Exhibit 99.4
SETTLEMENT AND RELEASE AGREEMENT
THIS SETTLEMENT AND RELEASE AGREEMENT (this "AGREEMENT") is entered
into as of July 1, 2003 by and among AZTORE HOLDINGS, INC., an Arizona
corporation ("AZTORE"), DYNA-CAM ENGINE CORPORATION, a Nevada corporation (the
"COMPANY"), XXXXXXXX XXXXX ("XXXXX"), XXXXXX XXXXXX ("XXXXXX"), XXXXXX XXXXXX
("XXXXXX"), XXXXXXX XXXX ("HOPE"), DC ENGINES CORPORATION, a California
corporation ("DC"), and XXXXXX HOLDINGS, LTD., a Nevada corporation ("XXXXXX
HOLDINGS"). Wilks, Palmer, Claude, Hope, DC and Xxxxxx Holdings are hereinafter
referred to as the "XXXXXX PARTIES." All of the foregoing parties are referred
to herein as the "PARTIES" collectively and each as a "Party" individually.
RECITALS
A. The Company is a development stage company in the business of developing a
gasoline powered engine.
X. Xxxxx, Xxxxxx, Xxxxxx and Hope are subject to employment agreements,
including contractual and common law covenants of confidentiality,
non-competition, non-solicitation and non-interference, with the Company.
Xxxxxx Holdings is the largest shareholder of the Company. DC is an
affiliate of Xxxxx, Xxxxxx and Xxxxxx Holdings.
C. Aztore is an investment company and has loaned money to the Company.
D. The Company is in default on Aztore's loans and Aztore has arranged a
private sale of all the assets securing the Aztore loans (the "ASSETS").
E. The Xxxxxx Parties have an interest in the buyer of the Assets (the
"BUYER").
F. The Buyer requires that it acquire certain rights under the Xxxxxx
Agreements (as defined below) in connection with the acquisition of the
Assets.
AGREEMENTS
NOW, THEREFORE, in consideration of the promises and mutual agreements set
forth herein, the Parties, jointly and severally, and agree as follows:
1. RELEASE. Each Party hereto for itself and on behalf of its successors
and assigns, fully releases, quits and discharges each other Party and all their
officers and directors, employees, shareholders, members, consultants,
attorneys, accountants, other professionals, insurers, agents and all other
entities related to each Party, including but not limited to assigns,
controlling corporations, subsidiaries or other affiliates (jointly the "RELATED
PARTIES") from all rights, claims, demands, actions, causes of action (jointly,
the "CLAIMS"), which each Party now has or may have against the other Parties or
any of them arising from or related to the above recited facts; provided,
however, that "Claims" shall not include: (a) those rights and obligations
arising out of this Agreement and any agreements among the Parties subsequent to
the date hereof (the "REMAINING AGREEMENTS") or of the acts of each party in
caring out the obligations of the Remaining Agreements; (b) any wage claims
which Wilks, Palmer, Xxxxxx or Hope may have against the Company (the "WAGE
CLAIMS"); and (c) all obligations of Wikls, Xxxxxx, Xxxxxx or Hope as to
confidentiality, non-competition, non-solicitation, and non-interference
regarding the Company's Assets and operations, whether based in contract or
common law ("XXXXXX AGREEMENTS"). The Remaining Agreements specifically include
a Purchase and Settlement Agreement, of even date herewith among Aztore and
certain of the Xxxxxx Parties. Palmer, Wilks, Xxxxxx and Hope specifically
release the Company and any assignee of the Xxxxxx Agreements from any
obligation except the Wage Claims with respect to their employment with the
Company and acknowledge that the Company has no continuing obligation to any of
them with respect to employment except the Wage Claims. The Parties acknowledge
the amount due to the Wage Claims is no less than $95,000.
2. INDEMNIFICATION.
(a) The Xxxxxx Parties, jointly and severally, agree to indemnify, defend
and hold harmless the Company and Aztore and all their Related Parties from and
against all losses, actions, damages, liabilities and expenses, including
attorney's fees and costs arising from, related to or in connection with the
actions and omissions of the Xxxxxx Parties and/or their successors and assigns
that occur, or with respect to omissions, fail to occur, after the date hereof
or from any Claims made by any person through the Xxxxxx Parties.
