Exhibit 10.14
GENERAL RELEASE AND SETTLEMENT AGREEMENT
THIS GENERAL RELEASE AND SETTLEMENT AGREEMENT (the "Release") is made and
entered into this the day of August 2004 by and between Xxxxx X. Xxxxx and
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Xxxxxxx X. Xxxxxx (collectively, "Creditor" or "Purchaser") and Cascade Mountain
Mining Company, Inc., a Nevada corporation (the "Company").
RECITALS
WHEREAS, Creditor has provided services, loans and advances to the Company,
and the Company is in debt to Creditor.
WHEREAS, the Company is currently unable to pay Creditor, and is willing to
sell to each Creditor shares of the Company, and transfer all assets of the
Company, in satisfaction of all obligations of the Company to such Creditor; and
WHEREAS, Creditor and the Company now desire to execute this Release to
settle all accounts and disputes as provided herein to avoid the expense and
delay of litigation.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and agreements
herein contained, the parties hereby agree as follows:
1. Release
Each Creditor, for itself and its respective past, present and future
administrators, affiliates, agents, assigns, attorneys, directors, employees,
executors, heirs, insurers, parents, partners, predecessors, representatives,
servants, successors, transferees, and all persons acting by, through, under or
in concert with any of them, hereby releases and discharges (i) the Company and
its past, present and future administrators, affiliates, agents, assigns,
attorneys, directors, employees, employers, executors, heirs, insurers,
officers, managers, parents, partners, predecessors, representatives, servants,
shareholders, subpartners, subsidiaries, successors, transferees, underwriters,
clients, customers, and each of them, and all persons acting by, through, under
or in concert with any of them, of and from any and all actions, causes of
action (including causes of action for tortuous conduct, fraud, fraudulent
inducement or otherwise), claims, costs, damages, debts, demands, expenses,
liabilities, losses and obligations of every nature, character and description,
known or unknown, suspected or unsuspected, actual or contingent, which the
releasing party now owns or holds, or has at any time heretofore owned or held,
or may at any time hereafter own or hold, by reason of any matter, cause or
thing whatsoever incurred, done, omitted or suffered to be done arising out of,
or which may hereafter be claimed to arise out of, related to or in any way
directly or indirectly connected with any events, facts, circumstances or
conditions that exist or existed on or prior to the date hereof (all such
released or discharged items, collectively, the "Released Claims"). It is
specifically agreed that the Released Claims includes all loans and advances
made by the Creditor to the Company, including without limitation the current
balance of those certain loans and advances referred to in the Company's Form
10-QSB for the period ended March 31, 2004, and listed in the balance sheet
contained therein as "Notes Payable $200,000" and "Payable to stockholder
$201,930," and all options, warrants and other rights to acquire any securities
of the Company held by the Creditor.
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2. Other Transactions.
(a) The Company hereby agrees to issue 85,000,000 shares of the
Company's common stock to Xxxxx X. Xxxxx, and 7,510,584 shares of
the Company's common stock to Xxxxxxx X. Xxxxxx. For purposes of
this Agreement, it is acknowledged and agreed that the value of
such shares is $0.0035 per share.
(b) Each Creditor jointly and severally agrees to pay all accrued
liabilities of the Company, and any other liabilities of the
Company, in full on or prior to July 15, 2004, other than a
$9,000 liability to Xxxxx Xxxx, Esq.
(c) Xxxxx X. Xxxxx and Xxxxxxx X. Xxxxxx each shall resign as an
officer and director of the Company on the date hereof.
(d) The Company shall transfer to Xxxxx X. Xxxxx 100% of the issued
and outstanding common stock of the Company's wholly owned
subsidiary, Cascade Mountain Mining Corp., a Nevada corporation
(the "Subsidiary") upon the date the Company acquires a private
operating company, or within 180 days after the date hereof,
whichever is earlier. Xxxxx X. Xxxxx shall indemnify the Company
and hold the Company harmless from any and all liabilities,
damages, expenses or losses suffered by the Company after the
date hereof arising from or related to any liability of the
Subsidiary. It is acknowledged and agreed that the value of these
shares is $1,000.
