MUTUAL RELEASE AND SETTLEMENT AGREEMENT
This Mutual Release And Settlement Agreement ("Agreement") is entered into
between and among Platina Energy Group, Inc. and Permian Energy International,
Inc. (respectively "PEG" and "PEI" and collectively "Platina") on one side;
Permian Energy Services, L.P. and Xxxxxx X. Xxxxx (respectively "PES" and
"Xxxxx" and collectively "defendants" on another side; and Wyoming Energy
Services, Inc. ("XXX") on the other, each of whom is sometimes referred to
individually as a "Party" and all of whom are sometimes collectively referred
to as the "Parties", and is effective upon execution by all of the parties and
payment of the consideration set forth herein (the "Effective Date").
RECITALS
WHEREAS, PEG and PEI are the plaintiffs and PES and Xxxxx are the defendants
in that certain civil action pending in the District Court for the City and
County of Denver, State of Colorado docketed as Civil Action No. 05 CV 6344
(the "Civil Action"); and
WHEREAS, the Parties wish to settle all differences between them, including
but not limited to the claims asserted in the Civil Action; and
WHEREAS, all Parties deny any wrongdoing towards the other, and further deny
that each has any liability to the other; and
NOW, THEREFORE, the Parties agree as follows:
COVENANTS
Payments. PEG and/or PEI shall make the following payments:
(1) No later than February 10, 2006, PEG and/or PEI shall pay to Xxxxx, on
behalf of himself and PES, the sum of $26,911.35, provided that by that date
PES has delivered to Xxxxxxx X. Xxxxxx, Esq. the Two Million Twenty Five
Thousand (2,025,000) shares of PEG common stock (the "PEG Shares), an executed
stock power sufficient to allow transfer of those shares by PEG, and the
promissory note in the face amount of $215,000 from PEG to PES (the "PEG
Note") which PES received in connection with the Asset Purchase Agreement
between PES and PEG (the "First Payment").
(2) No later than February 21, 2006, PEG and/or PEI shall pay to Xxxxx, on
behalf of himself and PES. the sum of $26,911.35 (the "Second Payment").
The foregoing payments shall be in complete satisfaction of all claims PES
and/or Xxxxx, jointly or severally, rmay have against PEG, PEI, or any of
their subsidiaries, executives, agents, insurers, attorneys or anyone acting
by or on their behalf, including without limitation all claims PES may have
for unpaid invoices and Xxxxx may have for unpaid salary.
Return of Stock and Note by PES.
Following the making of the First and Second Payment set forth above, Xxxxxxx
X. Xxxxxx, Esq. is authorized to transfer to PEG or its assignee, as may be
designated by PEG in writing, the Two Million Twenty Five Thousand (2,025,000)
shares of PEG common stock (the "PEG Shares) and the promissory note in the
face amount of $215,000 from PEG to PES (the "PEG Note") which PES received in
connection with the Asset Purchase Agreement between PES and Platina. If PEG
and/or PEI fail to make both of the payments described above, Xxxxxxx X.
Xxxxxx, Esq. shall return the PEG Shares and the PEG Note to PES and the terms
of this Agreement shall be null and void. If PEG and/or PEI make the First
Payment, Xxxxxxx X. Xxxxxx, Esq. shall return 1/2 of the PEG Shares and the
PEG Note to PES, and shall transfer the remaining PEG Shares to Plantina or
its written assignee, and this Agreement shall be null and void, provided,
that Xxxxx and PES shall nonetheless be entitled to retain the First Payment,
which shall be applied against any amounts due to PES by PEG or PEI for unpaid
invoices.
Transfer of Shares by XXX.
Prior to February 10, 2006, XXX shall deliver to Xxxxxxx X. Xxxxxx, Esq. a
stock power sufficient to allow transfer all shares of PES held by XXX to PES,
provided that PES has timely delivered the PEG Shares, the executed stock
power for those shares, and the PEG Note to Xxxxxxx X. Xxxxxx, Esq. as set
forth above. If the foregoing conditions are met, contemporaneously with the
transfer of the Second Payment, Xxxxxxx X. Xxxxxx, Esq. shall transfer the
foregoing shares to PES pursuant to the foregoing stock power. If the Second
Payment is not made, Xxxxxxx X. Xxxxxx shall return the foregoing shares to
XXX. It has acknowledged that XXX was never delivered any actual share
certificates by the PES shares held by XXX.
Non-Compete Agreement.
