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EXHIBIT 10.7
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT ("Settlement Agreement"), effective June 28,
1996, is made and entered into by and between ALTA GOLD CO., a Nevada
corporation ("Alta Gold"), and STARTRONIX INTERNATIONAL, INC., a Delaware
corporation ("StarTronix"), the successor in interest to GOLD EXPRESS
CORPORATION, a Washington corporation ("Gold Express").
RECITALS:
A. Alta Gold and Gold Express previously entered into an Asset Purchase
Agreement ("Purchase Agreement") dated effective June 14, 1994, wherein Alta
Gold purchased from Gold Express certain assets and property referred to in the
Purchase Agreement as the "Copper Flat Property."
B. The purchase price for the Copper Flat Property consisted of (1) cash;
(2) the issuance by Alta Gold of a 6% convertible subordinated debenture in the
principal amount of $1,500,000 due June 14, 1996 (the "1996 Debenture"); (3)
the issuance by Alta Gold of a 6% convertible subordinated debenture in the
principal amount of $1,500,000 due June 14, 1998 (the "1998 Debenture"); (4)
the issuance by Alta Gold of a subordinated Zero Coupon Debenture with a
redemption price of $4,000,000 due fourteen years from the date of closing
("Zero Coupon Debenture"); and (5) the grant of a provisional copper
production royalty, payments pursuant to which would constitute credits against
the Zero Coupon Debenture.
C. Disputes have arisen between StarTronix and Alta Gold in various
contexts, primarily related to the Purchase Agreement, certain representations
and warranties by Gold Express about the Copper Flat Property, and Alta Gold's
withholding of certain payments due under the 1996 and 1998 Debentures based on
claimed rights of offset against the Debentures.
D. In November, 1995, StarTronix, in the name of Gold Express, initiated
an arbitration requesting an adjudication of Alta Gold's right to an adjustment
of the purchase price and corresponding right of offset.
E. Alta Gold answered, denying Gold Express' claim and counterclaimed,
asserting a breach of contract by Gold Express.
AGREEMENT:
Based upon the foregoing, and in consideration of the mutual covenants and
obligations herein, the parties agree to compromise their claims as follows:
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1. 1996 and 1998 Debentures. StarTronix shall surrender to Alta Gold
the 1996 and 1998 Debentures contemporaneously with the execution of this
Settlement Agreement and shall exercise and compromise its conversion rights
under said Debentures as follows:
(a) Stock. Alta Gold shall issue to StarTronix contemporaneously with
the execution of this Settlement Agreement 400,000 shares of Alta Gold common
stock par value $0.001 (the "Shares"). StarTronix specifically agrees that
neither it nor any assignee will sell any of the Shares to the public (pursuant
to Rule 144 or otherwise) prior to January 1, 1997, and thereafter such sales
shall be limited, through and including the month of October, 1997, to not more
than 40,000 shares each month. All such permitted sales, and any other
assignments or dispositions of the Shares, shall be subject to the provisions
of paragraph 6 hereof. The shares will contain a legend to reflect this
agreement.
(b) Warrants. Alta Gold shall issue to StarTronix contemporaneously
with the execution of this Settlement Agreement warrants to purchase up to
400,000 shares of Alta Gold's $0.001 par value common stock ("Warrants"). The
Warrants shall be in the form of Exhibit "A" hereto and may be converted into
common stock of Alta Gold at a cash purchase price of $4.00 per share at any
time prior to five years from the date of this Settlement Agreement.
(c) The foregoing modification and exercise of the conversion rights
under the 1996 and 1998 Debentures, together with the other terms contained in
this Settlement Agreement, constitute a full and final compromise and release
of Alta Gold's rights of offset and the foregoing modification and exercise of
the conversion rights under the 1996 and 1998 Debentures are accepted by
StarTronix in lieu of payment and in full satisfaction and compromise of the
1996 and 1998 Debentures, including any claim for principal and interest under
said Debentures.
2. Zero Coupon Debenture and Royalty Agreement
(a) Amendment. The Zero Coupon Debenture and the Provisional Copper
Production Royalty Agreement dated June 14, 1994 between Alta Gold and Gold
Express ("Royalty Agreement"), which is currently held by StarTronix, shall be
and remain fully binding, valid and payable according to the terms thereof,
except that the Zero Coupon Debenture shall be amended in the form of Exhibit
"B" hereto ("Amended Zero Coupon Debenture"). All provisions of the Zero Coupon
Debenture and the Royalty Agreement which link the Zero Coupon Debenture and
the Royalty Agreement shall remain in full force and effect, including all
provisions which make payment under either one of those instruments a
discharge, to that extent, of payment obligations under the other. As of the
effective date of this Settlement Agreement, Alta Gold shall have no right of
offset or defense of any kind to the performance of the Zero Coupon Debenture
and the Royalty Agreement.
