EXHIBIT 10.152
CONFIDENTIAL SETTLEMENT AGREEMENT
This Confidential Settlement Agreement ("Agreement") is entered into by
and between CH2M Hill Xxxxxxxx Xxxxxx as the successor to Xxxxxxxx Xxxxxx
Engineers, Inc. ("LGE") and HiEnergy Technologies, Inc. ("HiEnergy") as of this
20th Day of July, 2006. LGE and HiEnergy are referred to sometimes herein
individually as a "Party" and collectively as the "Parties".
Recitals
WHEREAS, there is now pending in the Xxxxxx Xxxxx xx Xxx Xx. 0 xx Xxxxxx
Xxxxxx, Xxxxx that certain lawsuit styled Xxxxxxxx Xxxxxx Engineers, Inc. v.
HiEnergy Technologies, Inc., Cause No. 05-12059-B (the "Suit") wherein LGE seeks
recovery of $35,038.66 in amounts past due and owing from HiEnergy (the "Amount
Due"), plus interest, attorneys fees and costs, under theories of sworn account,
breach of contract and quantum meruit.
WHEREAS, on or about July 12, 2006, LGE filed its Motion for Summary
Judgment in the Suit asking for judgment on the Amount Due, plus an award of
$9,668.50 in attorneys fees through the summary judgment hearing, interest as
allowed by law and costs;
WHEREAS, the Motion for Summary Judgment is set to be heard on July 28,
2006 and a trial of the Suit has been set for August 14, 2006, if LGE's Motion
for Summary Judgment is not granted; and
WHEREAS, the Parties desire to compromise their claims in order to avoid
the uncertainty and expense of further litigation according to the terms set
forth herein.
NOW, THEREFORE, in consideration of the covenants and agreements herein
set forth, and other good and valuable consideration, the Parties have agreed as
follows:
I. DEFINITIONS
(a) "Purchase Order" means HiEnergy Purchase Order Number G24AG7 issued to LGE
in the not to exceed amount of $82,875.00 and attached to Plaintiff's First
Amended Petition in the Suit as Exhibit "A".
(b) "Claims" means any and all actions, causes of action, suits, liabilities,
fines, penalties, orders, debts, obligations, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, executions and
other claims and demands whatsoever, in law, in equity, or otherwise, whether
known or unknown, and whether or not concealed or hidden, which exist or may
exist now, including but not limited to claims for money, contract balances,
additional services, reimbursable expenses, interest, damages, attorneys' fees,
or otherwise and asserted or that could have been asserted in the Suit, whether
by LGE or by HiEnergy, and arising from the Purchase Order. All claims arising
out of this Agreement or any claims arising in the future relating to any future
contracts, transactions or other dealings between the Parties are expressly
excluded from the definition of Claims for purposes of this Agreement.
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II. TERMS AND CONDITIONS
The Parties hereto stipulate and agree to resolve the matters alleged in the
Suit and any Claims pursuant to the following terms and conditions:
1. Confidentiality. In addition to any confidentiality requirements of the
Purchase Order which shall survive the execution of this Agreement, the entirety
of this Agreement shall be treated by the Parties as confidential and its terms
may not be disclosed by the Parties or their counsel to any person or entity not
a party hereto, except to a party's outside auditors and counsel, except to the
extent that such disclosure is required by law, including, without limitation,
disclosure in filings with the Securities and Exchange Commission, or as may be
required to enforce the terms of this Agreement. It shall not be a violation of
this section for a Party to disclose upon inquiry that the dispute has been
resolved to the Parties' mutual satisfaction on confidential terms.
Notwithstanding the foregoing, the Parties may disclose the terms of this
Agreement to the extent reasonably required to insurers in connection with
policy matters.
2. Payments. HiEnergy shall make cash payments to LGE in the aggregate
amount of $40,000 in full settlement of the matters alleged in the Suit and any
Claims, in four equal installments payable as follows:
a. $10,000 on or before the close of business on July 21, 2006;
b. $10,000 on or before the close of business on October 20, 2006;
c. $10,000 on or before the close of business on January 19, 2007;
and
d. $10,000 on or before the close of business on April 20, 2007
Each of the above payments shall be made by cashier's check, certified check or
wire transfer.
3. Dismissal of Suit. Following the execution by the Parties of this
Agreement, LGE shall immediately cause its attorneys to non-suit or otherwise
cause the Suit to be dismissed, without prejudice to the refiling of same.
