EXHIBIT 4.7
CONFIDENTIAL: FOR SETTLEMENT
PURPOSES ONLY
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
THIS SETTLEMENT AGREEMENT AND MUTUAL RELEASE (the "Agreement") is entered
into by and among International Utility Structures Inc., a corporation
incorporated under the laws of the Province of Alberta, Canada, and
International Utility Structures (Luxembourg) S.A., a limited liability company
incorporated under the laws of Luxembourg (collectively "IUSI"), and Metaltec
Holding Corp., a Delaware corporation, Goldner, Hawn, Xxxxxxx & Xxxxxxxx
Incorporated, and Union Metal Corporation, a Delaware corporation (collectively
"Metaltec"), as of the last date of execution hereof.
WHEREAS, IUSI filed suit against Metaltec Holding Corp. in the Common Pleas
Court of Xxxxx County, Ohio, Case No. 2001CV02175; and Metaltec Holding Corp.
filed suit against IUSI in the Common Pleas Court of Xxxxx County, Ohio, Case
No. 2001CV02545, which cases were consolidated (collectively the "Litigation");
and
WHEREAS, IUSI and Metaltec deny liability to the other; and
WHEREAS, the parties have reached an agreement which fully compromises,
settles and resolves the Litigation and various matters between them, except as
otherwise provided in this Agreement; and
WHEREAS, the parties wish to reduce the terms of their agreement to a
formal written Settlement Agreement and Mutual Release.
IN CONSIDERATION OF THE FOREGOING, and intended to be legally bound, the
parties agree as follows:
1. The following definitions shall apply to this Agreement:
A. The "Assumption Agreement" shall mean the Assumption and Indemnity
Agreement entered into between IUSI and Union Metal Corporation on or about
August 8, 2000.
B. The "General Escrow Agreement" shall mean the General Escrow
Agreement entered into between IUSI, Metaltec and the Escrow Agent on or about
August 8, 2000.
C. The "General Escrow Account" shall mean the escrow account
established pursuant to the General Escrow Agreement (Escrow Account No.
33-384040).
D. The "Environmental Escrow Agreement" shall mean the Environmental
Escrow Agreement entered into between IUSI, Metaltec and the Escrow Agent on or
about August 8, 2000.
E. The "Environmental Escrow Account" shall mean the escrow account
established pursuant to the Environmental Escrow Agreement (Escrow Account No.
33-984030).
F. The "Escrow Agent" shall mean U.S. Bank Trust National
Association, a national banking association, who has been designated as the
escrow agent under the General Escrow Agreement and the Environmental Escrow
Agreement.
G. The "Environmental Remediation Agreement" shall mean the
Environmental Remediation Agreement entered into between IUSI and Metaltec on
or about August 8, 2000.
H. The "Non-Competition Agreement" shall mean the Non-Competition
and Shaft Supply Agreement entered into between Metaltec Holding Corp., IUSI
and the Corporations, as that term is defined in said agreement, on or about
August 8, 2000.
I. The "SPA" shall mean the Share Purchase Agreement entered into
between IUSI and Metaltec on July 14, 2000.
2. Within three (3) business days of the complete execution of this
Agreement, IUSI and Metaltec, by and through their respective counsel of
record, shall execute and file an appropriate stipulation, in the form
attached hereto as Exhibit "A", to dismiss the Litigation with prejudice.
3. In consideration of the mutual covenants set forth herein, IUSI and
Metaltec agree that the Escrow Agent shall be instructed to immediately
disburse the following sums of money from the General Escrow Account in the
following manner:
A. A disbursement of a total of Four Million Dollars ($4,000,000) to
Metaltec in accordance with Metaltec's wire transfer instructions;
B. A separate disbursement of Five Hundred Thousand Dollars
($500,000) from the General Escrow Account into the Environmental Escrow
Account (the "Additional Escrow Funds"), with such monies to be treated as an
addition to and part of the Assets, as that term is defined in the
Environmental Escrow Agreement, and to be held and disbursed in accordance with
the terms and conditions of the Environmental Escrow Agreement; and,
C. After the payment of the disbursements set forth in subparagraphs
A-B above and payment to the Escrow Agent of all unpaid fees, costs and
expenses due it, all remaining monies in the General Escrow Account shall be
disbursed to International Utility Structures Inc. in accordance with IUSI's
wire transfer instructions.