3. Representations and Covenants
(a) Each of the Parties acknowledges that there is a risk that
subsequent to the execution of this Agreement, one or more Parties will incur or
suffer loss, damages or injuries which are in some way caused by or related to
the Released Claims, but which are unknown and unanticipated at the time this
Agreement is signed. All parties do hereby assume the above-mentioned risk and
understand that this Agreement SHALL APPLY TO ALL UNKNOWN OR UNANTICIPATED
RESULTS OF THE TRANSACTIONS AND OCCURRENCES DESCRIBED ABOVE, AS WELL AS THOSE
KNOWN AND ANTICIPATED, each of the Parties acknowledges in executing the
releases (the "Releases") contained in this Agreement, that each does so with
full knowledge of any and all rights and benefits that each might otherwise have
had under California Civil Code Section 1542, and each, upon the advice of
counsel, hereby waives and relinquishes any and all such rights and benefits.
Each of the Parties acknowledges and agrees that this waiver is an essential and
material term hereof, without which this Agreement (including, without
limitation, the Releases) would not have been entered into. Section 1542 reads
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."
Each of the Parties certifies that it has read the foregoing recitation of
Section 1542 and understands the meaning of such section and such fact is
indicated by the signing of such Party's initials hereto:
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Company's Creditor's
Initials Initials
Each of the Parties further acknowledges that each may hereafter discover facts
different from or in addition to those known or believed to be true with respect
to the Released Claims. Each of the Parties agrees that the Releases shall be
and shall remain effective in all respects, notwithstanding any such different
or additional facts, or any facts which are intentionally concealed from either
party by the other. In this regard, and without limitation, each of the Parties
declares that it realizes that it may have damages it presently knows nothing
about and that, as to them, they have been released pursuant to the Releases.
Each of the Parties further declares that it understands that the parties being
released would not have agreed to compromise their respective claims if the
Releases did not cover damages and their results which may not yet have
manifested themselves or which may be unknown or not anticipated at the present
time.
(b) The Releases shall not be deemed an admission by any of the
Parties of any sort. No right shall inure to any third party (other than third
parties described in subparagraphs (a) or (b) above) from the obligations,
representations and agreements made or reflected herein.
(c) Each of the Parties represents and warrants that it alone is
the owner of the Released Claims, that it has not heretofore assigned or
transferred, nor purported to assign or transfer to any third party, and is not
aware of any third party, who might assert some interest in any of the Released
Claims. Each Party further agrees to indemnify, defend and hold harmless the
other from all liability, claims, demands, damages, costs, expenses and
attorneys' fees incurred by the other Party as a result of any third party
asserting any such assignment or transfer of any such interest, right or claim.
(d) Each of the Parties represents and warrants that none of the
Released Claims is subject to any purported or actual lien, security interest,
encumbrance or other contractual right of any third party. Each Party further
agrees to indemnify, defend and hold harmless the other from all liability,
claims, demands, damages, costs, expenses and attorneys' fees incurred by the
other Party as a result of any third party asserting the existence of any of the
foregoing.
(e) Each of the Parties acknowledges that it has read this
Agreement, has been, or has had the opportunity to be, represented by
independent counsel of their own choice in connection with the circumstances
leading up to the execution of the Releases, understands the terms, conditions
and consequences of the Releases, and is freely and voluntarily entering into
the Releases.
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4. Each Creditor (referred to in this Section as a "Purchaser"),
in connection with its purchase of the common stock of the Company described in
Section 2(a) above, and in connection with the purchase of all of the
outstanding capital stock of the Company's wholly-owned subsidiary, as described
in Section 2(d) above, hereby represents to the Company that:
(a) Purchaser has such knowledge and experience in financial and
business matters so as to be capable of evaluating and understanding, and has
evaluated and understood, the merits and risks of an investment in the Company
and the acquisition of securities of the Company, and Purchaser has been given
the opportunity to (i) obtain information and to examine all documents relating
to the Company and the Company's business, to (ii) ask questions of, and to
receive answers from, the Company concerning the Company, the Company's business
and the terms and conditions of an investment in the Company, and to (iii)
obtain any additional information, to the extent the Company possesses such
information or could acquire such information without unreasonable effort or
expense, necessary to verify the accuracy of any information previously
furnished. All such questions have been answered to Purchaser's full
satisfaction, and all information and documents, records and books pertaining to
an investment in the Company which Purchaser has requested have been made
available to Purchaser. Each Purchaser is an officer and director of the
Company.