PES and Xxxxx agree that neither of them will directly or indirectly engage
in the business of providing downhole oil or gas well stimulation using the
patented secondary recovery technology licensed or sold by Bi-Comp, L.L.C.
("Bi-Comp") known as a thermal pulse unit (or "TPU") anywhere within the
United States or Canada for a period of five (5) years after the Effective
Date of this Agreement. For purposes of this Agreement, competition shall
include, but not be limited to, offering to license or sell such technology,
or to provide operating or other services related to such technology, either
directly or through any subsidiary or affiliate, which shall include any
company in which either PES or Xxxxx own at least a 1% equity interest on a
fully diluted basis. PES and Xxxxx agree that any violation of this provision
will result in irreparable injury to PEG and PEI, and accordingly agree to the
entry of preliminary and final injunctive relief in the event of any such
violation, without the requirement to prove irreparable injury and without
the requirement to post a bond or other undertaking. PES and Xxxxx further
agree that in the event it is found that either of them violated the terms
of this non-compete agreement the term of this agreement shall be extended
for a period equal to the period of such violation.
Dismissal of Civil Action.
Upon transfer of all of the monies, stock and the note referenced above,
Platina will dismiss the Civil Action with prejudice.
General Release.
With the exception of any action brought for purposes of enforcing this
Agreement, or claiming a breach of this Agreement, upon receipt of all of the
payments set forth above PEG, PES, PEI, Xxxxx and XXX release each other and
their executives, officers, partners, attorneys, agents, insurers and anyone
acting on their behalf from any and all claims, counterclaims, actions, causes
of action, liabilities, demands, rights, damages, costs, expenses, and
controversies of every kind and description whatsoever, with the exception of
any claims arising out of or relating to any breach of this Agreement (the
"Released Claims").
No Admission Of Liability.
The Parties agree that neither the payments being made pursuant to this
Agreement nor the releases being given herein reflect in any way any admission
of liability by any Party hereto, and further agree that neither the fact of
this Agreement nor its terms shall be deemed to be, or cited as, evidence of
any such admission.
Successors.
This Agreement and each term herein shall both bind and inure to the benefit
of the successors of the Parties, including without limitation all heirs,
personal representatives, and other successors of each Party.
No Assignment.
The Parties represent and warrant that they have not sold, assigned,
hypothecated or otherwise transferred any interest in any of the claims being
released pursuant to this Agreement, and that they have the full legal right
to dispose of the claims being released by this Agreement.
Entire Agreement.
This Agreement is the entire agreement between the Parties concerning the
subject matter hereof, and supersedes any and all representations, warranties,
or other statements or promises, if any, written or oral, which have been made
by or to the Parties, their attorneys, or their other agents in connection
with the negotiation or execution of this Agreement.
Amendment Or Waiver.
No change, amendment, or waiver of any of the terms or provisions of this
Agreement shall be valid or binding unless the change, amendment or waiver is
in writing signed by both of the Parties hereto.
Jurisdiction And Venue.
Venue and jurisdiction for any action arising out of or relating to this
Agreement shall lie exclusively in the District Court for the City and County
of Denver, State of Colorado. The Parties hereto expressly consent to personal
jurisdiction in such court for purposes of any such action, and waive any
objection thereto. The Parties further agree that the law of the State of
Colorado, exclusive of choice of law rules, shall govern the meaning and
effect of this Agreement, and shall be controlling in any action arising out
of or relating to this Agreement.
Counterparts and Facsimile Signatures.
This Agreement may be executed in counterparts, and such counterparts, taken
together, shall constitute a single agreement. Facsimile signatures affixed to
a counterpart shall have the force and effect of an original signature.
Attorney's Fees and Costs.
The prevailing party in any action brought to enforce this Agreement shall
recover its reasonable attorney's fees and costs. Otherwise, each Party shall
bear his own attorney's fees and costs incurred in connection with the
negotiation and execution of this Agreement and/or the Civil Action.
PLATINA ENERGY GROUP, INC.
By:
Its:_________________________________
Dated:______________________________
PERMIAN ENERGY INTERNATIONAL, INC.
By:
Its:_________________________________
Dated:______________________________
PERMIAN ENERGY SERVICES, L.P.
By:
Its:_________________________________
Dated:______________________________
XXXXXX X. XXXXX, individually
WYOMING ENERGY SERVICES, INC.
By:
Its:_________________________________
Dated:______________________________
____________________________________
Dated:______________________________
