GENERAL RELEASE
EXHIBIT DD
This General Release (“General Release”) is being executed and delivered on May 27, 2008 to be
effective as of December 31, 2007, by and among AmerAlia, Inc., a Utah corporation (“AmerAlia”),
Natural Soda Holdings, Inc., a Colorado corporation (“NSHI”), Natural Soda, Inc., a Colorado
corporation (“NSI”), Xxxxxx xxx Xxxxxx (“xxx Xxxxxx”), and Xxxx X. Xxxx (“Xxxx”)(AmerAlia, NSHI,
NSI, van Mourik and Xxxx are referred to herein as the “AmerAlia Parties”) and is for the benefit
of Sentient Global Resources Fund I, LP (“Fund I”), Sentient Global Resource Trust No. I (“Trust
I”), Sentient USA Resources Fund, L.P. (“Sentient LP ”), Sentient USA Resources Fund II, L.P.
(“Sentient II LP”) (Sentient LP, Trust I, Fund I, and Sentient II LP are referred to herein as the
“Sentient Parties”).
Recitals
WHEREAS, Sentient LP’s predecessors in interest (Fund I and Trust I) purchased several million
dollars worth of secured debentures from NSHI, the payment of which was guaranteed by NSI;
WHEREAS, Sentient LP has converted some of the secured debentures into 53.5% of the capital stock
of NSI;
WHEREAS, Sentient II LP has acquired from the Xxxxxxxxxx Badgers Mars Trust, shares of AmerAlia and
several unsecured promissory notes or debentures issued by AmerAlia and/or NSHI;
WHEREAS, Sentient LP and Sentient II LP have had discussions with AmerAlia, NSHI and NSI concerning
a restructuring of all the secured and unsecured debt owed by AmerAlia and NSHI and the equity of
NSI owned by Sentient LP and Sentient II LP, but the inability of AmerAlia to complete the audits
of its books for the prior two fiscal year and to make filings required by the United States
Securities and Exchange Commission have prevented those discussions from proceeding;
WHEREAS, AmerAlia and NSI have asked Sentient LP to provide NSI with additional funds so that it
can increase its working capital and Sentient LP is willing to purchase the Secured Series A 10%
Debentures Due September 30, 2005 together with interest thereon owned by NSI, pursuant to the
terms of a Debenture Purchase Agreement (the “Purchase Agreement”);
WHEREAS, Sentient LP does not want to close the Purchase Agreement and then find out that one or
more of the AmerAlia parties has claims he or it believes can be asserted against Sentient LP or
any of its affiliates and has agreed to close the Purchase Agreement only if this General Release
is executed and delivered;
WHEREAS, van Mourik and Xxxx have a substantial financial interest in having AmerAlia survive as
each claims he is owed substantial amounts by AmerAlia, each owns stock of AmerAlia, and each
claims to have options to acquire additional shares of stock of AmerAlia and each will indirectly
benefit from the closing of the Purchase Agreement;
WHEREAS, the AmerAlia Parties intend to waive and release all claims they or any of them has
against the Sentient Parties and the AmerAlia Parties; and
WHEREAS, notwithstanding the provisions of the preceding Recital, the parties to this General
Release do not intend to release any of the Retained Rights (defined below).
General Release — Purchase Agreement
Agreement
In consideration of the recitals, the covenants contained herein and in the Purchase Agreement, and
for other valuable consideration (the receipt and sufficiency of which are hereby acknowledged by
the parties), the parties hereby covenant and agree as follows:
1. Releases; Retained Rights.
(a) Except for the Retained Rights, the AmerAlia Parties for themselves and each person
under AmerAlia Parties’ direct or indirect control, hereby generally, irrevocably,
unconditionally and completely release and forever discharge each of the Sentient Parties
and each of their Associated Parties (specifically including, but not limited to, Xxxxx
Xxxxxxx, Xxxx Xxxxxxx, Sentient Resources USA, Inc., and Sentient Asset Management USA,
Inc.) from, and the AmerAlia Parties hereby irrevocably, unconditionally and completely
waives and relinquishes, each of the Released Claims.
(b) Except for the Retained Rights, van Mourik and Xxxx for themselves and each person
under the each of their direct or indirect control, hereby generally, irrevocably,
unconditionally and completely release and forever discharge each of AmerAlia, NSHI and NSI
and each of their Associated Parties from, and van Mourik and Xxxx hereby irrevocably,
unconditionally and completely waives and relinquishes, each of the Released Claims.
