Contract
10.23
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release (the “Settlement Agreement”) is entered
into effective on this 10th day of January 2017, by and between U.S. PRECIOUS METALS,
INC. (“USPR”), on the one hand, and RESOURCE TECHNOLOGY CORPORATION (“RTC”),
PLASMAFICATION TECHNOLOGY HOLDINGS, LLC (“PTH”), XXXXXXX
XXXX
(“Pane”), XXXXXX XXXXX (“Xxxxx”), BARRINGTON SCHNEER1 (“Xxxxxxx”), and XXXX
XXXXXXX (“Xxxxxxx”), on the other hand. USPR, RTC, PTH, Pane, Spano, Schneer, and Xxxxxxx
may be referred to herein individually as a “Party” or collectively as the “Parties.”
WHEREAS, on or about May 11, 2013, USPR, RTC, RTC’s shareholders, and PTH
entered into a Share Exchange Agreement, pursuant to which USPR was to acquire all of the
issued and outstanding shares of RTC in exchange for 300 million shares of USPR common
stock (the “Share Exchange Agreement”);
WHEREAS, on or about January 29, 2014, USPR, RTC, RTC’s shareholders, and PTH
entered into a Restructuring Agreement, pursuant to which, among other things: (1) the Share
Exchange Agreement was cancelled and terminated; (2) PTH delivered to USPR a Promissory
Note in the principal amount of $5 million, which was payable on or before January 30, 2015;
(3) USPR issued to RTC 1,250,000 shares of its newly created Class A Super Voting Preferred
Stock on or about February 1, 2014 (the “Restructuring Agreement”);
WHEREAS, certain disputes arose between the parties concerning the performance of
their respective obligations under the Restructuring Agreement and other related agreements and,
as a result, on May 12, 2015, USPR rescinded the 1,250,000 shares of Class A Super Voting
Preferred Stock it had issued to RTC pursuant to the Restructuring Agreement;
WHEREAS, on July 27, 2015, RTC commenced an action against USPR in the Circuit
Court of the 11th Judicial Circuit, in and for Miami-Dade County, Florida entitled Resource
Technology Corporation v. U.S. Precious Metals, Inc., Case No. 2015-017057-CA-01;
WHEREAS, on September 4, 2015, USPR filed a Notice of Removal, removing the
above-referenced state court Action to the United States District Court for the Southern District
of Florida, Case No. 1:15-cv-23357 (hereinafter, the “Litigation”);
WHEREAS, on September 25, 2015, USPR filed an Answer, Affirmative Defenses,
Counterclaims and Third-Party Complaint against RTC, PTH, Pane, Spano, Schneer, and Xxxxxxx;
WHEREAS, on February 12, 2016, USPR filed an Answer, Affirmative Defenses,
Counterclaims and Amended Third-Party Complaint against RTC, PTH, Pane, Spano, Schneer,
and Xxxxxxx;
1 Xxxxxxx was named as a third-party defendant in this action, but was never served. Nevertheless, by signing this
Settlement Agreement, Xxxxxxx agrees to be bound by the terms of this Settlement Agreement and submits himself
to the jurisdiction of the Court in this action for purposes of enforcing the obligations created under this Settlement
Agreement.
WHEREAS, on June 17, 2016, Third-Party Defendants PTH, Pane, Xxxxx and Xxxxxxx
filed an Answer and Affirmative Defenses to Amended Third-Party Complaint and Third-Party
Counterclaim (by Pane only) against USPR;
WHEREAS, on June 29, 2016, RTC filed an Answer and Affirmative Defenses to
USPR’s Amended Complaint;
WHEREAS, on July 1, 2016, RTC filed an Amended Complaint against USPR;
WHEREAS, on July 8, 0000, XXXX filed an Answer and Affirmative Defenses to Pane’s
Third-Party Counterclaim;
WHEREAS, on July 14, 0000, XXXX filed an Answer and Affirmative Defenses to
RTC’s Amended Complaint;
WHEREAS, without any Party acknowledging any wrongdoing, the Parties desire to
resolve all disputes between them related to or arising from the Share Exchange Agreement, the
Restructuring Agreement, and all other issues raised or which could have been raised in the
Litigation, without the necessity of protracted and costly litigation, upon the terms set forth
herein;
NOW, THEREFORE, for good and valuable consideration exchanged, including the
promises contained herein and the above recitals, which are incorporated herein by reference, the
receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1.
Dismissal of the Litigation. Within three (3) days from the execution of this
Settlement Agreement by all Parties, RTC, PTH, Pane, Spano, and Xxxxxxx shall prepare and file
execute a Joint Stipulation for Dismissal With Prejudice in the Litigation in the form annexed
hereto as Exhibit A.
2.
Termination of the Share Exchange Agreement and the Restructuring Agreement.
The Parties acknowledge that the Share Exchange Agreement and the Restructuring Agreement
are terminated and no longer of any force and effect, and that all parties under those agreements
are relieved and discharged from any obligation or liability thereunder from inception.
