SETTLEMENT AND RELEASE AGREEMENT

Exhibit 10.1

SETTLEMENT AND RELEASE AGREEMENT

This SETTLEMENT AND RELEASE AGREEMENT (this “Agreement”), is entered into as of February 12, 2013, by and between PERMA-FIX ENVIRONMENTAL SERVICES, INC., a Delaware corporation (“PESI”), and SAFETY & ECOLOGY HOLDINGS CORPORATION, a Nevada corporation (“SEC” and, together with PESI, the “PESI Parties”), on the one hand, and TIMIOS NATIONAL CORPORATION, a Delaware corporation (formerly known as Homeland Security Capital Corporation, “TNC”), on the other hand.  The PESI Parties and TNC are hereinafter collectively referred to as the “Parties.”

WHEREAS, the Parties entered into that certain Stock Purchase Agreement dated as of July 15, 2011 (the “Purchase Agreement”), for the sale by TNC and the purchase by PESI of all of the capital stock of SEC (the “SEC Stock”).  Capitalized words used and not otherwise defined herein shall have the meanings ascribed to them in the Purchase Agreement.

WHEREAS, as part of the Purchase Price paid for the SEC Stock, PESI issued to TNC a three year, non-negotiable, unsecured promissory note to the order of TNC in the principal amount of $2,500,000 (the “October Note”).

WHEREAS, as a result of payments made under the October Note, the outstanding unpaid principal balance and accrued interest due thereunder as of the date hereof is equal to $1,459,547.50.

WHEREAS, in connection with the Purchase Agreement, PESI, TNC and the Escrow Agent entered into that certain Escrow Agreement dated as of October 31, 2011 (the “Escrow Agreement”), pursuant to which PESI deposited $2,000,000 of the Cash Consideration into an account with the Escrow Agent (the “Escrow Account”) to be held and administered pursuant to the terms of the Escrow Agreement.

WHEREAS, pursuant to the terms of the Purchase Agreement and the Escrow Agreement, the Escrow Agent has previously delivered to PESI from the Escrow Account the sum of $1,500,000, leaving a principal balance of $500,000 therein, plus accrued interest, as of the date hereof (the “Escrow Balance”).

WHEREAS, certain additional disputes have arisen between the Parties under the Purchase Agreement for which PESI seeks indemnification pursuant to the Purchase Agreement, in particular, (i) PESI’s claim of breach of certain representations and warranties of TNC and SEC relating to a certain contract with X. X. Xxxxx and Co., identified as Xxxxxx Bay Xxxx. 00 (the “X.X. Xxxxx Contract”); and (ii) PESI’s claim of breach of the covenant of TNC and SEC, set forth in Section 5.20 of the Purchase Agreement, that the GAAP Liabilities (as defined in the Purchase Agreement) of SEC and its subsidiaries, on a consolidated basis, would not exceed $15,000,000 as of the Closing (together with the dispute described in clause (i) hereof relating to the X.X. Xxxxx Contract, the “Disputed Claims”).

WHEREAS, notwithstanding any other provision in the Purchase Agreement, the October Note and the Escrow Agreement to the contrary, the Parties desire to settle the Disputed Claims and,

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additionally, settle and release any other Claims (as defined below) arising under the Purchase Agreement with respect to a claimed breach of (i) the representations and warranties contained in Article II and Article IV of the Purchase Agreement, and (ii) the covenants contained in Article V of the Purchase Agreement (except for Sections 5.13, 5.14, 5.15, 5.16, 5.17 and 5.18 of the Purchase Agreement, the obligations under which are expressly agreed by the Parties to continue in full force and effect in accordance with the terms of the Purchase Agreement (the “Continuing Covenants”)) (the matters described in clauses (i) and (ii), other than the Continuing Covenants, are, together with the Disputed Claims, collectively referred to herein as the “Subject Claims”), as follows:  (a) TNC shall immediately cancel, terminate and deliver to PESI the October Note and PESI shall issue the New Note (as defined herein) to TNC in replacement of the October Note, (b) the Escrow Balance shall be released to TNC, (c) the Parties shall terminate irrevocably all of their rights and obligations with respect to (x) the indemnification provisions set forth in Article VIII of the Purchase Agreement (the “Indemnification Provisions,” except with respect to the Continuing Covenants, for which the Indemnification Provisions are expressly agreed by the Parties to continue in full force and effect in accordance with the terms of the Purchase Agreement and (y) the matters described in Section 9.3 of the Purchase Agreement, and (d) the Parties shall release each other from all liabilities in respect of the Subject Claims, all with immediate effect, as more specifically and on the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the premises and the mutual agreements hereinafter set forth, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

