by facsimile, in which case the Parties
shall promptly exchange hard copies of the signature pages.
21. Authorship.
This
Agreement shall be deemed to have been mutually pre-approved by all Parties
with
the advice of counsel and shall not be construed for or against any of them
solely by reason of authorship.
22. Remedies
for Breach.
In the
event of a breach of this Agreement, the Parties shall have all remedies
available at law or in equity.
IN
WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date
set
forth below.
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Dated:
June 15, 2006
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U.S.
GLOBAL NANOSPACE, INC.
(f/k/a
U.S. GLOBAL AEROSPACE, INC.)
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| By: |
/s/
Xxxx Xxxxxxxx
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| Its: |
Chief
Executive Officer
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Dated:
June 15, 2006
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USDR, INC. | ||
| By: |
/s/
Xxxxx Xxxxxx
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| Its: |
Secretary
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Dated:
June 14, 2006
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EVEREST
INTERNATIONAL, INC.,
f/k/a/
XXXX XXXXXX PROPERTY, INC.
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| By: |
/s/
Xxxxxxx X. Xxxxxxx
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| Its: |
President
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/s/
Xxxxx Xxxxxx
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Dated:
June 15, 2006
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XXXXX XXXXXX, individually | ||
0
XXXXXXXXXXXXXX
| XXXXX XX XX | § | |
| § | ||
| XXXXXX OF HARTFORD | § |
BEFORE
ME, the
undersigned notary public, on this day personally appeared XXXX
XXXXXXXX, who, being duly sworn on his oath, deposed and declared himself
to be in his capacity as representative of U.S. Global Nanospace, Inc. (f/k/a
U.S. Global Aerospace, Inc.), a Delaware corporation, and acknolwedged that
he
is duly authorized to enter into, sign and execute the foregoing instrument
on
behalf of U.S. Global Nanospace, Inc., on this 15th day of June,
2006.
| /s/ ILLEGIBLE | ||
| Notary Public in and for the | ||
| State of CT | ||
| My Commission Expires: 9/30/2009 |
| STATE OF __________________ | § | |
| § | ||
| COUNTY OF ________________ | § |
BEFORE
ME, the
undersigned notary public, on this day personally appeared Xxxxxxx Xxxxxxx,
who,
being duly sworn on his oath, deposed and declared himself to be in his
capacity
as representative of Everest International, Inc., a Texas corporation,
and
acknolwedged that he is duly authorized to enter into, sign and execute
the
foregoing instrument on behalf of Everest International, Inc., on this
______
day of ______________, 2006.
| ____________________________________ | ||
| Notary Public in and for the | ||
| State of _____________ | ||
| My Commission Expires: |
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| STATE OF __________________ | § | |
| § | ||
| COUNTY OF ________________ | § |
BEFORE
ME, the
undersigned notary public, on this day personally appeared Xxxxxxx Xxxxxxx,
who,
being duly sworn on his oath, deposed and declared himself to be in his capacity
as representative of Everest International, Inc., a Texas corporation, and
acknolwedged that he is duly authorized to enter into, sign and execute the
foregoing instrument on behalf of Everest International, Inc., on this ______
day of ______________, 2006.
| ____________________________________ | ||
| Notary Public in and for the | ||
| State of _____________ | ||
| My Commission Expires: |
| STATE OF Texas | § | |
| § | ||
| COUNTY OF Xxxxxxx | § |
BEFORE
ME, the
undersigned notary public, on this day personally appeared Xxxxx Xxxxxx, who,
being duly sworn on her oath, deposed and declared
herself to be in her capacity as representative of USDR, Inc., a Nevada
Corporation and acknowledge that she is duly authorized to enter into, sign
and
execute the foregoing instrument on behalf of USDR, Inc. on this 15 day of
June,
2006.
| /s/ Xxxxxxxx X. XxXxxx | ||
| Notary Public in and for the | ||
| State of Texas | ||
| My Commission Expires: 08/18/2009 |
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| STATE OF Texas | § | |
| § | ||
| COUNTY OF Tarrant | § |
BEFORE
ME, the
undersigned notary public, on this day personally appeared Xxxxxxx Xxxxxxx,
who,
being duly sworn on his oath, deposed and declared himself to be in his capacity
as representative of Everest International, Inc., a Texas corporation, and
acknolwedged that he is duly authorized to enter into, sign and execute the
foregoing instrument on behalf of Everest International, Inc., on this
14th day of June, 2006.
| /s/ Xxxxxx Xxxxxxx | ||
| Notary Public in and for the | ||
| State of Texas | ||
| My Commission Expires: 3-22-08 |
| STATE OF __________________ | § | |
| § | ||
| COUNTY OF ________________ | § |
BEFORE
ME, the
undersigned notary public, on this day personally appeared Xxxxx Xxxxxx,
an
individual, who, being duly sworn on his oath, deposed and acknowledged
that she
entered into, signed and executed the foregoing instrument, on this ______
day
of ______________, 2006.
| ____________________________________ | ||
| Notary Public in and for the | ||
| State of _____________ | ||
| My Commission Expires: |
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