(c) AmerAlia, NSHI, NSI, van Mourik and Xxxx each generally, irrevocably,
unconditionally and completely release, waive, and relinquish any and all rights of
contribution, exoneration or any other similar right or claim to cause AmerAlia, NSHI, or
NSI to pay or reimburse any amounts owed by AmerAlia, NSHI, NSI, van Mourik or Xxxx to any
of the Sentient Parties or any of their Associated Parties as a result of this Release.
(d) Nothing in this General Release, including the releases set forth in Sections 1(a),
1(b) and 1(c) above, is intended to or shall be construed as a release, acquittal,
discharge, covenant not to xxx or indemnity of any and all claims related to or arising from
the Retained Rights.
2. Definitions.
(a) The term “Associated Parties” when used herein shall mean and include: (i) the named
party’s predecessors, successors, executors, administrators, heirs and estate; (ii) the named
party’s past, present and future assigns, shareholders, direct and indirect parents, subsidiaries
and affiliates, and all of their officers, directors, attorneys or legal representatives, agents
and representatives; (iii) each entity that the named party has the power to bind (by the named
party’s acts or signature) or over which the named party directly or indirectly exercises control;
and (iv) each entity of which the named party owns, directly or indirectly, at least 50% of the
outstanding equity, beneficial, proprietary, ownership or voting interests.
(b) The term “Claims” shall mean and include all past, present and future disputes, claims,
controversies, demands, rights, rights to appeal, liens, allegations, obligations, liabilities,
actions and causes of action of every kind and nature (whether in law or equity), including: (i)
any unknown, unsuspected or undisclosed claim; (ii) any claim or right that may be asserted or
exercised by a Releasor in
Releasor’s capacity as a stockholder, director, officer or employee or in any other capacity;
and (iii) any claim, counterclaim, right or cause of action based upon any breach of any express,
implied, oral or written contract or agreement.
(c) The term “Releasee” means each party named in Section 1 as being generally, irrevocably,
unconditionally and completely released and forever discharged.
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(d) The term “Released Claims” shall mean and include each and every Claim that (i) Releasor
or any person under the direct or indirect control of the Releasor may have had in the past, may
now have or may have in the future against any of the Releasees or any Associated Party of the
Releasee, and (ii) has arisen or arises directly or indirectly out of, or relates directly or
indirectly to, any circumstance, agreement, activity, action, omission, event or matter occurring
or existing on or prior to the date of this General Release. Notwithstanding the breadth of the
definition of Claims and Released Claims, the parties do not intend to include any of the Retained
Rights as part of the Released Claims.
(e) The term “Releasor” means each party named in Section 1 as generally, irrevocably,
unconditionally and completely releasing and forever discharging one or more Releasees.
(f) The term “Retained Rights” shall mean and include: (i) any rights or obligations arising
under this General Release, (ii) any rights or obligations arising under the Purchase Agreement,
(iii) rights under the Collateral Holding and Liquidation Agreement, (iv) rights under the
Securityholders Agreement (v) rights of indemnification under AmerAlia’s, NSHI’s and NSI’s charter
documents and (vi) rights under the stock options and written obligations reflected on the
financial statements of AmerAlia, NSHI and NSI which have been delivered to the Sentient Parties
prior to the execution and delivery of this Release (e.g., rights as holders of debentures, notes,
stock options and accrued but unpaid compensation). The parties have agreed that if Sentient or
any of its affiliates pursues any claim against one or more of the AmerAlia Parties then this
release shall not be enforceable against the person against which the claim is filed; excluding any
claim to protect, foreclose, acquire possession of, or otherwise realize the benefits of any
collateral for any obligations owed to any Sentient Party or its predecessor in interest and any
party for whom a Sentient Party acts as a collateral or disbursing agent.