1. Settlement of Claims.  As full and final settlement of the Subject Claims, the Parties shall undertake the following transactions, all such transactions to be mutually conditioned upon the completion of such other transaction:

(a) TNC does hereby terminate, and render null and void, the October Note, and PESI hereby agrees to issue a new two-year, non-negotiable, unsecured note in the principal amount of TWO HUNDRED TWENTY NINE THOUSAND SEVEN HUNDRED SEVENTY-THREE DOLLARS AND 75/100 CENTS ($229,773.75) in substantially the form of Exhibit A hereto (the “New Note”).

(b) TNC shall immediately deliver to PESI, at PESI’s corporate office located at 0000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX  00000, the original October Note and any and all copies thereof.

(c) TNC and PESI hereby agree to execute the instruction letter to the Escrow Agent, in substantially the form of Exhibit B hereto, releasing the entire Escrow Balance to TNC.

(d) By their execution of this Agreement, each of the PESI Parties and TNC hereby acknowledges and agrees that, effective as of the date hereof, the Indemnification Provisions are irrevocably terminated and of no further force or effect, except with respect to the Continuing Covenants, for which the Indemnification Provisions are expressly agreed by the Parties to continue in full force and effect in accordance with the terms of the Purchase Agreement.

(e) By their execution of this Agreement, each of the PESI Parties and TNC hereby acknowledges and agrees that, effective as of the date hereof, the representations and warranties contained in Article II and Article IV of the Purchase Agreement, (ii) the covenants contained in Article V of the Purchase Agreement (except for the Continuing Covenants, the obligations under which are expressly agreed by the Parties to continue in full force and effect in accordance with the terms of the Purchase Agreement), and (iii) the provisions of Section 9.3 of the Purchase Agreement are irrevocably terminated and of no further force or effect.

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2. Continuation of Purchase Agreement.  Except as expressly amended by this Agreement, the Purchase Agreement shall remain in full force and effect in accordance with its terms.

3. Mutual Releases.

(a) Certain Definitions.  As used herein, the following terms shall have the following meanings:

“Associated Party” means, with respect to any specified Person, to the extent applicable, such Person’s (i) predecessors, successors, executors, administrators, trusts, spouse, heirs and estate, (ii) past, present and future assigns, agents and representatives, (iii) each entity that such Person has the power to bind (by such Person’s acts or signature) or over which such Person directly or indirectly exercises control and (iv) each entity of which such Person owns, directly or indirectly, a majority of the outstanding equity, beneficial, proprietary, ownership or voting interests.

“Claims” mean and include any and all agreements, causes of action, claims, commitments, contracts, controversies, covenants, indebtedness, debts, damages, demands, disputes, obligations, liabilities, rights and suits of every kind and nature, whether in law or equity, whether known or unknown, matured or unmatured, accrued or unaccrued, liquidated or unliquidated, asserted or unasserted, fixed or contingent, and whether sounding in contract, statute, tort, fraud, misrepresentation or other legal theory.

“PESI Releasee” means PESI, SEC, each of SEC’s and PESI’s respective present and former directors, officers, employees, stockholders, agents and representatives, and the respective affiliates (including subsidiaries), successors and assigns of each of the foregoing.

“TNC Releasee” means TNC, TNC’s present and former directors, managers, officers, employees, members, agents and representatives, and the respective affiliates (including subsidiaries), successors and assigns of each of the foregoing; provided, however, such term does not include Xxxxxxxxxxx X. Xxxxxxxxxx (“Xxxxxxxxxx”).

“Released Claims” means, (i) with respect to Section 3(b) below, Claims which TNC and/or any of its Associated Parties has had or claims to have had, now has or claims to have, or may in the future have against any PESI Releasee by reason of any matter, cause or thing whatsoever arising from, connected with, or in any way relating to or resulting from the Subject Claims; and (ii) with respect to Section 3(c), Claims which PESI, SEC and/or any of their respective Associated Parties has had or claims to have had, now has or claims to have, or may in the future have against any TNC Releasee by reason of any matter, cause or thing whatsoever arising from, connected with, or in any way relating to or resulting from the Subject Claims; provided, however, that the foregoing release  shall not apply to, and shall not relieve any party hereto from, its obligations under this Agreement, the New Note and the Purchase Agreement (but only with respect to the Continuing Covenants).