2
The parties agree to issue a joint letter to the Escrow Agent
directing that the foregoing disbursements occur immediately from the General
Escrow Account and further providing instructions with respect to the Escrow
Agent's receipt, holding and disbursement of the Additional Escrow Funds for
the Environmental Escrow Account. The form and content of the letter to be sent
to the Escrow Agent shall be identical to the document attached hereto as
Exhibit "B".
Upon completion of the foregoing disbursements by the Escrow Agent,
the parties agree that the General Escrow Agreement and all obligations,
covenants and responsibilities owed thereunder shall be deemed immediately
canceled and terminated.
4. In further consideration of the mutual covenants set forth
herein, the parties hereby agree and acknowledge that the Non-Competition
Agreement is hereby modified and amended to change the period of
non-competition set forth in paragraphs 2.1(a) and 2.2(a) from five (5) years
from the date of the execution of said agreement to a period of four (4) years
from the date of the execution of said agreement. Except as specifically
amended by this Agreement, the terms and conditions of the Non-Competition
Agreement shall remain in full force and effect and shall be binding on the
parties to said agreement.
5. Except as provided in paragraph 6 of this Agreement, IUSI and
Metaltec absolutely and unconditionally release and forever discharge each
other from any and all actions, claims, rights, demands, obligations,
covenants, damages, costs, attorneys' fees, expenses, causes of action and
suits at law or equity which (a) either party ever had or now has, from the
beginning of the world to the date of this Agreement, by reason of any
transaction, occurrence, agreement, relationship, action or failure to act of
any kind whatsoever, including all factual allegations raised, or which could
have been raised, in the Litigation or (b) either party may hereafter have
under the SPA, including but not limited to, claims for indemnification
(collectively the "Released Obligations").
6. IUSI and Metaltec expressly agree that this Agreement does not
modify and the Released Obligations shall not include or modify any duties,
rights, covenants or other obligations of any kind whatsoever owed by any party
under the Assumption Agreement, the Environmental Escrow Agreement, as amended
hereby, the Environmental Remediation Agreement or the Non-Competition
Agreement, as amended hereby. Furthermore, IUSI and Metaltec agree that this
Agreement does not modify and the Released Obligations shall not include any
duties, rights, covenants or other obligations of any kind whatsoever owned by
any party under: (a) Sections 4.1(s)(i) through (v) of the SPA; (b) Section 9.1
of the SPA as it specifically relates to Sections 4.1(s)(i) through (v) of the
SPA; and/or (c) Section 7.1 of the SPA.
3
7. IUSI and Metaltec expressly acknowledge and agree that their
respective successors, assigns, parent entities, subsidiaries, affiliates,
officers, shareholders, directors, agents, employees, partners, members and
attorneys are included as persons/entities who are to be considered released
from the Released Obligations under this Agreement and agree to be bound by all
of the terms of this Agreement including, but not limited to, those set forth
in paragraph 4 of this Agreement. IUSI and Metaltec further represent and
warrant that they possess all necessary corporate power, authority and capacity
to enter into this Agreement on behalf of themselves and each of the entities
set forth above in this paragraph 7.
8. The parties agree and acknowledge that the acceptance of the
consideration herein and the parties' execution of this Agreement is in
settlement and compromise of disputed claims and that by agreeing to such
consideration, the parties do not admit liability one to the other.
9. This Agreement sets forth the entire agreement between the parties
and supersedes all prior agreements, understandings, negotiations and
communications between the parties, whether oral or written, relating to the
subject matter hereof. Each party acknowledges and represents that no party is
relying upon any statement or representation made by any other which is not
embodied in this Agreement. Each party acknowledges that it shall have no right
to rely upon any amendment, promise, modification, statement or representation
made or occurring subsequent to the execution of this Agreement unless the same
is in writing and executed by each of the parties hereto.
10. Each party to the Agreement shall be responsible for and pay all of
their own attorneys' fees, costs and expenses.