3. Representations and Warranties. Each Releasor represents and warrants
that:
(a) No promise, representation, inducement, or agreement that is not expressed in this General
Release has been made to any of the Releasors; none of the Releasors is relying on any promise,
representation, inducement, or agreement in entering into this General Release except as expressly
set forth in this General Release; and each of the Releasors has consulted with counsel of its own
choosing prior to entering into this General Release and knowingly and freely enters this General
Release without duress;
(b) Releasor has not assigned, transferred, conveyed or otherwise disposed of any of its
Released Claims against any of the Releasees, or any direct or indirect interest in any such
Released Claims, in whole or in part;
(c) to the best of the Releasor’s knowledge, no other person or entity has any interest in any
of its Released Claims;
(d) no person under the direct or indirect control of Releasor has or had any Claim against
any of its Releasees or their Associated Parties;
(e) no person under the direct or indirect control of Releasor will in the future have any
Claim against its Releasees or their Associated Parties that arises directly or indirectly from or
relates directly or indirectly to any circumstance, agreement, activity, action, omission, event or
matter occurring or existing on or before the date of this General Release;
(f) this General Release has been duly and validly executed and delivered by Releasor;
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(g) this General Release is a valid and binding obligation of the Releasor and persons under
its direct or indirect control, and is enforceable against Releasor and each person under the
Releasor’s control in accordance with its terms;
(h) there is no action, suit, proceeding, dispute, litigation, claim, complaint or
investigation by or before any court, tribunal, governmental body, governmental agency or
arbitrator pending or, to the best of the knowledge of Releasor, threatened against Releasor or any
person under Releasor’s direct or indirect control that challenges or would challenge the execution
and delivery of this General Release or the taking of any of the actions required to be taken by
Releasor under this General Release;
(i) neither the execution and delivery of this General Release nor the performance hereof will
(i) result in any violation or breach of any agreement or other instrument to which Releasor or any
person under Releasor’s direct or indirect control is a party or by which Releasor or any person
under Releasor’s direct or indirect control is bound, or (ii) result in a violation or any law,
rule, regulation, treaty, ruling, directive, order, arbitration award, judgment or decree to which
Releasor or any person under Releasor’s direct or indirect control is subject; and
(j) the persons executing this General Release on behalf of the Releasors have full and
complete authority to do so, and to make and give the promises, releases and covenants set forth in
this General Release and no authorization, instruction, consent or approval of any person or entity
is required to be obtained by Releasor or any person under Releasor’s direct or indirect control in
connection with the execution and delivery of this General Release or the performance hereof.
4. Indemnification. Without in any way limiting any of the rights or remedies
otherwise available to any Releasee, each Releasor, severally, shall indemnify and hold
harmless each Releasee against and from any loss, damage, injury, harm, detriment, lost
opportunity, liability, exposure, claim, demand, settlement, judgment, award, fine, penalty,
tax, fee, charge or expense (including attorneys’ fees) that is directly or indirectly
suffered or incurred at any time by such Releasee, or to which such Releasee otherwise becomes
subject at any time, and that arises directly or indirectly out of or by virtue of, or relates
directly or indirectly to, (a) any failure on the part of Releasor to observe, perform or
abide by, or any other breach of, any restriction, covenant, obligation, representation,
warranty or other provision contained herein, or (b) the assertion or purported assertion of
any of the Released Claims by Releasor or any of Releasor’s Associated Parties.
5. Miscellaneous.
(a) This General Release sets forth the entire understanding of the parties relating to the
subject matter hereof and supersedes all prior agreements and understandings among or between the
Releasor and any of the Releasees relating to the subject matter hereof. No modification of this
General Release shall be binding, unless evidenced in writing and signed by an authorized
representative of the person against which such modification is being asserted. No breach of any
provision of this General Release can be waived except in writing. Waiver of any one breach shall
not be deemed to be a waiver of any other breach of the same or any other provisions hereof.
(b) If any provision of this General Release or any part of any such provision is held under
any circumstances to be invalid or unenforceable in any jurisdiction, then (i) such provision or
part thereof shall, with respect to such circumstances and in such jurisdiction, be deemed amended
to conform to applicable laws so as to be valid and enforceable to the fullest possible extent,
(ii) the invalidity or unenforceability of such provision or part thereof under
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such circumstances
and in such jurisdiction shall not affect the validity or enforceability of such provision or part
thereof under any other circumstances or in any other jurisdiction, and (iii) such invalidity or
enforceability of such provision or part thereof shall not affect the validity or enforceability of
the remainder of such provision or the validity or enforceability of any other provision of this
General Release. Each provision of this General Release is separable from every other provision of
this General Release, and each part of each provision of this General Release is separable from
every other part of such provision.