(b) Execution of Amended Zero Coupon Debenture. The Amended Zero
Coupon Debenture, in the form of Exhibit "B", will be executed by Alta Gold
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contemporaneously with the execution of this Settlement Agreement and upon
surrender of the Zero Coupon Debenture.
(c) Assignment of Zero Coupon Debenture. Alta Gold agrees that it
will not reasonably withhold its consent to an assignment of the Amended Zero
Coupon Debenture by StarTronix to a third party (the "Third Party"), subject to
the following: (1) Alta Gold receiving notification of the intended assignment;
(2) Alta Gold, StarTronix and the Third Party agreeing as to balance owing
under the Amended Zero Coupon Debenture, utilizing the procedure set forth in
paragraph 2(d) herein; (3) StarTronix assigning to the Third Party all of its
rights, obligations and duties under said Amended Zero Coupon Debenture and the
Royalty Agreement; and (4) that no further assignment or transfer of the
Amended Zero Coupon Debenture shall be permitted without the further consent of
Alta Gold. All subsequent assignments shall be subject to the provisions of
this Section 2(c).
(d) Accounting Procedure. Payments made under the Royalty
Agreement will be credited as an offset against the Amended Zero Coupon
Debenture. The amounts due and owing under the Amended Zero Coupon Debentures
shall be determined by utilizing the following procedure: Each time a
provisional copper royalty payment is made by Alta Gold, said payment shall be
accompanied by a Statement of Account in the form attached hereto as Exhibit
"C", which shall set forth the amount of said royalty payment as well as the
Maturity Amount owing under the Amended Zero Coupon Debenture (after credit is
given for the accompanying payment) ("Balance Owing"). The Statement of Account
shall be sent by certified mail or similar delivery showing the date of
receipt. If StarTronix (or its assignee) does not give notice to Alta Gold that
it disputes the Balance Owing within 60 days of receipt of the Statement of
Account, said amount shall be deemed to be the amount agreed to by the parties
as due and owing, and StarTronix (or its assignee) will be deemed to have
waived any and all right to dispute said Balance Owing. As of the date of this
Settlement Agreement, no payments have been made under the Royalty Agreement
and the Maturity Amount which remains owing on the Zero Coupon Debenture is
$4,000,000.00.
3. Assumption Agreement. All of Alta Gold's executory obligations under
the terms of the "Assumption Agreement" attached as Exhibit "D" to the Purchase
Agreement shall remain in full effect.
4. Mutual Releases.
(a) Except as otherwise set forth in this Settlement Agreement,
StarTronix on behalf of itself, its agents, successors, predecessors, assigns
and all affiliated or related persons or entities, both past and present,
hereby waive, discharge and release Alta Gold, its agents, successors,
predecessors, assigns and all affiliated or related persons or entities, both
past and present, from any and all liabilities, debts, demands, contracts,
promises, agreements, claims, causes of action, injuries, costs, attorneys'
fees, or damages of any kind or character, both known or unknown, which may now
exist or later be discovered, arising from, related to, or connected with any
and all disputes and relationships between the
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parties including, without limitation, all claims directly or indirectly
related to or arising out of the Purchase Agreement, the 1996 Debenture, the
1998 Debenture, and all matters asserted in or relating in any way to that
certain arbitration entitled Gold Express Corporation v. Alta Gold Co.,
American Arbitration Association File No. 2650-9001-0001.
(b) Except as otherwise set forth in this Settlement Agreement, Alta
Gold, on behalf of itself, its agents, successors, predecessors, assigns and
all affiliated or related persons or entities, both past and present, hereby
waive, discharge and release StarTronix, its agents, successors, predecessors,
assigns and all affiliated or related persons or entities, both past and
present, from any and all liabilities, debts, demands, contracts, promises,
agreements, claims, causes of action, injuries, costs, attorneys' fees, or
damages of any kind or character, both known or unknown, which may now exist or
later be discovered, arising from, related to, or connected with any and all
disputes and relationships between the parties including, without limitation,
all claims directly or indirectly related to or arising out of the Purchase
Agreement, the 1996 Debenture, the 1998 Debenture, and all matters asserted in
or relating in any way to that certain arbitration entitled Gold Express
Corporation v. Alta Gold Co., American Arbitration Association File No.
