GENERAL RELEASE AGREEMENT
Exhibit
10.5
This
GENERAL RELEASE
AGREEMENT (this “Agreement”), dated as
of this 2nd day of May, 2008, is entered into by and among Kentucky USA Energy,
Inc., formerly known as Las Rocas Mining Corp., a Delaware corporation
(“Seller”), Xxxxxxxxxxx Xxxxxxxxx (“Xxxxxxxxx” or “Buyer”), Las Rocas Leaseco,
Inc., a Delaware corporation (“Leaseco”), and KY USA Energy, Inc., a Kentucky
corporation (“KY USA”). In consideration of the mutual benefits to be derived
from this Agreement, the covenants and agreements set forth herein, and other
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the execution and delivery hereof, the parties hereto hereby
agree as follows:
1. Split-Off
Agreement. This Agreement is
executed and delivered by Leaseco pursuant to the requirements of Section 7.3 of
that certain Split-Off Agreement (the “Split-Off Agreement”) by and among
Seller, Leaseco, Buyer and KY USA, as a condition to the closing of the purchase
and sale transaction contemplated thereby (the “Transaction”).
2. Release
and Waiver by Leaseco. For and in
consideration of the covenants and promises contained herein and in the
Split-Off Agreement, the receipt and sufficiency of which are hereby
acknowledged, Leaseco, on behalf of itself and its assigns, representatives and
agents, if any, hereby covenants not to xxx and fully, finally and forever
completely releases Seller and KY USA, along with their respective present and
former officers, directors, stockholders, members, employees, agents, attorneys
and representatives (collectively, the “Seller Released Parties”), of and from
any and all claims, actions, obligations, liabilities, demands and/or causes of
action, of whatever kind or character, whether now known or unknown, which
Leaseco has or might claim to have against the Seller Released Parties for any
and all injuries, harm, damages (actual and punitive), costs, losses, expenses,
attorneys’ fees and/or liability or other detriment, if any, whenever incurred
or suffered by Leaseco arising from, relating to, or in any way connected with,
any fact, event, transaction, action or omission that occurred or failed to
occur at or prior to the closing of the Transaction.
3. Release
and Waiver by Buyer. For and in
consideration of the covenants and promises contained herein and in the
Split-Off Agreement, the receipt and sufficiency of which are hereby
acknowledged, Buyer hereby covenants not to xxx and fully, finally and forever
completely releases the Seller Released Parties of and from any and all claims,
actions, obligations, liabilities, demands and/or causes of action, of whatever
kind or character, whether now known or unknown, which Buyer has or might claim
to have against the Seller Released Parties for any and all injuries, harm,
damages (actual and punitive), costs, losses, expenses, attorneys’ fees and/or
liability or other detriment, if any, whenever incurred or suffered by Buyer
arising from, relating to, or in any way connected with, any fact, event,
transaction, action or omission that occurred or failed to occur at or prior to
the closing of the Transaction.
4. Additional Covenants and
Agreements.
(a) Each of
Leaseco and Buyer, on the one hand, and Seller and KY USA, on the other hand,
waives and releases the other from any claims that this Agreement was procured
by fraud or signed under duress or coercion so as to make this Agreement not
binding.
(b) Each of
the parties hereto acknowledges and agrees that the releases set forth herein do
not include any claims the other party hereto may have against such party for
such party’s failure to comply with or breach of any provision in this Agreement
or the Split-Off Agreement.
(c) Notwithstanding
anything contained herein to the contrary, this Agreement shall not release or
waive, or in any manner affect or void, any party’s rights and obligations under
the following:
(i) the
Split-Off Agreement; and
(ii) the
Agreement and Plan of Merger and Reorganization among Seller, KY USA, and KY
Acquisition Corp, a Delaware corporation and wholly owned subsidiary of
Seller.
5. Modification. This Agreement
cannot be modified orally and can only be modified through a written document
signed by both parties.
6. Severability. If any provision
contained in this Agreement is determined to be void, illegal or unenforceable,
in whole or in part, then the other provisions contained herein shall remain in
full force and effect as if the provision that was determined to be void,
illegal or unenforceable had not been contained herein.
1
7. Expenses. The parties
hereto agree that each party shall pay its respective costs, including
attorneys’ fees, if any, associated with this Agreement.
8. Entire
Agreement. This
Agreement constitutes the entire understanding and agreement of Seller, KY USA,
Buyer and Leaseco, and supersedes prior understandings and agreements, if any,
among or between Seller, KY USA, Buyer and Leaseco, with respect to the subject
matter of this Agreement, other than as specifically referenced herein. This
Agreement does not, however, operate to supersede or extinguish any
confidentiality, non-solicitation, non-disclosure or non-competition obligations
owed by Leaseco to Seller under any prior agreement.
IN WITNESS WHEREOF, the
undersigned have executed this General Release Agreement as of the day and year
first above written.
By: /s/ Xxxxxxxxxxx
Xxxxxxxxx
Name: Xxxxxxxxxxx
Xxxxxxxxx
Title: President
LAS
ROCAS LEASECO, INC.
By: /s/ Xxxxxxxxxxx
Xxxxxxxxx
Name: Xxxxxxxxxxx
Xxxxxxxxx
Title President
BUYER:
/s/ Xxxxxxxxxxx
Xxxxxxxxx
Xxxxxxxxxxx Xxxxxxxxx
KY
USA ENERGY, INC.
By: /s/ Xxxxxx X.
Xxxxxxxx
Name: Xxxxxx
X. Xxxxxxxx
Title: Chief
Executive Officer
2
