SETTLEMENT AGREEMENT AND
RELEASE OF ALL CLAIMS - 1
SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS
This Settlement Agreement and Release of All Claims ( "Agreement"), is
entered into by, between, and among Xxxxxx Xxxxxxx Xxxxx, Trustee of the
Xxxxxx X. Xxxxxxx 1935-1 Trust (hereinafter the "Trust") and Xxxxxx X. Xxxxxxx
(hereinafter "Xxxxxxx"), and United States Antimony, a Montana corporation
(hereinafter "USAC"), parties in certain litigation captioned Xxxxxx Xxxxxxx
Xxxxx, Trustee of the Xxxxxx X. Xxxxxxx 1935-1 Trust v. United States Antimony
Corporation, Montana Twentieth Judicial District Court, Xxxxxxx County, Cause
No. DV.98-28 and U.S. Antimony Corporation, a Montana corporation vs. Xxxxxx
X. Xxxxxxx, Montana Twentieth Judicial District Court, Xxxxxxx County, Cause
No. DV.98-60 (hereinafter collectively referred to as the "Litigation").
AGREEMENT
In consideration of the mutual covenants, conditions, promises, and other
matters contained in this Agreement, the sufficiency of which as consideration
is acknowledged , the parties agree as follows:
1. Payment.
a. The Trust holds and claims as Owner four (4) USAC debentures
totalling the principal amount $335,000 ($200,000 Debenture dated April 15,
1985; $30,000 Debenture dated May 2, 1998; $20,000 Debenture dated July 12,
1988; and $85,000 Debenture dated November 2, 1988)(hereinafter collectively
referred to as "Debentures"). The Trust also claims interest due and owing on
the Debentures. USAC disputes the amount of either principal or interest, if
any, as being due and payable.
b. The Trust and Xxxxxxx agree to surrender and deliver the
Debentures to USAC. USAC, upon delivery of the Debentures, will issue to the
Trust 790,909 shares of USAC common stock which shall extinguish all
indebtedness claimed owing by the Trust or Xxxxxxx. USAC shall then xxxx the
Debentures as paid in full, and any rights and interest of the Trust and/or
Xxxxxxx in the Debentures shall be extinguished.
2. No Admission of Liability.
All the parties hereto have denied and continue to deny the allegations
of the Actions against the respective parties and enter into this settlement
solely for the purpose of avoiding litigation costs and as a compromise of
disputed claims. Nothing contained in this Agreement, nor the fact of this
settlement, constitutes an admission of liability by any party hereto.
3. Mutual Release Of All Claims
a. In consideration of the payment enumerated in paragraph 1 ,
together with other valuable consideration the adequacy of which is
acknowledged and received, The Trust and USAC, on their behalf, and on behalf
of all their insurers, agents, assigns, contractors, and successors in
interest, do hereby release and forever discharge each other, their
predecessors, subsidiaries, successors, affiliates, shareholders, officers,
directors, and their respective employees, agents, brokers, contractors,
attorneys, insurers, reinsurers, administrators, assigns, and all other
persons, firms, corporations, and any other entity who may be deemed to act,
who have acted, or who may be deemed to act in the future, on behalf of them,
from any and all claims, demands, actions, causes of action, or suits of every
nature whatsoever, and whether on account of past or present liability,
potential future liability arising from either past or present acts or
omissions, whether actual or alleged, for personal injury, property damage,
economic loss and/or impairment or diminution of or other interference with
any other right or amenity protected by law, statute, regulation or in equity,
which liability relates to or arises from any injuries, damages or losses
arising, accruing, or relating to any act, omission, or occurrence of any kind
prior to the date of this Agreement.
b. In consideration of the payment enumerated in paragraph 1 ,
together with other valuable consideration the adequacy of which is
acknowledged and received, Xxxxxxx and USAC, on their behalf, and on behalf of
all their insurers, agents, assigns, contractors, personal representatives,
executors and successors in interest, do hereby release and forever discharge
each other, their predecessors, subsidiaries, successors, affiliates,
shareholders, officers, directors, and their respective employees, agents,
brokers, contractors, attorneys, insurers, reinsurers, administrators,
assigns, and all other persons, firms, corporations, and any other entity who
may be deemed to act, who have acted, or who may be deemed to act in the
future, on behalf of them, from any and all claims, demands, actions, causes
of action, or suits of every nature whatsoever, and whether on account of past
or present liability, potential future liability arising from either past or
present acts or omissions, whether actual or alleged, for personal injury,
property damage, economic loss and/or impairment or diminution of or other
interference with any other right or amenity protected by law, statute,
regulation or in equity, which liability relates to or arises from any
injuries, damages or losses arising, accruing, or relating to any act,
omission, or occurrence of any kind prior to the date of this Agreement.
c. This release includes without limitation all past or present
liability or potential future liability arising or accruing out of any acts or
omissions occurring prior to the date of this Agreement, whether known or
unknown and whether contingent or liquidated.
