AGREEMENT AND GENERAL MUTUAL RELEASE
This Agreement ("Agreement") is entered into as of this 6th day of January,
2000, by and between XXXXXX X. XXXXXX, an individual (hereinafter referred to as
"Xxxxxx"), on one hand, and LAKOTA TECHNOLOGIES, INC., a Colorado corporation
(hereinafter referred to, along with its subsidiaries Lakota Oil and Gas, Inc.,
a Texas corporation, 0-Xxxxxxxx.xxx, Inc., a Texas corporation, and AirNexus,
Inc., a Texas corporation, as "Lakota"), XXXXXX XXXX XXXXXXXX, an individual
(hereinafter referred to as "Xxxxxxxx"), XXXXX XXXXXX, an individual
(hereinafter referred to as "Xxxxxx"), XXXXXXX "XXXX" XXXXXX, an individual
(hereinafter referred to as "Xxxxxx"), XXXX X. XXXXX, an individual (hereinafter
referred to as "Xxxxx"), and XXXXXXXX X. ATHENS, an individual (hereinafter
referred to as "Athens"), on the other hand (each of Wilson, Lakota, Honeyman,
Jalali, Morgan, Hayes, and Athens shall be referred to as a "Party" and
collectively as the "Parties").
RECITALS
A. WHEREAS, the Parties desire to enter into this agreement regarding
(i) Xxxxxx'x continued employment by Lakota, (ii) his position as an officer and
director of Lakota, and (iii) compensation and other consideration due and owing
between Lakota and Xxxxxx (the "Matters").
B. The Parties desire, pursuant to the terms of this Agreement, to
settle the Matters and all disputes between Xxxxxx and the other Parties.
NOW, THEREFORE, for good and adequate consideration, the receipt of which
is hereby acknowledged, without admitting or denying any wrongdoing by any Party
hereto, the Parties covenant, promise and agree as follows:
AGREEMENT
1. Obligations of Xxxxxx. As a material term of this Agreement, Xxxxxx
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agrees to the following:
A. Resignations. As evidenced by his execution hereof, Xxxxxx hereby
resigns, effective as of the Effective Date as defined below, as an employee,
officer, and director of Lakota and each of its subsidiaries. Xxxxxx further
covenants and agrees, except as set forth in this Agreement, to release the
Parties hereto, and each of them, from any and all obligations with respect to
salary, severance, benefits, indebtedness to or from the Parties and each of
them, and any and all other obligations which may now or in the future be owed
to Xxxxxx. Xxxxxx further agrees to return any and all documents,
correspondence, books, records, keys, and other items in his possession
belonging to Lakota within ten (10) days of the Effective Date.
B. Discharge of Indebtedness. As evidenced by his execution hereof, except
as otherwise provided herein, Xxxxxx hereby waives and forgives any amounts
owing to him by Lakota.
C. Consulting Services. For a period of up to sixty (60) days following the
execution of this Agreement, as directed and determined solely by the Board of
Directors of Lakota, Xxxxxx shall provide a reasonable level of services to
Lakota as an independent consultant and contractor in connection with Lakota's
currently pending SB-2 registration statement.
D. Release of Lakota, Honeyman, Jalali, Morgan, Hayes, and Athens. Xxxxxx
hereby forever releases and discharges Lakota, Honeyman, Jalali, Morgan, Hayes,
and Athens, and each of them, their affiliates, divisions, predecessors,
successors and assigns, and each and all of their present and former agents,
officers, directors, attorneys, and employees, from and against any and all
claims, agreements, contracts, covenants, representations, obligations, losses,
liabilities, demands and causes of action, known or unknown, which Xxxxxx may
now or hereafter have or claim to have against them, arising out of or
pertaining to the subject matter of the Matters. Xxxxxx further covenants and
agrees, except as set forth in this Agreement, to release the Parties hereto,
and each of them, from any and all obligations with respect to salary,
severance, benefits, indebtedness to or from the Parties and each of them, and
any and all other obligations which may now or in the future be owed to Xxxxxx.
This release of claims and defenses shall not alter the prospective duties
between the parties under this Agreement.