(b) The Company agrees to indemnify, defend and hold harmless the Xxxxxx
Parties and all their Related Parties from and against all losses, actions,
damages, liabilities and expenses, including attorney's fees and costs arising
from, related to or in connection with the actions and omissions of the Company
and/or their successors and assigns that occur, or with respect to omissions,
fail to occur, after the date hereof or from any Claims made by any person
through the Company.
3. TAXES AND EXPENSES. Each Party shall bear all its own expenses,
including attorneys' fees, incurred in connection with this Agreement.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS. Each represents and warrants
to each other Party that:
(a) it has full power and authority to enter into this Agreement;
(b) it has not initiated any legal actions against any other Party with
respect to the Claims, or that any such legal actions that have been commenced
have been or will be promptly dismissed with prejudice; and
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(c) it has not assigned or otherwise transferred any Claims or Wage Claims
to any third party.
5. ADMISSION OT LIABILITY. Nothing in this Agreement shall be construed as
an admission of liability by any Party, and each Party specifically denies any
and all claims of liability or wrongdoing.
6. GOVERNING LAW; VENUE. This Agreement shall be governed by and construed
in accordance with the laws of the State of Arizona, without reference to choice
of law principles. The parties agree that the state and federal courts sitting
in Maricopa County, Arizona shall have sole jurisdiction and venue of any action
related to this Agreement.
7. SEVERABILITY. If any term or provision of this Agreement shall be found
by a court of competent jurisdiction to be invalid, illegal or otherwise
unenforceable, the same shall not effect the other terms or provisions hereof or
the whole of this Agreement, but such term or provision shall be deemed modified
to the extent necessary in the court's opinion to render such term or provision
enforceable, and the rights and obligations of the parties shall be construed
and enforced accordingly, preserving to the fullest permissible extent the
intent and agreements of the parties herein set forth.
8. NOTICE. Any notice or other communication given pursuant to this
Agreement shall be in writing and shall be effective either when delivered
personally to the party for whom intended, or five days following deposit of the
same into the United States mail (certified mail, return receipt requested, or
first class postage prepaid), addressed to such party at the address set forth
on the initial page of this Agreement. Either party may designate a different
address by notice to the other given in accordance herewith.
9. CONSTRUCTION. The parties hereto hereby acknowledge and agree that each
party has participated in the drafting of this Agreement and that this Agreement
has been, to the extent it was felt necessary, reviewed by the respective legal
counsel for the parties hereto and that the rule of construction to the effect
that any ambiguities are to be resolved against the drafting party will not be
applied to the interpretation of this Agreement. No inference in favor of, or
against, any party will be drawn from the fact that one party has drafted any
portion hereof.
10. ADVICE OF COUNSEL. Each Party hereby acknowledges that they are
entitled to and have been afforded the opportunity to consult legal counsel of
their choice regarding the terms and conditions and legal effects of this
Agreement, as well as the advisability and propriety thereof. Each party hereby
further acknowledges that having so consulted with legal counsel of their
choosing or having chosen not to consult, hereby waives any right to such legal
representation or effective representation and any right to raise or rely upon
the lack of representation or effective representation in any future proceedings
or in connection with any future claim.
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11. COMPLETE AGREEMENT; AMENDMENT. This Agreement sets forth the entire
understanding between the parties hereto and supercedes all prior agreements,
arrangements and communications, whether oral or written, with respect to the
subject matter hereof. No other agreements, representations, warranties or other
matters, whether oral or written, shall be deemed to bind the parties hereto
with respect to the subject matter hereof. This Agreement may not be modified or
amended except by the mutual written agreement of the parties.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
day and year first above written.
AZTORE HOLDINGS, INC. DYNA-CAM ENGINE CORPORATION
/s/ Xxxxxxx X. Xxxxxxxx /s/ Xxxx Xxxx
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By: Xxxxxxx X. Xxxxxxxx By: Xxxx Xxxx
Its: President Its: Xxxxxxxxx
XXXXXX HOLDINGS, LTD.
/s/ Xxxxxxxx Xxxxx /s/ Xxxxxx Xxxxxx
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By: Xxx Xxxxx Xxxxxx Xxxxxx
Its: President
/s/ Xxxxxxxx Xxxxx /s/ Xxxxxx Xxxxxx
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Xxxxxxxx Xxxxx Xxxxxx Xxxxxx
DC ENGINES CORPORATION
/s/ Xxxxxxx X. Hope /s/ Xxxxxxxx X. Xxxxx
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Xxxxxxx Xxxx By: Xxxxxxxx X. Xxxxx
Its: President
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