2650-9001-0001. This release does not extend to: (a) counsel who have issued
those opinion letters attached as Exhibits 1(G), 15, 16 and 17 to the Purchase
Agreement and Alta Gold and StarTronix expressly agree that Alta Gold reserves
any and all rights related to or flowing from said opinion letters or (b) any
Seller or assignor, other than Gold Express or its successors in interest,
from whom Alta Gold acquired, directly or indirectly, any right, title or
interest in assets of any nature whatsoever.
Alta Gold shall defend and indemnify StarTronix, and hold it
harmless, against any and all claims, defenses, liabilities, or expenses
resulting or arising from Alta Gold's reservations of its claims as set forth
in the preceding sentence including, without limitation, any and all claims,
defenses, liabilities, or expenses resulting or arising from any claim, cross
complaint, third party claim, or action, or threats of same, asserted by any
person against whom Alta Gold asserts any claim within the scope of those
claims released by Alta Gold as to StarTronix under this Section 4(b).
(c) Legal Representation. Each party acknowledges the receipt of the
advice of independent legal counsel prior to the execution of this Settlement
Agreement; that the legal nature and effect of this Settlement Agreement has
been fully explained to it by counsel; and that each party fully understands
the terms and provisions of this Settlement Agreement and its nature and
effect. Each party further represents that it is relying solely on the advice
of its own counsel in executing this Settlement Agreement and has not relied on
the representation of any other party, except as expressly set forth herein, or
of the counsel for any other party. Each party further represents that this
Settlement Agreement, and the terms hereof, were arrived at after bargaining
and negotiation among the parties, and each provision hereof shall be
construed as having been drafted by each and all of the parties hereto.
(d) Unknown Damages. There is a risk that subsequent to the
execution of this Settlement Agreement one party will incur damage or loss
which that party deems
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in some way attributable to the prior actions of the other party or parties,
but which are unknown and unanticipated at the time this Settlement Agreement
is signed. Except as may be otherwise set forth in this Settlement Agreement,
each party acknowledges and assumes the risk that damages presently known may
become progressive, greater or more serious than is now known, expected or
anticipated.
(e) Reliance on Known Facts. Each party agrees that if the facts
with respect to this Settlement Agreement are found hereafter to be different
from the facts now believed by such party to be true, that party nevertheless
expressly accepts and assumes the risk of such possible difference in facts and
agrees that this Settlement Agreement is and will remain effective
notwithstanding such difference in facts.
5. Xxxxxxxxxx Acknowledgement. StarTronix will provide to Alta Gold an
acknowledgment in the form of Exhibit "D" attached hereto, executed by X.X.
Xxxxxxxxxx, Inc., acknowledging that the 1996 and 1998 Debentures and the Zero
Coupon Debenture may be surrendered by StarTronix to Alta Gold free and clear
of any and all interest, right or entitlement X.X. Xxxxxxxxxx, Inc. may have,
directly or indirectly, to said Debentures, the interest in the proceeds to be
received thereunder, or any conversion rights or stock to be issued pursuant to
said conversion rights.
6. Restricted Securities. StarTronix acknowledges and agrees that the
Shares, the Warrants, and any shares of Alta Gold common stock that are issued
upon the exercise of the Warrants have not been and will not be registered
under the Securities Act of 1933, as amended ("Act") or the securities laws of
any state, and will constitute "restricted securities" as that term is defined
in the rules and regulations promulgated under the Act, and may not be sold or
otherwise transferred in the absence of (i) an effective registration statement
with respect thereto under the Act or (ii) an opinion of counsel acceptable to
Alta Gold that such registration is not required in connection with the sale or
transfer in question.
7. No Assignment. Each party represents and warrants that there has been
no assignment or other transfer of any claim, said party has or may have, one
against the other.
8. Governing Law.
(a) This Settlement Agreement shall be governed by and interpreted in
accordance with the laws of the State of Nevada without giving effect to any
choice or conflict of law provision or rule (whether of the State of Nevada or
any other jurisdiction) that would cause the application of the laws of any
other jurisdiction other than the State of Nevada.
(b) Although the parties do not intend this Settlement Agreement to
be governed or interpreted by the laws of the State of California to the extent
it is held applicable, each of the parties to this Agreement waives the
benefits of California Civil Code Section 1542 which provides as follows:
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"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 THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT
WITH THE DEBTOR."
9. No Third Party Beneficiaries. This Settlement Agreement shall confer
rights and remedies only upon the parties hereto and their respective
successors and permitted assigns and shall not confer any rights or remedies
upon any other person or entity.
10. Corporate Authority.
(a) Each party has full corporate power and authority to execute and
deliver this Settlement Agreement and to perform its obligations hereunder.
