SETTLEMENT AGREEMENT
THIS
SETTLEMENT AGREEMENT ("Agreement") is made and entered into as of the 31st
day
of May, 2006, by and between Entrx Corporation (formerly known as Metalclad
Corporation (hereinafter "Metalclad")), on the one hand, and Ventana; Ventana
Environmental Organizational Partnership, L.P.; North America Environmental
Fund, L.P. (hereinafter collectively, “Defendants” or “Ventana”), on the other
hand. Metalclad and Ventana are sometimes hereinafter referred to collectively
as "the Parties" and individually as a "Party."
RECITALS
A. On
or
about November 13, 2000, Metalclad filed a complaint for damages in the Superior
Court for the County of Orange, Case No. 00CC13647, (hereinafter the
"Complaint"), in which several Ventana entities were named as defendants.
Thereafter, the matter was stayed pending an arbitration of the claims in Mexico
per the terms of the October 9, 1999 Stock Purchase Agreement between Metalclad
and Geologic de Mexico, S. A. de C.V. ("Geologic").
B. After
consideration of various factors, including the high cost of protracted
litigation and other economic issues, the parties now consider it to be in
their
best interests to settle their disputes on the terms and conditions set forth
in
this Agreement.
C. Each
party hereto is entering into this Agreement voluntarily and after conferring
with counsel of its choice, without duress and without any promise or assurance
other than as expressly contained in this Agreement.
NOW,
THEREFORE, in consideration of and reliance on the mutual promises, covenants,
and undertakings contained herein, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
1. Defendants
shall pay the combined total sum of One Million Two Hundred Fifty Thousand
Dollars ($1,250,000.00) to Metalclad by certified check made payable to the
Xxxxxxxx, Xxxxx & Bollard Client Trust Account within seven (7) business
days of execution of this Agreement.
2. In
return
for the promises and representations of Defendants contained in this Agreement,
Metalclad shall cause a dismissal with prejudice of the Complaint to be filed
with the Court within five (5) court days of its receipt of the amount described
in Paragraph 1.
3. The
parties expressly acknowledge that time is of the essence in the performance
of
each of the obligations under this Agreement. Each party also agrees that it
will not take any action that would interfere with the performance of this
Agreement by the other party or that would adversely affect any of the rights
provided for herein.
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4. Except
for the parties rights to enforce the terms and provisions of this Agreement,
Metalclad and Ventana, on behalf of themselves and their respective present
and
former shareholders, officers, directors, employees, representatives, attorneys,
agents, successors, assigns, subsidiaries, and divisions, and each and all
of
them, hereby fully, irrevocably and forever waive, release, and discharge each
other and their respective present and former shareholders, officers, directors,
employees, representatives, attorneys, agents, successors, assigns,
subsidiaries, and divisions, and each and all of them, of, from, and against
any
and all claims, demands, debts, liabilities, obligations, expenses, damages,
actions, causes of action, rights of indemnity, liens, and remedies, of every
kind and nature, whether known or unknown, heretofore arising out of, in
connection with, or incidental to any act, omission, transaction, agreement,
dealings, association, matter, or thing, including the claims that either may
have against any the other, including claims that are or could have been
included in the Complaint or in any judicial proceeding (civil or penal) in
Mexico. The parties released by Metalclad pursuant to this Agreement include
Geologic de Mexico, S. A. de C.V. and Xxxxxx Xxxxxxx xx Xxxxx Xxxx.
5. The
parties hereby acknowledge that they have received independent legal advise
from
attorneys of their choice with respect to the advisability of making the
settlement and release provided herein and with respect to the advisability
of
executing this Agreement. The parties also acknowledge that they have had the
opportunity to review this Agreement with legal counsel and that they are
familiar with the provisions of section 1542 of the California Civil Code
("section 1542"), which provides as follows:
A
GENERAL
RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO
EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THIS RELEASE, WHICH IF KNOWN BY
HIM
MUST HAVE MATERIALLY AFFECTED THE SETTLEMENT WITH THE DEBTOR.
Each
of
the parties, being aware of section 1542, hereby expressly waives and
relinquishes any right or benefit that such party has or may have under section
1542 pertaining to the matters released herein, and any law or principle of
similar effect of any state of territory of the United States, to the full
extent that such party may lawfully waive such rights or benefits pertaining
to
the subject matter of this Agreement. In connection with such waiver and
relinquishment, each party acknowledges that it is aware that it may hereafter
discover claims presently unknown or unsuspected, or facts in addition to or
different from those which it or he now knows or believes to be true, with
respect to the matters released herein. Nevertheless, it is the intention of
each party hereto, through this Agreement, fully, finally, and forever to settle
and release all such matters, and all claims relative thereto, which do now
exist, may exist, or heretofore have existed between and among the parties
hereto. In furtherance of such intention, the release herein given shall be,
and
remain in effect as, a full and complete release of such matters notwithstanding
the discovery of the existence of any additional claims or facts relating
thereto.
6. Notwithstanding
the preceding paragraph, nothing herein shall be construed to limit or restrict
the claims Metalclad currently has or may have against the other defendants
named in the Complaint, namely, Xxxxxx Xxxxxx Xxxxxxxx and Promotora Industrial
Xxxxxxx, X.X. de C.V.
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7. Each
party represents, warrants, and covenants that such party has made no assignment
and will make no assignment of any claims, causes of action, rights of action
or
any rights of any kind whatsoever, embodied in any of the claims released under
the terms and provisions of this Agreement.