11. This failure of any party in this Agreement at any time to enforce
any provisions of this Agreement will in no way constitute or be construed as a
waiver of such provision or of any other provision hereof, nor in any way
affect the validity of, or the right thereafter to enforce, each and every
provision of this Agreement.
12. Should any provision of this Agreement be held or found to be invalid
or unenforceable, then all other provisions shall nevertheless continue in full
force and effect.
13. All matters affecting the interpretation of the Agreement and the
rights of the parties hereto shall be governed in accordance with the laws of
the State of Ohio.
14. The parties acknowledge that they have been represented by counsel of
their choice in all matters connected with the negotiation and preparation of
this Agreement, that they have reviewed this Agreement with their counsel and
that they fully understand the terms of this Agreement and the consequences
thereof.
15. This Agreement may be executed in counterparts with detachable
signature pages and shall constitute one agreement binding upon all parties
hereto as if all parties signed the same document. Signatures on this Agreement
transmitted by facsimile shall be deemed to be original signatures for all
purposes of this Agreement.
4
INTERNATIONAL UTILITY STRUCTURES (LUXEMBOURG) S.A.
By
----------------------------------------------
Its
---------------------------------------------
Date
--------------------------------------------
METALTEC HOLDING CORP.
By /s/ Xxxxxxx Xxxxxx Xx.
----------------------------------------------
Its President
---------------------------------------------
Date 5/23/2002
--------------------------------------------
5
INTERNATIONAL UTILITY STRUCTURES INC.
By /s/ Xxxxxx X.X. Xxxx
----------------------------------------------
Its PRESIDENT & CEO
---------------------------------------------
Date May 23, 2002
--------------------------------------------
INTERNATIONAL UTILITY STRUCTURES (LUXEMBOURG) S.A.
By /s/ Xxxxxx X.X. Xxxx
----------------------------------------------
Its DIRECTOR AND MANAGER
---------------------------------------------
Date May 23, 2002
--------------------------------------------
METALTEC HOLDING CORP.
By
----------------------------------------------
Its
---------------------------------------------
Date
--------------------------------------------
5
IN THE COURT OF COMMON XXXXX
XXXXX COUNTY, OHIO
International Utility Structures, Inc., et al., | Case No. 2001 CV 02175 &
| 2001 CV 02545
Plaintiffs, |
|
v. |
| JUDGE XXXXXXXX
|
Metaltec Holding Corp., | STIPULATION OF DISMISSAL
|
Defendant, |
Pursuant to Rule 41(A) of the Ohio Rules of Civil Procedure, International
Utility Structures Inc. and International Utility Structures (Luxembourg) S.A.
hereby dismisses all claims they asserted in Case No. 2001 CV 02175 and any and
all counterclaims which they asserted in Case No. 2001 CV 02545, with prejudice.
In accordance with Rule 41(A) of the Ohio Rules of Civil Procedure, Metaltec
Holding Corp. hereby dismisses all claims asserted by it in Case No. 2001 CV
02545 and any and all counterclaims which it asserted in Case No. 2001 CV 02175,
with prejudice. Each party will pay its own respective Court record costs.
Respectfully submitted,
/s/ Xxxxx X. Xxxxxx /s/ Xxxx X. Xxxxxx
------------------------------ ----------------------------------
Xxxxx X. Xxxxxx Xxxxxxx X. Xxxx (Pa. ID. #42154)
Xxxxxxx & Xxxxx Ltd. Xxxx X. Xxxxxx (Pa. ID. #44615)
One Seagate, 24th Floor Xxxx X. Xxxxxxxx (Pa. ID. #49730)
X.X. Xxx 00000 Xxxxxx Xxxxxxx Xxxxxx & Xxxxxxx, LLC
Xxxxxx, XX 00000-0000 000 Xxxxx Xxxxxx, 00xx Xxxxx
Telephone: (000) 000-0000 Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Facsimile: (000) 000-0000 Telephone: (000) 000-0000
e-mail: xxxxxxxx@xxxxxxxxx.xxx Facsimile: (000) 000-0000
Counsel for International Utility e-mail: xxx@xxxx.xxx
Structures Inc. Counsel for Metaltec Holding Corp.