Specifically, StarTronix represents and warrants to Alta Gold that it is the
sole and complete successor in interest to Gold Express and, in such capacity
(i) owns and holds all of the rights and has all of the obligations of Gold
Express under the Purchase Agreement, the 1996 Debenture, the 1998 Debenture,
the Zero Coupon Debenture and the Royalty Agreement and in connection with the
arbitration proceeding referred to in paragraph 4 hereof, and (ii) has the full
legal right and authority to modify, compromise and settle the foregoing, as
contemplated by this Settlement Agreement, in a manner which is valid and
binding as to StarTronix in all respects and for all purposes.
(b) In connection with the execution and delivery of this Settlement
Agreement, each party (the "Delivering Party") will provide the other party
(the "Receiving Party") with all documents and certifications that the
Receiving Party shall reasonably request in regard to the corporate existence
of the Delivering Party and power and authority of the Delivering Party to
execute and deliver this Settlement Agreement, including without limitation (i)
true and complete copies of the Articles of Incorporation of the Delivering
Party, certified by an appropriate governmental official within a reasonable
number of days of the effective date of this Settlement Agreement, (ii) a
certificate of corporate good standing issued by the appropriate governmental
authority and dated within a reasonable number of days of the effective date
hereof; (iii) certified copies of resolutions of the Board of Directors of the
Delivering Party authorizing the execution and delivery of this Settlement
Agreement and the performance by the Delivering Party all of its obligations
hereunder, and (iv) a certificate of the corporate secretary of the Delivering
Party as to the incumbency of the officer executing this Settlement Agreement
on behalf of the Delivering Party.
11. Further Acts. The parties to this Settlement Agreement shall promptly
take such further acts and execute such other documents as shall be necessary
to carry out the spirit and letter of this Settlement Agreement. Without
limiting the generality of the foregoing, in the event any court, county
recorder, secretary of state, or other governmental agency may require any
additional or different documents or actions in order to effect the purposes
contemplated by this Settlement Agreement, the parties to this Settlement
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Agreement shall execute the necessary documents and take the necessary steps to
comply with those requirements.
12. Attorneys' Fees. If any party breaches any obligation under this
Settlement Agreement, the non-breaching party (or the prevailing party in the
event of any litigation or alternate dispute resolution procedure) shall be
entitled to its reasonable expenses, attorneys' fees, and costs incurred in any
action taken, with or without litigation, to enforce, work out, or renegotiate
the terms of this Settlement Agreement, or to remedy or compensate for such
breach.
13. Severability. In the event that any one or more of the provisions of
this Settlement Agreement shall be invalid, illegal, or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not be in any way affected or imposed thereby.
14. Counterparts. This Settlement Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of which
shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have executed this Settlement Agreement
effective as set forth above.
ALTA GOLD CO.
By: /s/ XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx
Its: President
BY AFFIXING MY SIGNATURE HERETO, I
HEREBY ACKNOWLEDGE THAT THE SUBJECT OF
UNKNOWN CLAIMS WAS DISCUSSED WITH
COUNSEL FOR ALTA GOLD, AND THAT I
UNDERSTAND THAT ALTA GOLD IS RELEASING
CLAIMS THAT MAY BE DISCOVERED IN THE
FUTURE WHICH ARISE OUT OF FACTS OR
EVENTS WHICH NOW EXIST OR HAVE
PREVIOUSLY OCCURRED.
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STARTRONIX INTERNATIONAL, INC.
By: /s/ XXXX XXXXXXX
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Its: President
BY AFFIXING MY SIGNATURE HERETO, I
HEREBY ACKNOWLEDGE THAT THE SUBJECT OF
UNKNOWN CLAIMS WAS DISCUSSED WITH
COUNSEL FOR STARTRONIX, AND THAT I
UNDERSTAND THAT STARTRONIX IS RELEASING
CLAIMS THAT MAY BE DISCOVERED IN THE
FUTURE WHICH ARISE OUT OF FACTS OR
EVENTS WHICH NOW EXIST OR HAVE
PREVIOUSLY OCCURRED.
The undersigned counsel for the respective parties have pointed out to and
discussed with their respective clients the fact that the releases given by
their clients under this Settlement Agreement apply to unknown claims, and the
significance thereof.
XXXXX & XXXXXX
By /s/ XXXXXX X. XXXXXXX, XX.
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Xxxxxx X. Xxxxxxx, Xx.
(Counsel for "StarTronix")
XXXXXXX XXXXX & XXXXXXX
By /s/ XXX X. XXXXXXX
---------------------------------
Xxx X. Xxxxxxx
(Counsel for "Alta Gold")
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