8. This
Agreement shall bind and inure to the benefit of the parties, the parties'
respective agents, servants, employees, shareholders, successors, assigns,
heirs, executors, administrators, and estates of each of them.
9. The
parties agree that this Agreement is a settlement of disputed claims, and
neither this Agreement nor the furnishing of the consideration for this
Agreement shall constitute or be construed as an admission of liability or
wrongdoing on the part of any party, or be admissible as evidence in any
proceeding other than for enforcement of this Agreement or based on the
inaccuracy of the representations of any party provided for by this Agreement.
10. The
parties agree that the terms of this Agreement are strictly confidential. The
parties agree that they will not disclose the terms of this Agreement to any
third party (with the exception of any applicable taxing or governmental
authorities which require such disclosure or to outside accountants for tax
preparation purposes) without the prior written consent of the other Parties
hereto.
11. Each
of
the undersigned represents and warrants that he or she has the authority to
bind
the entity or persons on behalf of whom he or she is signing to the terms and
obligations of this Agreement, and that to the extent necessary, the execution
and performance of this Agreement has been duly authorized and approved by
its
respective Board of Directors, or other control person/entity.
12. This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original, but all of which taken together shall constitute one and
the
same instrument. The parties may also execute this Agreement, transmitting
the
same by facsimile, in which event a facsimile signature of any one of the
parties shall be treated as an original signature until such time as the
original signature is received by the opposing parties' counsel at the addresses
set forth in paragraph 18 below.
13. The
signature of each of the parties to this Agreement signifies their agreement
and
approval of each and all of the terms of the Agreement, which constitutes the
entire understanding of the parties with respect to the subject matter herein,
and there are no representations, warranties, or promises other than those
contained herein. This Agreement may not be changed, modified, or amended except
by written agreement executed by all parties.
14. In
the
event any part or provision of this Agreement, for any reason, shall be declared
invalid, such decision shall not effect the validity of any remaining portion
of
this Agreement, which remaining portion shall remain in complete force and
effect as if this
Agreement had been executed with the invalid portion thereof eliminated.
15. Each
party to this Agreement shall take any and all action necessary, appropriate
or
advisable to execute and discharge that party's responsibilities and obligations
created by the provisions of this Agreement and further to effectuate and carry
out the intent and purposes of this Agreement and the transactions contemplated
by the provisions of this Agreement.
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16. Each
party to this Agreement will bear its own costs, expenses and attorney's fees
incurred and/or arising out of or in any way connected with the circumstances
in
dispute which are the subject matter of this Agreement
17. The
parties agree that in the event litigation becomes necessary to enforce the
terms of this Agreement, such action shall be filed in the State of California,
County of Orange and the parties hereby agree to submit to the jurisdiction
of
the Superior Court for the State of California for that limited purpose. Should
any party hereto institute an action to enforce any provision hereof or for
damages by reason of any alleged breach of any provision of this Agreement,
the
prevailing party shall be entitled to recover from the non-prevailing party
or
parties all reasonable costs and expenses incurred, plus reasonable attorneys'
fees for services rendered to the prevailing party, in connection therewith.
18. If
any
notice or other document must be delivered or served in connection with this
Agreement, such delivery or service must be made to the parties at the addresses
indicated below unless written notification is given changing the place or
person to whom the notice or other document is to be given:
FOR
Metalclad:
Xxxxxxx
X. Xxxxxxx
Xxxxxxxx,
Xxxxx & Bollard
0
Xxxx
Xxxxx, Xxxxx 000
Xxxxxx,
XX 00000
FOR
Ventana:
Xxxxxxx
X. Xxxxx, Esq.
Xxxxx
& Xxxxxxx LLP
000
Xxxx
Xxxxxxxx, Xxxxx 0000
Xxx
Xxxxx, XX 00000
19. Failure
of any party to require the performance of any term in this Agreement, or the
waiver by any party of any breach thereof, shall not prevent subsequent
enforcement of such term nor be deemed a waiver of any subsequent breach.
20. This
Agreement shall be interpreted and construed in accordance with the laws of
the
State of California without regard to any conflict of laws. The parties further
agree that the provisions of this Agreement shall be interpreted in accordance
with the fair meaning thereof, and not strictly for or against any of the
parties hereto. Both parties have participated in the drafting of this Agreement
which, accordingly, shall not be interpreted against either party.
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IN
WITNESS WHEREOF, the parties voluntarily and freely execute this Agreement
all
as of the date and year first set forth above.
Dated:
5/31/06
Entrx
Corporation (formerly known as Metalclad Corporation)
By:
/s/
Its:
CFO
Dated:
5/26/06
Ventana
Environmental Organizational Partnership,
L.P.
By:
/s/
Its:
Managing Partner
Dated:
5/26/06
North
America Environmental Fund, L.P.
By:
/s/
Its: Managing
Partner
Dated:
5/26/06
Ventana
Global
By:
/s/
Its:
President
(Signatures
Continued on Following Page)
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APPROVED
AS TO FORM AND CONTENT:
Dated:
5/31/06
Attorney
for Metalclad
By:
/s/
Xxxxxxx
X.
Xxxxxxx
Dated: 5/30/06
Attorney
for Ventana
By:
/s/
Xxxxxxx
X. Xxxxx
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