4. Incorporation of Prior Agreements.
a. Each of the parties hereto have participated in the negotiation
and preparation of this Agreement after consulting with counsel of its
choice. Accordingly, the language of this Agreement shall not be
presumptively construed against any of the parties hereto.
b. This Agreement supersedes all prior agreements, understandings and
discussions among the parties hereto concerning any of the matters contained
herein.
c. No promise, inducement or agreement not herein expressed has been
made to either party by any other party.
d. The parties hereto have read this Agreement in its entirety, have
reviewed it with their counsel, fully understand and acknowledge all of its
terms, and enter into this Agreement voluntarily and with authority to do so.
5. Entire Agreement; Controlling Law.
This Agreement contains the entire agreement between the parties and the
terms contained herein are contractual and not a mere recital. To the extent
construction or interpretation becomes necessary, the Agreement shall be
construed in accordance with Montana law. To the extent that this Agreement,
or any part thereof, may be inconsistent with Montana law currently existing
or that in the future, that the parties nonetheless intend to confirm their
agreement notwithstanding any contrary existing Montana law, contrary law of
any other jurisdiction, or any subsequent changes in applicable or potentially
applicable law.
6. Successors in Interest.
This Agreement shall inure to the benefit of and shall be binding upon
the parties' respective successors, heirs and assigns.
7. Directorship.
For five years from the date hereof, the Trust and Xxxxxxx covenant not
to nominate any person to serve on the board of directors of USAC, and Xxxxxxx
and the Trustee agree not to serve on the Board of Directors.
8. Option to Purchase USAC Common Stock.
a. The Trust grants USAC an irrevocable option to purchase all USAC,
but not less than all, common stock now owned or hereafter acquired by the
Trust. The option shall commence upon the issuance of the stock referred to
in Section 1 and terminate five (5) years from the issue date or fifteen (15)
days after the tender of the debentures to USAC.
x. Xxxxxxx grants USAC an irrevocable option to purchase all, but not
less than all, USAC common stock now owned or hereafter acquired by Xxxxxxx.
The option shall commence upon the issuance of the stock referred to in
Section 1 and terminate five (5) years from the issue date or fifteen (15)
days after the tender of debentures to USAC.
c. The purchase price for the option common stock shall be the
greater of the highest daily closing bid in sixty (60) days preceding written
notice of the exercise of the option by USAC or $.0.55 per share of common
stock--(Option Price).
d. In the event either Xxxxxxx or the Trust elect to sell any USAC
common stock during the option period, Xxxxxxx or the Trust shall provide not
less than thirty (30) days prior written notice, certified mail, to USAC
before any such sale. USAC shall have the right in the event of such a sale
by either Xxxxxxx or the Trust to exercise its option pursuant to Section 8 as
to such stock offered by either Xxxxxxx or the Trust for sale. USAC shall
have elected to exercise its option pursuant to paragraph 8 as to such stock
offered by either the Trust or Xxxxxxx for sale if written notice, by
certified mail, of such election is provided by USAC within twenty (20) days
after notice is sent by certified mail of Xxxxxxx'x or the Trust's notice to
sell USAC stock. Notice shall be deemed to be given by USAC on the date such
notice is sent by certified mail to Trust or Xxxxxxx, return receipt
requested. Such notice shall be provided to the party identified in paragraph
13.
e. In the event USAC exercises its option pursuant to this Section 8,
USAC will provide an opinion letter by counsel relating to compliance with SEC
Rule 144 at USAC's expense opining that the sale of USAC securities by Trust
or Xxxxxxx complies with all requirements of SEC Rule 144 and is exempt from
registration under federal and state securities laws.
9. Return of Depositions
a. USAC and its counsel will return depositions, deposition exhibits,
and deposition video tapes in their possession to Xxxxx Xxxxx, Esq.
b. USAC represents that it has not copied the deposition video tapes.