E. Conditions Precedent. Each of the obligations of Xxxxxx as set forth in
this Agreement is subject to, as conditions precedent to the performance of his
obligations hereunder, the performance of the obligations of each of the other
Parties to this Agreement. The effective date of the actions to be taken by
Xxxxxx hereunder (the "Effective Date") shall be the date that Lakota delivers
the $25,000 as required by section 2(A)(i) and the 2,000,000 shares as required
by section 2(A)(iv), and Xxxxxx delivers the 1,000,000 shares as required by
section 2(B) hereof.
2. Obligations of Lakota, Honeyman, Jalali, Morgan, Hayes, and Athens.
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A. Obligations of Lakota.
(i) Within five (5) days of the date hereof, Lakota shall deliver, via
certified funds or bank wire, to the Xxxxxx Law Group, attention Xxxxx X.
Xxxxxxxx, Esq., as escrow agent (the "Escrow Agent"), the sum of Twenty Five
Thousand Dollars ($25,000) to be delivered to Xxxxxx upon execution of this
Agreement by all Parties and delivery of the Pledged Shares to the Escrow Agent
as set forth in section 2(B) hereof, and as more fully set forth in the Escrow
Agreement of even date herewith and executed by all Parties hereto (the "Escrow
Agreement").
(ii) Within ten (10) days of the earlier of (a) the effectiveness of a
registration statement, whether on Form SB-2 or otherwise (the "Registration
Statement"), as declared by the United States Securities and Exchange Commission
(the "SEC") (the "Registration Effective Date"), or (b) March 1, 2000, Lakota
shall deliver or cause to be delivered, via certified funds or bank wire, to
Xxxxxx the sum of One Hundred Thousand Dollars ($100,000). In the event that
Lakota fails to make the payment as described in this section 2(A)(ii) by March
11, 2000, and upon written demand received by the Escrow Agent from Xxxxxx, then
1,000,000 shares of Lakota common stock issued in the name of Xxxxxx and held by
the Escrow Agent (see section 2(B) below) shall be immediately released to
Xxxxxx in full satisfaction of the obligations in this section 2(A)(ii), as more
fully set forth in the Escrow Agreement.
(iii) On or before February 5, 2000, and again on or before March 5, 2000,
Lakota shall pay to Xxxxxx the sum of Seven Thousand Five Hundred Dollars
($7,500) as a consulting fee for services rendered in accordance with section 18
of this Agreement. Xxxxxx shall not be reimbursed for any expenses incurred as
a result of rendering consulting services unless such expenses are previously
approved, in writing, by Lakota.
(iv) Within five (5) days of the date hereof, Lakota shall deliver to the
Escrow Agent an aggregate of 2,000,000 shares of "restricted" common stock of
Lakota, issued to Xxxxxx or his assigns, to be delivered to Xxxxxx upon
execution of this Agreement by all Parties and delivery of the Pledged Shares to
the Escrow Agent as set forth in section 2(B) hereof, as more fully set forth in
the Escrow Agreement.
(v) As evidenced by its execution hereof, Lakota hereby forever waives and
forgives any amounts owing to it by Xxxxxx.
(vi) In the event an "Indemnifiable Action" (as hereinafter defined) is
brought against Xxxxxx at any time, then Lakota agrees to indemnify Xxxxxx for
any and all liabilities related to or arising from the Indemnifiable Action (the
"Indemnified Liabilities"). Indemnifiable Action shall mean a legal cause of
action commenced and physically served on Xxxxxx which names Xxxxxx as a party,
related to or arising from his relationship (whether past, present or future) as
an employee, consultant, officer and/or director of Lakota or any of its current
or pre-existing subsidiaries. The foregoing indemnification shall further be
subject to the requirement that in the event Xxxxxx becomes actually aware of an
Indemnifiable Action, he shall have Five (5) business days to deliver written
notice to Lakota of his intention to enforce the terms of this Agreement.