(b) Release by TNC.  Effective as of the date hereof, TNC, on behalf of itself and each of its Associated Parties:

(i) releases and forever discharges each PESI Releasee of and from each Released Claim;

(ii) waives the benefits of, and any rights arising under, any statute or common law principle that would provide that the foregoing release does not extend to claims that TNC does not know or suspect to exist at the time of executing this Agreement;

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(iii) represents and warrants that, (A) neither TNC nor any of its Associated Parties has assigned, transferred, or purported to assign or transfer, to any Person any Released Claim, its interest in the October Note or the Escrow Agreement, except for YA Global Investments, L.P. (“YA”), who has consented to the terms of this Agreement and the transactions contemplated hereby and shall release its security interest in the October Note and Escrow Agreement as a condition to this Agreement, (B) to TNC’s best knowledge, no other Person or entity has any interest in any of the Released Claims, the October Note or the Escrow Agreement, other than the Management Investors (as such term is defined in the Purchase Agreement) and YA, whose waivers and releases therein are a condition to this Agreement, (C) this Agreement has been duly and validly executed and delivered by TNC, (D) this Agreement is a valid and binding obligation of TNC, and is enforceable against TNC in accordance with its terms, and (E) no authorization, instruction, consent or approval of any Person is required to be obtained by TNC in connection with the execution and delivery of this Agreement or the performance hereof (other than (1) the consent and approval of the board of directors or similar body of TNC, and (2) any waivers and releases from the Management Investors required in connection with the consummation of this Agreement, with respect to any claim of right or interest by such persons in the Escrow Agreement and the Promissory Note that are afforded such persons by reason of that certain Exchange Agreement dated as of October 31, 2011 (the “Exchange Agreement”), which consents, approvals, waivers and releases have been obtained); and

(iv) irrevocably covenants to refrain from asserting any claim or demand, or commencing, instituting or causing to be commenced, any proceeding of any kind against any PESI Releasee based upon any Released Claim, it being understood that if TNC brings any claim, suit, or action against any PESI Releasee in administrative proceedings, in arbitration or admiralty, at law, in equity, or mixed, with respect to any Released Claim, then TNC shall indemnify such PESI Releasee in the amount of any final non-appealable judgment rendered by a court of competent jurisdiction or settlement, and any related cost (including, without limitation, reasonable legal fees), entered against, paid or incurred by the PESI Releasee as a result of such proceeding.

(c) Release by PESI and SEC.  Effective as of the date hereof, each of PESI and SEC, on behalf of itself and each of their respective Associated Parties:

(i) releases and forever discharges each TNC Releasee of and from each Released Claim;

(ii) waives the benefits of, and any rights arising under, any statute or common law principle that would provide that the foregoing release does not extend to claims that PESI or SEC does not know or suspect to exist at the time of executing this Agreement;

(iii) represents and warrants that  (A) neither PESI, SEC nor any of their respective Associated Parties has assigned, transferred, or purported to assign or transfer, to any Person any Released Claim, its interest in the October Note or the Escrow Agreement, (B) to each of SEC’s and PESI’s best knowledge, no other Person or entity has any interest in any of the Released Claims, the October Note or the Escrow Agreement, other than the Management Investors, whose waivers and releases therein are a condition to this Agreement, (C) this Agreement has been duly and validly executed and delivered by each of PESI and SEC, (D) this Agreement is a valid and binding obligation of each of PESI and SEC, and is enforceable against each of PESI and SEC in accordance with its terms, and (v) no authorization, instruction, consent or approval of any Person is required to be obtained by PESI or SEC in connection with the execution and delivery of this Agreement or the performance hereof (other than the consent and approval of the Board of Directors of PESI and SEC, which consents and approvals have been obtained); and

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(iv) irrevocably covenants to refrain from asserting any claim or demand, or commencing, instituting or causing to be commenced, any proceeding of any kind against any TNC Releasee based upon any Released Claim, it being understood that if PESI or SEC brings any claim, suit, or action against any TNC Releasee in administrative proceedings, in arbitration or admiralty, at law, in equity, or mixed, with respect to any Released Claim, then PESI and/or SEC, as the case may be, shall indemnify such TNC Releasee in the amount of any final non-appealable judgment by a court of competent jurisdiction or settlement, and any related cost (including without limitation reasonable legal fees), entered against, paid or incurred by the TNC Releasee as a result of such proceeding.