10. Approval and Acceptance of Terms by Parties.
a. This Agreement is hereby approved by both parties as to form and
content, and both parties agree to be bound by all of the terms hereof.
b. The Trust represents that its Trustee, Xxxxxx Xxxxx, is empowered
pursuant to the statutes of the State of Connecticut to execute and bind the
Trust in the performance of this Agreement.
c. USAC represents that its board of directors has authorized its
president to execute and bind USAC in the performance of this Agreement.
x. Xxxxxxx and the Trust represent that each has been independently
advised by counsel of their own choice concerning the nature and content of
this Agreement and the legal consequences of executing this Agreement. After
being advised by counsel of their choice, Xxxxxxx and the Trust have
voluntarily, without duress of any kind, executed this Agreement knowing that
it is a legally enforceable contract.
11. Additional Documents.
The parties agree to execute such additional documentation as is or may
become necessary to fully effectuate the terms, conditions, and provisions of
this Agreement including a stipulation for and an order dismissing the Trust
and Xxxxxxx with prejudice.
12. No Modification.
No change, amendment, or modification of this Agreement is valid unless
it is made in writing and signed by the parties.
13. Notices.
Unless other persons are designated in writing for receipt of notices
hereunder, notices to the respective parties shall be in writing and shall be
sent to the following persons:
Trust and Xxxxxxx: Xxxxxx Xxxxxxx Xxxxx
Meneo & Goldfield
000 Xxxxxx Xx. #0000
Xxx Xxxxx, XX 00000-0000
Telephone: (000) 000-0000
FAX: (000) 000-0000
USAC: Xxxx X. Xxxxxxx
Xxxxxx Xxxxxxx Xxxxx & Xxxxxx LLP
X.X. Xxx 0000
Xxxxx, Xxxxx 00000
Telephone: (000) 000-0000
FAX: (000) 000-0000
14. Attorney Fees.
In the event any suit, action or other proceeding arises under the terms
of this Agreement, or in connection with this or any of the provisions of this
Agreement, the prevailing party shall be entitled to recover reasonable
attorney fees and other costs incurred in that action.
15. Facsimile and Counterparts.
This Agreement will be initially executed respectively by the parties by
a facsimile document and exchanged between them for signature. Three (3)
original counterpart agreements will then be circulated among the parties for
execution with each party to retain one (1) fully executed original
counterpart. The parties agree that execution of the facsimile documents by
the respective parties shall make this Agreement fully enforceable and
effective. The original counterpart documents when fully executed shall be
the controlling documents as to this settlement between the parties.
DATED this ____ day of __________________, 1999.
UNITED STATES ANTIMONY CORPORATION
/s/ Xxxx X. Xxxxxxxx
President
X. X. XXXXXXX 1935-1 TRUST
By _/s/ Xxxxxx Xxxxxxx Xxxxx
Xxxxxx Xxxxxxx Xxxxx, Trustee
/s/Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
(STATE OF MONTANA )
County of Xxxxxxx )
On this _____ day of __________, 1999, before me,
________________________, a Notary Public in and for said State, personally
appeared _______________, known or identified to me to be the
__________________ of United States Antimony Corporation, the corporation that
executed the within instrument or the person who executed the instrument on
behalf of said corporation, and acknowledged to me that such corporation
executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
___________________________________________________
Notary Public for Montana
Residing at
_________________________________________
My commission expires
_______________________________
STATE OF CONNECTICUT )
) ss.
County of ______________ )
On this ______ day of ______________, 1999, before me,
_____________________, a Notary Public in and for the State of Connecticut,
personally appeared ________________ and _________________________, known or
identified to me to be the persons whose names are subscribed to the within
instrument as trustees of X.X. Xxxxxxx 1935-1 Trust dated ______________, and
acknowledged to me that they executed the same as such trustees of The
________________ Trust dated ________________.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
___________________________________________________
Notary Public for Connecticut
Residing at
_________________________________________
My commission expires on
____________________________
STATE OF VIRGINIA )
) ss.
County of __________ )
On this _____ day of __________, 1999, before me,
_________________________, a Notary Public in and for said State, personally
appeared Xxxxxx X. Xxxxxxx, known or identified to me to be the person whose
name is subscribed to the foregoing instrument, and acknowledged to me that he
executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
___________________________________________________
Notary Public for Virginia
Residing at
_________________________________________
My commission expires
_______________________________