(b) Purchaser is able to bear the substantial economic risks of
Purchaser's investment in the Company and the purchase of securities of the
Company in that, among other factors, Purchaser can afford to hold securities of
the Company for an indefinite period and can afford a complete loss of
Purchaser's investment in the Company.
(c) No material adverse change in Purchaser's financial condition
has taken place during the past twelve (12) months, and Purchaser will have
sufficient liquidity with respect to Purchaser's net worth for an adequate
period of time to provide for Purchaser's needs and contingencies.
(d) Purchaser is relying solely on Purchaser's own decision or
the advice of Purchaser's own adviser(s) with respect to an investment in the
Company and the acquisition of securities of the Company, and has neither
received nor relied on any communication from the Company, the Company's
officers (in their capacity as such) or the Company's agents regarding any
legal, investment or tax advice relating to an investment in the Company and the
acquisition of securities of the Company.
(e) Purchaser recognizes that investments in the Company involve
substantial risks in that, among other factors: (i) successful operation of the
Company depends on factors beyond the control of the Company; (ii) an investment
in the Company is a speculative investment and involves a high degree of risk of
loss; (iii) the Company is engaged in an industry which is highly competitive
and subject to substantial risks relating to rapid technological change, fierce
competition, uncertain markets and an uncertain customer base; (iv) retention of
key employees is critical to the Company's business; (v) the Company has a
limited amount of working capital available to it; and (vi) there will be no
public market for securities of the Company acquired by Purchaser hereunder and,
accordingly, it may not be possible to liquidate an investment in the Company in
case of immediate need of funds or any other emergency, if at all. Each
Purchaser has taken full cognizance of, and understands, such risks and has
obtained sufficient information to evaluate the merits and risks of an
investment in the Company and the acquisition of securities of the Company.
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(f) Purchaser confirms that none of the Company's officers nor
any of the Company's agents have made any warranties concerning an investment in
the Company, including, without limitation, any warranties concerning
anticipated financial results, or the likelihood of success of the operations,
of the Company.
(g) Securities of the Company are acquired by Purchaser for
Purchaser's own account, for investment and not with a view to, or in connection
with, any public offering or distribution of the same and without any present
intention to sell the same at any particular event or circumstances. Purchaser
has no agreement or other arrangement with any person to sell, transfer or
pledge any part of securities of the Company which would guarantee Purchaser any
profit or provide any guarantee to Purchaser against any loss with respect to
securities of the Company.
(h) Purchaser understands that no federal, state or other
governmental agency of the United States or any other territory or nation has
passed on or made any recommendation or endorsement of an investment in
securities of the Company.
(i) Purchaser understands that securities of the Company have not
been registered under the United States Securities Act of 1933, as amended (the
"Act") or applicable state or other securities laws, and securities of the
Company are offered and sold under an exemption from registration provided by
such laws and the rules and regulations thereunder; further, Purchaser
understands that the Company is under no obligation to register securities of
the Company or to comply with any applicable exemption under any applicable
securities laws with respect to securities of the Company. Purchaser must bear
the economic risks of an investment in the Company for an indefinite period of
time because it is not anticipated that there will be any market for securities
of the Company and because securities of the Company cannot be resold unless
subsequently registered under applicable securities laws or unless an exemption
from such registration is available. Purchaser also understands that the
exemption provided by Rule 144 under the Act may not be available because of the
conditions and limitations of such Rule, and that in the absence of the
availability of such Rule, any disposition by Purchaser of any portion of
securities of the Company may require compliance with some other exemption under
the Act.
(j) Purchaser has been informed that legends referring to the
restrictions indicated herein are placed on the certificate(s) evidencing
securities of the Company held by Purchaser.
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(k) Purchaser agrees that the foregoing representations and
warranties will survive the sale of securities of the Company to Purchaser, as
well as any investigation made by any party relying on same.
(l) Purchaser is an "accredited investor" as such term is defined
in Regulation D promulgated under the Act.
5. By execution of this Release, each releasing party represents and
warrants to the released party that no Claim that he, she or it has, had, might
have or might have had in the past against any person or entity released hereby,
has previously been conveyed, assigned, or in any manner transferred, in whole
or in part, to any third party. Each releasing party expressly represents and
warrants to the other that he, she or it has full authority to enter into this
Release and to release any and all Claims he, she or it now has, had, might have
or might have had in the past against each person or entity released hereby.