3.
Releases.
(a)
Excluding the Joint Venture and Exploration, Exploitation and Mine Operating
Agreement by and between USPR and Marigold dated of even date hereof, including Marigold’s
obligations thereunder, USPR and each of its past and present affiliates and its past and present
predecessors, successors, assigns, heirs, subsidiaries, owners, equity holders, members,
managers, directors, officers, employees, representatives, agents and attorneys (collectively, the
“USPR Releasors”), hereby release and forever discharge RTC, PTH, Pane, Spano, Schneer, and
Xxxxxxx, and each of their past and present affiliates and their past and present predecessors,
successors, assigns, heirs, subsidiaries, owners, equity holders, members, managers, directors,
officers, employees, representatives, agents and attorneys (collectively, the “RTC Releasees”)
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from all actions, causes of action, suits, claims, counterclaims, debts, dues, sums of money,
accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements,
promises, variances, trespasses, damages, judgments, extents, executions, and demands
whatsoever, in law, admiralty or equity, which the USPR Releasors ever had, now have or
hereafter can, shall or may have against the RTC Releasees for, upon or by reason of any matter,
cause or thing whatsoever from the beginning of the world to the date of this Settlement
Agreement, including matters related to or arising from the Share Exchange Agreement, the
Restructuring Agreement, or any other claim raised or which could have been raised in the
Litigation, but specifically excluding any claim or cause of action related to or arising out of the
rights and obligations imposed by this Settlement Agreement.
(b)
RTC, PTH, Pane, Spano, Schneer, Altieri, and each of their past and
present affiliates and their past and present predecessors, successors, assigns, heirs, subsidiaries,
owners, equity holders, members, managers, directors, officers, employees, representatives,
agents and attorneys (collectively, the “RTC Releasors”), hereby release and forever discharge
USPR and each of its past and present affiliates and its past and present predecessors, successors,
assigns, heirs, subsidiaries, owners, equity holders, members, managers, directors, officers,
employees, representatives, agents and attorneys (the “USPR Releasees”) from all actions,
causes of action, suits, claims, counterclaims, debts, dues, sums of money, accounts, reckonings,
bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances,
trespasses, damages, judgments, extents, executions, and demands whatsoever, in law, admiralty
or equity, which the RTC Releasors ever had, now have or hereafter can, shall or may have
against the USPR Releasees for, upon or by reason of any matter, cause or thing whatsoever
from the beginning of the world to the date of this Settlement Agreement, including matters
related to or arising from the Share Exchange Agreement, the Restructuring Agreement, or any
other claim raised or which could have been raised in the Litigation, but specifically excluding
any claim or cause of action related to or arising out of the rights and obligations imposed by this
Settlement Agreement.
4.
Covenant Not To Xxx. Each releasing Party, on behalf of itself and its successors,
assigns, and other legal representatives, hereby absolutely, unconditionally and irrevocably,
covenants and agrees with and in favor of each released Party above that it will not xxx (at law,
in equity, in any regulatory proceeding or otherwise) any released Party on the basis of any claim
released, remised and discharged by any Party pursuant to the above releases. If any Party or any
of its successors, assigns or other legal representatives violates the foregoing covenant, such
Party, for itself and its successors, assigns and legal representatives, agrees to pay, in addition to
such other damages as any released Party may sustain as a result of such violation, all attorneys’
fees and costs incurred by such released Party as a result of such violation.
5.
No Admission of Wrongdoing. No admissions of wrongdoing or liability on the
part of any Party are expressed herein or are to be inferred hereby.
6.
Termination/Rescission. Each Party understands and acknowledges that the facts
in respect of which this Settlement Agreement is made may hereafter prove to be other than, or
different from, the facts in that connection now known by one or more of them or believed by
one or more of them to be true, and they agree that all of the terms of this Settlement Agreement
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shall be in all respects effective and not subject to termination or rescission by any such
difference in facts.
7.
Non-Disparagement. Except as required by law, the Parties agree that they will
not in any way (directly or indirectly) do or say anything at any time including, without
limitation, make any statements, whether written, verbal or electronic, or cause or encourage
others to make any statements, whether written, verbal or electronic, to anyone, including
without limitation, shareholders of USPR, that defame, disparage, slander, or in any way criticize
the business interests, reputation, practices, or conduct of any other Party. Specifically, the RTC
Releasors, jointly and severally, covenant and agree that they will not, directly or indirectly,
communicate with or provide any information to any other shareholder of USPR for purposes of
initiating, planning or effecting a legal or equitable claim, demand or action against the USPR
Releasees, for any reason whatsoever. The Parties acknowledge and agree that this non-
disparagement provision is a material inducement to enter into this Settlement Agreement, and if
any party breaches this provision, that Party shall be immediately liable for and required to pay
the offended Party, as liquidated damages, the amount of $25,000.00 as liquidated damages for
each such proven violation. The parties agree that this liquidated damages provision is necessary
because the damage that will in fact accrue as a result of a violation of this non-disparagement
provision is uncertain at the time of entering into this Settlement Agreement. This payment must
be paid to the offended party within fifteen (15) days of the receipt of notice of the violation. In
the event the payment is not received within fifteen (15) days, the offended party shall be entitled
to seek to enforce this Settlement Agreement by seeking the entry of a money judgment for the
amount due, plus all attorneys’ fees and costs incurred by the offended Party as a result of such
violation.