4. Conditional Release by LGE. Provided and upon the condition that
HiEnergy shall pay LGE each of the installment payments required by Paragraph 2
of this Agreement on or before the date when each such payment is due, then LGE,
for itself and its officers, directors, agents, employees, affiliates, partners,
members, successors and assigns, does hereby release and forever discharge
HiEnergy and its respective officers, directors, agents, employees, affiliates,
partners, members, successors and assigns from the Claims. Upon LGE's receipt of
the last required installment payment required by Paragraph 2 of this Agreement,
and provided that HiEnergy shall have timely made each of the first three
installment payments to LGE required by Paragraph 2 of this Agreement, then the
foregoing Conditional Release by LGE shall then become an unconditional release
by LGE of HiEnergy of the Claims.
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5. Failure to Comply. In the event HiEnergy shall fail to make any or all
of the installment payments required by the this Agreement when due or otherwise
fail perform its obligations hereunder, and provided that LGE has provided
written notice to HiEnergy of its default under this Agreement and a ten (10)
day opportunity to cure, then LGE shall be free to refile the Suit. In such
event, LGE's damages shall only be reduced by the total amount of all payments
made by HiEnergy hereunder, it being expressly understood and agreed that in the
event LGE refiles the Suit, LGE shall be entitled to recover any outstanding
balance of the Amount Due, the full amount of its attorneys' fees incurred in
collecting the full Amount Due, plus interest as allowed by law on the full
Amount Due from the date payment of the Amount Due was originally due LGE until
the date of actual collection of the full Amount Due or any part of the Amount
Due from HiEnergy.
6. Unconditional Release by HiEnergy. HiEnergy, for itself and its
officers, directors, agents, employees, affiliates, partners, members,
successors and assigns, does hereby release and forever discharge LGE and its
respective officers, directors, agents, employees, affiliates, partners,
members, successors and assigns from the Claims.
7. Representations and Warranties
a. LGE represents and warrants that it has not assigned, transferred
or conveyed, or purported to have assigned, transferred or conveyed, to any
person or entity, any claim against HiEnergy, or any other right subject to this
Agreement.
b. Each of the Parties warrants to the other that this Agreement is
being entered into willingly and that no promises or representations have been
made which are not a part of this Agreement.
c. Each of the Parties have consulted with counsel of their own
choosing and has participated in drafting this Agreement and no party is to be
understood to be the drafter of the Agreement for purposes of construing it
against the drafter.
8. Notices. All notices, requests, certifications, demands or other
communications related in any way to this Agreement shall be in writing and may
be delivered by overnight courier or facsimile to the addresses specified below
or such other address as may be designated in writing by notice given in the
manner herein provided:
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If to LGE:
Xxxxxx Xxxxxxxx
Jenkens & Xxxxxxxxx, P.C.
0000 Xxxx Xxxxxx, Xxx 0000
Xxxxxx, XX 00000
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000 (fax)
If to HiEnergy:
HiEnergy Technologies, Inc.
Attn: Corporate Secretary
0000-X Xxxxx Xxxxxxx, Xxxx X
Xxxxxx, Xxxxxxxxxx 00000
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
If delivered personally, such notice shall be deemed to be effective upon
receipt. If notice is given by overnight courier, such notice shall be deemed to
be effective two (2) business days following deposit with the courier. If by
facsimile, such notice shall be deemed to be effective one (1) day following the
sending of the facsimile.
9. Effect of Headings. Paragraph headings appearing in this Agreement are
provided for convenience of reference only, and shall in no way be construed to
alter or modify the text hereof.
10. Binding on Successors and Assigns. This Agreement shall inure to the
benefit of and be binding in all respects upon the Parties' successors, assigns
and transferees.
11. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas, as they exist as of the date of
this Agreement. In the event it becomes necessary to refile the Suit, the
Parties agree to jurisdiction and venue in the courts Dallas County, Texas.
12. Counterparts. This Agreement may be executed in any number of multiple
counterparts, each of which shall be an original, and shall comprise one and the
same document.
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13. Authority to Execute. Each of the Parties and signatories warrants,
covenants and represents that it has executed or caused this Agreement to be
executed by duly authorized representatives and that all corporate actions
necessary to create a binding and enforceable agreement have been taken.
HIENERGY TECHNOLOGIES, INC. CH2M HILL XXXXXXXX XXXXXX
By: /Xxxxx W. A. Spillmann/ By: /s/ Xxxxx Xxxxxx/
-------------------------------- -------------------------------------
Xxxxx W.A. Spillmann - Pres/CEO Xxxxx Xxxxxx, Managing Director
Date: 7/20/06 Date: 7/20/06
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