B. Obligations of Xxxxxx. Within five (5) days of the date hereof,
Xxxxxx shall deliver to the Escrow Agent an aggregate of One Million (1,000,000)
shares of Lakota common stock (the "Pledged Shares"), along with a fully
executed and medallion guaranteed stock power sufficient to transfer title and
ownership of the Pledged Shares, to be delivered in accordance with the terms of
the Escrow Agreement which shall include terms substantially as follows:
(i) Upon the timely delivery of the $100,000 set forth in section 2(A)(ii)
hereof, the Escrow Agent shall return the Pledged Shares to Xxxxxx, and the
obligations of the Escrow Agent and Xxxxxx arising under this section 2(B) shall
cease;
(ii) Notwithstanding the foregoing, however, in the event that the $100,000
is not timely delivered to Xxxxxx as set forth in section 2(A)(ii) hereof, then
upon receipt of written demand from Xxxxxx after March 11, 2000, the Escrow
Agent shall deliver to Xxxxxx the Pledged Shares, along with the executed stock
power, and the obligations of the Escrow Agent and Xxxxxx arising under this
section 2(B) shall cease.
C. Obligations of Lakota, Honeyman, Jalali, Morgan, Hayes, and Athens.
Lakota, Honeyman, Jalali, Morgan, Hayes, and Athens, and each of them and their
officers, directors, shareholders, members, managers, employees, attorneys,
associates, affiliates and assigns, hereby forever release and discharge Xxxxxx,
his affiliates, divisions, predecessors, successors and assigns, and each and
all of his present and former agents, officers, directors, attorneys, and
employees, from and against any and all claims, agreements, contracts,
covenants, representations, obligations, losses, liabilities, demands and causes
of action, known or unknown, which Lakota, Honeyman, Jalali, Morgan, Hayes, and
Athens may now or hereafter have or claim to have against Xxxxxx arising out of
or pertaining to the subject matter of the Matters. This release of claims and
defenses shall not alter the prospective duties between the parties under this
Agreement.
D. Conditions Precedent. Each of the obligations of Lakota, Honeyman,
Jalali, Morgan, Hayes, and Athens, and each of them, as set forth in this
Agreement is subject to, as conditions precedent to the performance of their
obligations hereunder, the performance of the obligations of Xxxxxx under the
terms of this Agreement.
4. Scope of Release. Each Party acknowledges and agrees that this
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Agreement applies to all claims that any Party may have against the other Party
relating to the subject matter of the Matters, including, but not limited to,
causes of action, injuries, damages, claims for costs or losses to any Party's
person and property, real or personal, whether those injuries, damages, or
losses are known or unknown, foreseen or unforseen, or patent or latent, and
further includes any and all acts and matters related to Xxxxxx'x involvement
with Lakota as an employee, consultant, officer and/or director. This Agreement
is not intended to, nor shall it, alter or modify any rights or obligations of
the Parties under any other agreements not mentioned herein to which the Parties
may be a party.
5. Confidentiality. Each Party hereto will hold and will cause its
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consultants and advisors to hold in strict confidence, unless compelled to
disclose by judicial or administrative process or, in the opinion of its
counsel, by other requirements of law, all documents and information concerning
any other Party furnished it by such other Party or its representatives in
connection with the subject matter of the Matters (except to the extent that
such information can be shown to have been (i) previously known by the Party to
which it was furnished, (ii) in the public domain through no fault of such
Party, or (iii) later lawfully acquired from other sources by the Party to which
it was furnished), and each Party will not release or disclose such information
to any other person, except its auditors, attorneys, financial advisors, bankers
and other consultants and advisors in connection with this Agreement. Each
Party shall be deemed to have satisfied its obligation to hold confidential
information concerning or supplied by the other Party if it exercises the same
care as it takes to preserve confidentiality for its own similar information.
6. No Representations. Each Party acknowledges and represents that, in
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executing this Agreement, such Party has not relied on any inducements,
promises, or representations made by any Party or any party representing or
serving such Party, unless expressly set forth herein.
7. Disputed Claim. This Agreement pertains to a disputed claim and
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does not constitute an admission of liability by any Party for any purpose.
8. Covenant Re: Assignment. The Parties hereto, and each of them,
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represent and warrant to each other that each is the sole and lawful owner of
all right, title and interest in and to every claim and other matter which each
purports to release herein, and that they have not heretofore assigned or
transferred, or purported to assign or transfer, to any person, firm,
association, corporation or other entity, any right, title or interest in any
such claim or other matter. In the event that such representation is false,
and any such claim or matter is asserted against any Party hereto (and/or the
successor of such Party) by any Party or entity who is the assignee or
transferee of such claim or matter shall fully indemnify, defend and hold
harmless the Party against who such claim or matter is asserted (and its
successors) from and against such claim or matter and from all actual costs,
fees, expenses, liabilities, and damages which that Party (and/or its
successors) incurs as a result of the assertion of such claim or matter.