6. It is expressly understood and agreed that the terms of this
Agreement are contractual and not merely recitations and that the agreements
herein contained are to compromise doubtful and disputed Claims, avoid
litigation, and buy peace and that no releases or other consideration given
shall be construed as an admission of liability, all liability being expressly
denied by each released party hereto.
7. CONFIDENTIAL AGREEMENT. Creditor hereto agrees to hold all
provisions of this Agreement, as well as any information pertaining to any
released party, strictly confidential, and shall not disclose the terms hereof
to any third party, except as required by applicable law or legal process.
8. It is further understood and agreed that this Agreement contains
the entire agreement between the parties and supersedes any and all prior
agreements, arrangements, or understandings between the parties relating to the
subject matter hereof. No oral understandings, statements, representations,
warranties, promises, or inducements contrary to the terms of this Agreement or
otherwise not contained in this Agreement exist. This Agreement cannot be
changed or terminated except in writing signed by all parties hereto. The
rights, duties and obligations of the Parties under this Agreement shall operate
independently of any other relationship, contractual or otherwise, between the
Parties.
9. This Agreement shall be construed in all respects in accordance
with the internal laws of the State of California applicable to agreements made
and to be performed entirely within California. Any dispute which relates to the
subject matter hereof, or arises herefrom, shall be resolved in Los Angeles,
California.
Creditor hereby irrevocably covenants to refrain from, directly
or indirectly, asserting any claim or demand, or commencing, instituting or
causing to be commenced, any proceeding of any kind against the Company or any
other party released hereunder based upon any matter purported to be released
hereby.
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10. By execution of this Agreement, each Releasor warrants and
represents that he understands that this is a full, final, and complete
settlement with each party released hereby of all known and unknown Claims. The
Releases are not conditioned upon the occurrence or nonoccurrence of any event
or the granting of any consent or approval or related to or dependent upon any
other event or any agreement or business transaction between the Parties.
11. This Agreement shall be binding upon and shall inure to the
benefit of the Parties and their respective heirs, successors, representatives,
assigns, affiliates, agents, shareholders, directors, employees and attorneys,
past and present, and each of them.
12. If any provision of this Agreement is held invalid or
unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable. This
Agreement and all transactions contemplated hereby shall be governed by,
construed and enforced in accordance with the laws of the State of California.
THE PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE CONTEMPLATED TRANSACTIONS,
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT,
TORT OR OTHERWISE. THE PARTIES AGREE THAT ANY OF THEM MAY FILE A COPY OF THIS
PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND
BARGAINED-FOR AGREEMENT AMONG THE PARTIES IRREVOCABLY TO WAIVE TRIAL BY JURY AND
THAT ANY PROCEEDING WHATSOEVER BETWEEN THEM RELATING TO THIS AGREEMENT OR ANY OF
THE CONTEMPLATED TRANSACTIONS SHALL INSTEAD BE TRIED IN A COURT OF COMPETENT
JURISDICTION BY A JUDGE SITTING WITHOUT A JURY. The parties agree to submit to
the personal jurisdiction and venue of a court of subject matter jurisdiction
located in the State of California, city of Los Angeles. In the event that
litigation results from or arises out of this Agreement or the performance
thereof, the parties agree to reimburse the prevailing party's reasonable
attorneys' fees, court costs and all other expenses, whether or not taxable by
the court as costs, in addition to any other relief to which the prevailing
party may be entitled.
13. This Agreement may be signed in one or more counterparts,
each of which shall constitute an original but all of which, when taken
together, shall constitute one and the same agreement. If this Agreement is
executed in counterparts, then each Party shall execute sufficient counterpart
signature pages for each Party, ultimately, to be provided with an originally
executed counterpart signature page from each Party.
14. Each gender shall include the other genders whenever the
context may require in this Agreement.
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IN WITNESS WHEREOF, the undersigned have set their hands hereunto as of the
dates set forth beneath the undersigned's respective signatures below.
Cascade Mountain Mining Company, Inc. Xxxxx X. Xxxxx
a Nevada corporation
By: /s/ Xxxxx X. Xxxxx /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx Xxxxx X. Xxxxx
Title: President
Xxxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