[STAMP "EXHIBIT A"]
JOINT NOTICE TO ESCROW AGENT
May 23, 2002
Via Facsimile (000) 000-0000
and Federal Express
Xx. Xxxxxx Xxxxxxxx EP-MN-T2CT
U.S. Bank Trust National Association
Corporate Trust Services
000 X. 0xx Xxxxxx
Xx. Xxxx, XX 00000
Dear Xx. Xxxxxxxx:
Reference is made to (i) that certain General Escrow Agreement ("General
Escrow Agreement") dated August 8, 2000 among International Utility Structures
Inc., International Utility Structures (Luxembourg) S.A. (collectively "IUSI"),
Metaltec Holding Corp. ("Metaltec"), and U.S. Bank Trust National Association
("Escrow Agent") and (ii) that certain Environmental Escrow Agreement dated
August 8, 2000 among IUSI, Metaltec, and the Escrow Agent ("Environmental
Escrow Agreement").
IUSI and Metaltec hereby agree as follows:
(a) Escrow Agent is hereby instructed pursuant to Schedule II of the General
Escrow Agreement to disburse Three Million Dollars $3,000,000.00 from the
General Escrow Account to Metaltec in accordance with Metaltec's wire
transfer instructions, a copy of which are attached hereto as Exhibit "A;"
(b) Escrow Agent is hereby instructed pursuant to Schedule II of the General
Escrow Agreement to disburse One Million Dollars $1,000,000.00 from the
General Escrow Account to Metaltec's attorneys, Xxxxxx Xxxxxxx Xxxxxx &
Xxxxxxx, LLC in accordance with Xxxxxx Xxxxxxx Xxxxxx & Xxxxxxx, LLC's
wire transfer instructions, a copy of which are attached hereto as Exhibit
"B;"
(c) Escrow Agent is hereby instructed to disburse Five Hundred Thousand
Dollars $500,000.00 from the General Escrow Account to the Environmental
Escrow Account, with such monies thereafter to be treated as an addition
to and part of the Assets, as that term is defined in the Environmental
Escrow Agreement, and to be held and disbursed in accordance with the
terms and conditions of the Environmental Escrow Agreement;
(d) After making the disbursements set forth in subparagraphs (a)-(c) above,
Escrow Agent is instructed to disburse all remaining monies in the General
Escrow Account, less Escrow Agent's unpaid fees, costs and expenses, to
IUSI, in
[STAMP "EXHIBIT B"]
accordance with IUSI's wire transfer instructions, a copy of which are
attached hereto as Exhibit "C;"
(e) Upon completion of the foregoing disbursements, the General Escrow
Agreement and all obligations, covenants and responsibilities owed
thereunder shall be deemed immediately canceled and terminated.
(f) Upon completion of the foregoing disbursements, the Environmental Escrow
Agreement and Environmental Escrow Account will continue in full force and
effect until terminated pursuant to the terms of the Environmental
Escrow Agreement.
Please contact counsel for Metaltec, Xxxxxxx X. Xxxx, Esq. (000) 000-0000 and
counsel for XXXX, Xxxxx X. Xxxxxx, Esq. (000) 000-0000 with any questions you
may have regarding these instructions.
INTERNATIONAL UTILITY STRUCTURES INC.
/s/ Xxxxxx X.X. Xxxx May 23, 2002
------------------------------------
By: XXXXXX X.X. XXXX
--------------------------------
Title: PRESIDENT & CEO
------------------------------
INTERNATIONAL UTILITY
STRUCTURES (LUXEMBOURG) S.A.
/s/ Xxxxxx X.X. Xxxx May 23, 2002
------------------------------------
By: XXXXXX X.X. XXXX
--------------------------------
Title: DIRECTOR AND MANAGER
------------------------------
METALTEC HOLDING CORP.
------------------------------------
By:
---------------------------------
Title:
------------------------------
(d) After making the disbursements set forth in subparagraphs (a) - (c) above,
Escrow Agent is instructed to disburse all remaining monies in the General
Escrow Account, less Escrow Agent's unpaid fees, costs and expenses, to
IUSI, in accordance with IUSI's wire transfer instructions, a copy of which
are attached hereto as Exhibit "C";
(e) Upon completion of the foregoing disbursements, the General Escrow
Agreement and all obligations, covenants and responsibilities owed
thereunder shall be deemed immediately canceled and terminated.