9. Survival of Warranties. The representations and warranties
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contained in this Agreement are deemed to and do survive the execution hereof.
10. Modifications. This Agreement may not be amended, canceled,
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revoked or otherwise modified except by written agreement subscribed by all of
the Parties to be charged with such modification.
11. Agreement Binding on Successors. This Agreement shall be binding
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upon and shall inure to the benefit of the Parties hereto and their respective
partners, employees, agents, servants, heirs, administrators, executors,
successors, representatives and assigns.
12. Attorney's Fees. All Parties hereto agree to pay their own costs
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and attorneys' fees except as follows:
(a) In the event of any action, suit or other proceeding instituted to
remedy, prevent or obtain relief from a breach of this Agreement, arising out of
a breach of this Agreement, involving claims within the scope of the releases
contained in this Agreement, or pertaining to a declaration of rights under this
Agreement, the prevailing Party shall recover all of such Party's attorneys'
fees and costs incurred in each and every such action, suit or other proceeding,
including any and all appeals or petitions therefrom.
(b) As used herein, attorneys' fees shall be deemed to mean the full
and actual costs of any legal services actually performed in connection with the
matters involved, calculated on the basis of the usual fee charged by the
attorneys performing such services.
13. Choice of Law; Venue. This Agreement and the rights of the parties
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hereunder shall be governed by and construed in accordance with the laws of the
State of Texas, including all matters of construction, validity, performance,
and enforcement and without giving effect to the principles of conflict of laws.
Any cause of action brought in connection with this Agreement shall be brought
in Xxxxxx County, in the State of Texas.
14. Terms & Conditions. The Parties agree and stipulate that each
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and every term and condition contained in this Agreement is material, and that
each and every term and condition may be reasonably accomplished within the time
limitations, and in the manner set forth in this Agreement.
15. Time is of the Essence. The Parties agree and stipulate that time
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is of the essence with respect to compliance with each and every item set forth
in this Agreement.
16. Entire Agreement. This Agreement and the Escrow Agreement set
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forth the entire agreement and understanding of the Parties hereto and
supersedes any and all prior agreements, arrangements and understandings related
to the subject matter hereof. No understanding, promise, inducement, statement
of intention, representation, warranty, covenant or condition, written or oral,
express or implied, whether by statute or otherwise, has been made by any party
hereto which is not embodied in this Agreement or the written statements,
certificates, or other documents delivered pursuant hereto or in connection with
the transactions contemplated hereby, and no Party hereto shall be bound by or
liable for any alleged understanding, promise, inducement, statement,
representation, warranty, covenant or condition not so set forth.
17. Counterparts. This Agreement may be executed in one or more
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counterparts, each of which when executed and delivered shall be an original,
and all of which when executed shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties hereto, agreeing to be bound hereby,
execute this Agreement upon the date first set forth above.
Dated: XXXXXX X. XXXXXX, an individual
/s/ Xxxxxx X. Xxxxxx
______________________________________
Dated: LAKOTA TECHNOLOGIES, INC.
/s/ Xxxxx Xxxxxx
______________________________________
By: Xxxxx Xxxxxx, on behalf of the
Board of Directors
Dated: XXXXXX XXXX XXXXXXXX, an individual and as a
Director of Lakota Technologies, Inc.
/s/ Xxxxxx Xxxx Xxxxxxxx
______________________________________
Dated: XXXXX XXXXXX, an individual and as a
Director of Lakota Technologies, Inc.
/s/ Xxxxx Xxxxxx
______________________________________
Dated: XXXXXXX "XXXX" XXXXXX, an individual and as
a Director of Lakota Technologies, Inc.
/s/ Xxxxxxx "Cody" Xxxxxx
______________________________________
Dated: XXXX X. XXXXX, an individual and as a
Director of Lakota Technologies, Inc.
/s/ Xxxx X. Xxxxx
______________________________________
Dated: XXXXXXXX X. ATHENS, an individual and as a
Director of Lakota Technologies, Inc.
/s/ Xxxxxxxx X. Athens
______________________________________