8.
Non-Interference. The RTC Releasors, jointly and severally, covenant and agree
that they will not, directly or indirectly, whether individually or as an employee, owner, partner,
member, consultant, agent, director, officer, shareholder or in any other capacity, engage in or
assist any individual or entity to engage in any act or action which they, acting reasonably,
believe or should believe would be harmful or inimical to the interests of the Company. This
includes, without limitation, interfering with the business, operations or business prospects of
USPR, including contacting any third party that has or had a business relationship with USPR.
9.
Complete Agreement; No Other Representations.
This Settlement Agreement
represents the complete agreement between the Parties concerning the settlement of the Litigation, and
supersedes any prior written and oral agreements between the Parties. Any amendments to this
Settlement Agreement must be in writing and signed by the Parties. In executing this Settlement
Agreement, the Parties have not seen, heard or relied upon any promises, statements, representations,
covenants, or warranties, whether express or implied, made by one another or by any representative or
other person or entity, except to the extent that a matter is expressly stated in this Settlement
Agreement.
10.
Law and Forum. This Settlement Agreement shall be governed by the laws of the
State of New Jersey without giving effect to the principles of conflicts of laws thereof. The Parties
irrevocably submit to the exclusive venue and jurisdiction of the State and Federal Courts located in
New Jersey in connection with any dispute arising out of and/or related to this Settlement Agreement.
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11.
No Assignment of Claims. The Parties each acknowledge and represent that they
have not assigned any claim arising out of and/or in connection with the Litigation to any third
party prior to the date of this Settlement Agreement.
12.
Attorneys’ Fees and Costs. Each Party shall bear their own attorneys’ fees and
costs incurred in connection with the Litigation, including the preparation of this Settlement
Agreement. However, if any Party institutes takes legal action to enforce this Settlement
Agreement or any provision of it, the prevailing party shall be entitled to recover from the losing
Party its reasonable attorneys’ fees and costs, at both the trial and appellate levels.
13.
Acknowledgements. Each Party hereby acknowledges and represents that:
(a)
it has the right, power, legal capacity and authority to enter into and to
perform each of the obligations undertaken in this Settlement Agreement;
(b)
each of the covenants and agreements contained in this Settlement
Agreement shall inure to the benefit of and bind the Parties hereto, their
respective agents, successors, representatives, heirs and/or assigns;
(c)
it has read this Settlement Agreement;
(d)
it clearly understands this Settlement Agreement and each of its terms;
(e)
it has had the benefit and advice of counsel of its own selection, or has had
the opportunity to consult with counsel of its own selection;
(f)
each and every term and provision of this Settlement Agreement has been
mutually agreed to and negotiated by it, and shall be construed simply
according to its fair meaning and not strictly for or against any Party,
including any negative inference against the Party that drafted this
Settlement Agreement; and
(g)
it has executed this Settlement Agreement freely, with knowledge, and
without influence or duress.
14.
Adequacy and Sufficiency of Consideration. The Parties hereby acknowledge
that the items set forth in this Settlement Agreement, including the dismissal of the claims
advanced in the Litigation, are adequate and sufficient consideration for this Settlement
Agreement.
15.
Severability. The invalidity of any provision of this Settlement Agreement shall
not affect the continuing enforceability of the remaining provisions.
16.
Further Assurances. The Parties agree that, in the event it is necessary to execute
additional related documentation which is necessary to consummate the intent of this Settlement
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Agreement, they will execute any necessary and reasonable documents upon request.
17.
Counterparts. This Settlement Agreement may be executed in counterparts and
by facsimile or electronic signatures, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the Parties have executed this Settlement Agreement as of the
date set forth above.
U.S. PRECIOUS METALS, INC.
By: ___________________________
Name: ________________________
Title: _________________________
Date: _________________________
PLASMAFICATION
TECHNOLOGY HOLDINGS, LLC
By: ___________________________
Name: ________________________
Title: _________________________
Date: _________________________
XXXXXX XXXXX
By: ___________________________
Date: ______________________
RESOURCE TECHNOLOGY
CORPORATION
By: ___________________________
Name: ________________________
Title: _________________________
Date: _________________________
XXXXXXX XXXX
By: ___________________________
Date: ______________________
XXXXXXXXXX XXXXXXX
By: ___________________________
Date: ______________________
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XXXX XXXXXXX
By: ___________________________
Date: ______________________
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