(c) This General Release shall be construed in accordance with, and governed in all respects
by, the laws of the State of Colorado (without giving effect to principles of conflicts of laws).
(d) Any dispute, controversy, or claim arising under this General Release, including alleged
breaches hereof and defaults hereunder, shall be resolved by arbitration in accordance with the
comprehensive arbitration rules and procedures of JAMS then in effect. Arbitration proceedings
shall be held in Denver, Colorado, or some other mutually acceptable location, and arbitration
awards may be enforced in any court of competent jurisdiction. Arbitration shall be conducted by a
single arbitrator selected by the parties who shall be qualified by training and experience to pass
upon the matter of the dispute and shall not have to power to add to, ignore or modify any term or
condition of this Agreement. In the event the parties are unable to agree upon a single arbitrator
within a thirty (30) day period, the
arbitrator shall be selected by JAMS. The arbitration decision shall not go beyond what is
necessary for the interpretation and application of this Agreement and shall be in writing and
shall set forth findings of fact and conclusions of law, as appropriate, supported by a reasoned
opinion. The cost of such arbitration shall be borne as determined by the arbitrator; provided
however, each party shall bear the costs of preparing and presenting its own case.
(e) This General Release may be executed in several counterparts, each of which shall
constitute an original and all of which, when taken together, shall constitute one agreement.
(f) Releasor shall execute and/or cause to be delivered to each Releasee such instruments and
other documents, and shall take such other actions, as such Releasee may reasonably request for the
purpose of carrying out or evidencing any of the actions contemplated by this General Release.
(g) If any legal action or other legal proceeding relating to this General Release or the
enforcement of any provision hereof is brought by Releasor or any Releasee, the prevailing party
shall be entitled to recover reasonable attorneys’ fees, costs and disbursements to the extent
actually incurred (in addition to any other relief to which the prevailing party may be entitled).
(h) This General Release shall inure to the benefit of the Releasees and their Associated
Parties, their successors, representatives, agents, officers, directors, employees and assigns and
shall be effective with respect to, and binding upon and enforceable against the Releasors and
their Associated Parties.
(i) Whenever required by the context, the singular number shall include the plural, and vice
versa; the masculine gender shall include the feminine and neuter genders; and the neuter gender
shall include the masculine and feminine genders.
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(j) Any rule of construction to the effect that ambiguities are to be resolved against the
drafting party shall not be applied in the construction or interpretation of this General Release.
(k) As used in this General Release, the words “include” and “including” and variations
thereof, shall not be deemed to be terms of limitation, and shall be deemed to be followed by the
words “without limitation.”
[SIGNATURE PAGE FOLLOWS]
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In Witness Whereof, the parties have caused this General Release to be executed as of the date
first above written.
| AMERALIA, INC | NATURAL SODA HOLDINGS, INC. | |||||||
By:
|
/s/ Xxxx X. Xxxx
|
By: | /s/ Xxxx X. Xxxx
|
|||||
Name:
|
Xxxx X. Xxxx | Name: | Xxxx X. Xxxx | |||||
Title:
|
President | Title: | President | |||||
| NATURAL SODA, INC. | SENTIENT USA RESOURCES FUND II, L.P. | |||||||
| By: | Sentient Executive MLP 1, | |||||||
| Limited, General Partner | ||||||||
By:
|
/s/ Xxxx X. Xxxx | By: | /s/ Xxxxx X. Xxxxxxx | |||||
Name:
|
Xxxx X. Xxxx | Name: | Xxxxx X. Xxxxxxx | |||||
Title:
|
President | Title: | Director | |||||
| SENTIENT USA RESOURCES FUND, L.P. | ||||||||
By:
|
Sentient Executive MLP 1, | |||||||
| Limited, General Partner | ||||||||
By:
|
/s/ Xxxxx X. Xxxxxxx | |||||||
Name:
|
Xxxxx X. Xxxxxxx | |||||||
Title:
|
Director | |||||||
| /s/ Xxxxxx xxx Xxxxxx | /s/ Xxxx X. Xxxx | |||||||
| Xxxxxx xxx Xxxxxx, | Xxxx X. Xxxx, individually | |||||||
| individually | ||||||||
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