(f) Upon completion of the foregoing disbursements, the Environmental Escrow
Agreement and Environmental Escrow Account will continue in full force and
effect until terminated pursuant to the terms of the Environmental Escrow
Agreement.
Please contact counsel for Metaltec, Xxxxxxx X. Xxxx, Esq. (000) 000-0000 and
counsel for XXXX, Xxxxx X. Xxxxxx, Esq. (000) 000-0000 with any questions you
may have regarding these instructions.
INTERNATIONAL UTILITY STRUCTURES INC.
-------------------------------------------------
By:
---------------------------------------------
Title:
------------------------------------------
INTERNATIONAL UTILITY STRUCTURES (LUXEMBOURG) S.A.
-------------------------------------------------
By:
---------------------------------------------
Title:
------------------------------------------
METALTEC HOLDING CORP.
/s/ Van Zandt Xxxx
-------------------------------------------------
By: Van Zandt Xxxx
---------------------------------------------
Title: Chairman of the Board
------------------------------------------
Exhibit "A"
Wire transfer instructions for funds being transferred in the amount of Three
Million Dollars ($3,000,000.00) to Metaltec:
Key Bank
Cleveland, Ohio
Account Holder: Union Metal Corp.
ABA #: 000000000
Account #: 428184024
Exhibit "B"
Wire transfer instructions for funds being transferred in the amount of One
Million Dollars ($1,000,000.00) to Xxxxxx Xxxxxxx Xxxxxx & Xxxxxxx, LLC
Mellon Bank
Private Banking Division
Xxxxxxxxxx, XX 00000
For the Account of Xxxxxx Xxxxxxx Xxxxxx & Xxxxxxx, LLC
ABA #: 000000000
Account #: 162-8334
Exhibit "C"
Wire transfer instructions for funds being transferred to IUSI:
TD Canada Trust
000-0 Xxxxxx XX
Xxxxxxx, XX X0X 0X0
Transit #: 80609
Beneficiary: International Utility Structures Inc.
Account #: 0000000
JOINT NOTICE TO ESCROW AGENT
May 23, 2002
Via Facsimile (000) 000-0000
and Federal Express
Xx. Xxxxxx Xxxxxxxx EP-MN-T2CT
U.S. Bank Trust National Association
Corporate Trust Services
000 X. 0xx Xxxxxx
Xx. Xxxx, XX 00000
Dear Xx. Xxxxxxxx:
Reference is made to (i) that certain General Escrow Agreement ("General
Escrow Agreement") dated August 8, 2000 among International Utility Structures
Inc., International Utility Structures (Luxembourg) S.A. (collectively "IUSI"),
Metaltec Holding Corp. ("Metaltec"), and U.S. Bank Trust National Association
("Escrow Agent") and (ii) that certain Environmental Escrow Agreement dated
August 8, 2000 among IUSI, Metaltec, and the Escrow Agent ("Environmental
Escrow Agreement").
IUSI and Metaltec hereby agree as follows:
(a) Escrow Agent is hereby instructed pursuant to Schedule II of the General
Escrow Agreement to disburse Three Million Dollars $3,000,000.00 from the
General Escrow Account to Metaltec in accordance with Metaltec's wire
transfer instructions, a copy of which are attached hereto as Exhibit "A;"
(b) Escrow Agent is hereby instructed pursuant to Schedule II of the General
Escrow Agreement to disburse One Million Dollars $1,000,000.00 from the
General Escrow Account to Metaltec's attorneys, Xxxxxx Xxxxxxx Xxxxxx &
Xxxxxxx, LLC in accordance with Xxxxxx Xxxxxxx Xxxxxx & Xxxxxxx, LLC's
wire transfer instructions, a copy of which are attached hereto as Exhibit
"B;"
(c) Escrow Agent is hereby instructed to disburse Five Hundred Thousand
Dollars $500,000.00 from the General Escrow Account to the Environmental
Escrow Account, with such monies thereafter to be treated as an addition
to and part of the Assets, as that term is defined in the Environmental
Escrow Agreement, and to be held and disbursed in accordance with the
terms and conditions of the Environmental Escrow Agreement;
(d) After making the disbursements set forth in subparagraphs (a)-(c) above,
Escrow Agent is instructed to disburse all remaining monies in the General
Escrow Account, less Escrow Agent's unpaid fees, costs and expenses, to
IUSI, in
accordance with IUSI's wire transfer instructions, a copy of which are
attached hereto as Exhibit "C";
(e) Upon completion of the foregoing disbursements, the General Escrow
Agreement and all obligations, covenants and responsibilities owed
thereunder shall be deemed immediately canceled and terminated.