4. Miscellaneous.

(a) Entire Agreement.  This Agreement states the entire agreement of the Parties concerning the subject matter hereof, and supersedes all prior agreements, written or oral, between or among them concerning such subject matter.

(b) Amendments; Waivers.  This Agreement may be amended only by the written agreement of each of the Parties, and compliance with any provision of this Agreement may be waived only by the written agreement of the party that is adversely affected by such waiver.

(c) Successors and Assigns.  This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors, heirs, personal representatives, legal representatives, and permitted assigns.  No Party hereto shall assign or otherwise transfer this Agreement or any of its rights hereunder, or delegate any of its obligations hereunder, without the prior written consent of the other Parties.

(d) Severability.  If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, in any jurisdiction, such term or provision shall be ineffective to the extent of such invalidity or unenforceability, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such term or provision in any other jurisdiction.

(e) Further Assurances.  The Parties hereto agree to use their respective reasonable best efforts to take, or cause to be taken, all action and to do, or cause to be done, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement.

(f) Governing Law; Venue; Waiver of Jury Trial. This Agreement shall be governed by the laws of the State of Delaware without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause application of the laws of any jurisdiction other than the State of Delaware.  Each of the Parties irrevocably submits to the exclusive jurisdiction of the Delaware Court of Chancery for the purpose of any action arising out of or relating to this Agreement.  Each of the Parties to this Agreement agrees that a final judgment in such jurisdiction in any action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable law.  Each of the Parties waives any right to trial by jury with respect to any action related to or arising out of this Agreement or any transaction contemplated hereby.

(g) Counterparts. This Agreement may be executed in two or more counterparts, any one of which need not contain the signatures of all Parties, but all of which counterparts when taken together will constitute one and the same agreement.  Facsimile signatures and pdf copies of signature

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pages, shall constitute original signatures for all purposes of this Agreement.  This Agreement shall become effective when each Party shall have received a counterpart hereof signed by the other Parties.

(h) Representation by Counsel; Costs, Expenses and Attorneys’ Fees.  Each Party acknowledges that it has been advised by legal and any other counsel retained by such Party in its sole discretion.  Each Party acknowledges that such Party has had a full opportunity to review this Agreement and to negotiate this Agreement in its sole discretion, without any undue influence by any other Party or any third party.  Each Party has made its own independent investigation of the facts and law pertaining to this settlement and this Agreement, and of all matters related thereto, to the full extent such Party deems necessary or advisable.  Each Party shall bear its or his own costs, expenses and attorneys’ fees incurred in connection with the matters covered by this Agreement.

(i) Construction.  The Parties have participated jointly in the negotiations and drafting of this Agreement and in the event of any ambiguity or question of intent or interpretation, no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement.

(j) Headings.  The headings of the various sections of this Agreement have been inserted for convenience of reference only and shall not be deemed to be a part of this Agreement.

(k) Nouns and Pronouns.  Whenever the context may require, any pronouns used herein shall include the corresponding masculine, feminine or neuter forms, and the singular form of names and pronouns shall include the plural and vice-versa.

(l) No Waivers.  No waiver by any Party, whether express or implied, of its rights under any provision of this Agreement shall constitute a waiver of the Party’s rights under such provisions at any other time or a waiver of the Party’s rights under any other provision of this Agreement.  No failure by any party to take any action against any breach of this Agreement or default by another Party shall constitute a waiver of the former Party’s right to enforce any provision of this Agreement or to take action against such breach or default or any subsequent breach or default by the other Party.

(Remainder of this page left intentionally blank. Signature page(s) to follow.)

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NOW, THEREFORE, the Parties have executed this Settlement and Release Agreement as of the date first written above.

	PERMA-FIX ENVIRONMENTAL SERVICES, INC.
	By:	/s/ Xxxxx X. Xxxxxxxxxx
		Xxxxx X. Xxxxxxxxxx, President
	TIMIOS NATIONAL CORPORATION
	By:	/s/ C. Xxxxxx XxXxxxxx
		C. Xxxxxx XxXxxxxx, Chief Executive Officer
	SAFETY & ECOLOGY HOLDINGS CORPORATION
	By:	/s/ Xxxxx X. Xxxxxxxxxx
		Xxxxx X. Xxxxxxxxxx, Chairman of the Board

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