(f) Upon completion of the foregoing disbursements, the Environmental Escrow
Agreement and Environmental Escrow Account will continue in full force and
effect until terminated pursuant to the terms of the Environmental
Escrow Agreement.
Please contact counsel for Metaltec, Xxxxxxx X. Xxxx, Esq. (000) 000-0000 and
counsel for XXXX, Xxxxx X. Xxxxxx, Esq. (000) 000-0000 with any questions you
may have regarding these instructions.
INTERNATIONAL UTILITY STRUCTURES INC.
/s/ Xxxxxx X.X. Xxxx May 23, 2002
--------------------------------------------------
By: XXXXXX X.X. XXXX
----------------------------------------------
Title: PRESIDENT & CEO
-------------------------------------------
INTERNATIONAL UTILITY STRUCTURES (LUXEMBOURG) S.A.
/s/ Xxxxxx X.X. Xxxx May 23, 2002
--------------------------------------------------
By: XXXXXX X.X. XXXX
----------------------------------------------
Title: DIRECTOR AND MANAGER
-------------------------------------------
METALTEC HOLDING CORP.
--------------------------------------------------
By:
----------------------------------------------
Title:
-------------------------------------------
(d) After making the disbursements set forth in subparagraphs (a) - (c) above,
Escrow Agent is instructed to disburse all remaining monies in the General
Escrow Account, less Escrow Agent's unpaid fees, costs and expenses, to
IUSI, in accordance with IUSI's wire transfer instructions, a copy of which
are attached hereto as Exhibit "C;"
(e) Upon completion of the foregoing disbursements, the General Escrow
Agreement and all obligations, covenants and responsibilities owed
thereunder shall be deemed immediately canceled and terminated.
(f) Upon completion of the foregoing disbursements, the Environmental Escrow
Agreement and Environmental Escrow Account will continue in full force and
effect until terminated pursuant to the terms of the Environmental Escrow
Agreement.
Please contact counsel for Metaltec, Xxxxxxx X. Xxxx, Esq. (000) 000-0000 and
counsel for XXXX, Xxxxx X. Xxxxxx, Esq. (000) 000-0000 with any questions you
may have regarding these instructions.
INTERNATIONAL UTILITY STRUCTURES INC.
-------------------------------------------------
By:
---------------------------------------------
Title:
------------------------------------------
INTERNATIONAL UTILITY STRUCTURES (LUXEMBOURG) S.A.
-------------------------------------------------
By:
---------------------------------------------
Title:
------------------------------------------
METALTEC HOLDING CORP.
/s/ Van Zandt Xxxx
-------------------------------------------------
By: Van Zandt Xxxx
---------------------------------------------
Title: Chairman of the Board
------------------------------------------
Exhibit "A"
Wire transfer instructions for funds being transferred in the amount of Three
Million Dollars ($3,000,000.00) to Metaltec:
Key Bank
Cleveland, Ohio
Account Holder: Union Metal Corp.
ABA #: 000000000
Account #: 428184024
Exhibit "B"
Wire transfer instructions for funds being transferred in the amount of One
Million Dollars ($1,000,000.00) to Xxxxxx Xxxxxxx Xxxxxx & Xxxxxxx, LLC
Mellon Bank
Private Banking Division
Xxxxxxxxxx, XX 00000
For the Account of Xxxxxx Xxxxxxx Xxxxxx & Xxxxxxx, LLC
ABA #: 000000000
Account #: 162-8334
Exhibit "C"
Wire transfer instructions for funds being transferred to IUSI:
TD Canada Trust
000-0 Xxxxxx XX
Xxxxxxx, XX X0X 0X0
Transit #: 80609
Beneficiary: International Utility Structures Inc.
Account #: 0000000
