EXHIBIT 10.38
RELEASE AND PARTIAL TERMINATION AGREEMENT
THIS RELEASE AND PARTIAL TERMINATION AGREEMENT (the "Release") is made and
entered into this the 22nd day of April, 1997 by and among X.X. Xxxxxx
("Xxxxxx"), on the one hand, and Zeotech Industries, Inc. ("Zeotech"), Xx
Xxxxxxx ("Hemsted"), KJM Capital Corp. ("KJM"), Xxxxx X. XxXxxxxx ("XxXxxxxx"),
Xxxx X. Xxxxxxxx, Xx. ("Xxxxxxxx"), LS Capital Corporation, a Delaware
corporation ("LS Capital"), and Xxxxxxx Gold Group, Inc., a Delaware corporation
("Xxxxxxx"), on the other hand. For purposes of this Agreement, Zeotech,
Hemsted, KJM, McKenzie, Lovelace, LS Capital and Xxxxxxx are referred to
hereinafter singly as a "Remaining Party" and collectively as the "Remaining
Parties."
Recitals
WHEREAS, Xxxxxx and each Remaining Party entered into an Agreement (the
"Agreement") dated October 31, 1996 regarding the contribution of certain mining
claims to Xxxxxxx, the issuance of certain shares of stock in Xxxxxxx, the
issuance of certain shares of stock in LS Capital, additional capital
contributions to Xxxxxxx, the registration with the United States Securities and
Exchange Commission of certain shares of stock in Xxxxxxx owned by LS Capital,
the declaration by LS Capital of an in-kind dividend to its stockholders of the
shares so registered, and various additional matters; and
WHEREAS, Xxxxxx and each Remaining Party want to terminate Xxxxxx'
status as a party to the Agreement and his rights and obligations thereunder,
but leave unaltered the Remaining Parties' status as parties to the Agreement
and their respective rights and obligations thereunder;
Agreement
NOW, THEREFORE, in consideration of (a) the mutual promises and
agreements herein contained, (b) $10.00 and (c) other good and valuable
consideration (the receipt, sufficiency and adequacy of the consideration
recited in (a), (b) and (c) immediately preceding are hereby acknowledged and
confessed by each party hereto), each party hereto hereby agrees as follows:
1. Xxxxxx hereby acknowledges that he received 166,666 shares of the
common stock of LS Capital pursuant to the Agreement. Xxxxxx does hereby assign,
transfer and convey to Hemsted, without any further deed or act, full right,
title and interest in and to the foregoing 166,666 shares of the common stock of
LS Capital, free and clear of all liens, mortgages, security interests,
encumbrances, claims and restrictions on the transfer thereof. Xxxxxx hereby
further acknowledges that the Agreement provided that he was to receive
1,250,000 shares of the common stock of Xxxxxxx, although Xxxxxx has not yet
been issued such shares. Notwithstanding any other provisions contained herein,
Xxxxxx does hereby assign, transfer and convey to Xxxxxxx Xxxxxxx and Xxxxxxx,
without any further deed or act, full right, title and interest in and to 90%
and 10%, respectively, of the shares of the common stock of Xxxxxxx that he was
to receive pursuant to the term, provisions and conditions of the Agreement,
free and clear of all liens, mortgages, security interests, encumbrances, claims
and restrictions on the transfer thereof. Xxxxxx hereby agrees that he will
execute and deliver, or cause to be executed and delivered, from time to time
after the date hereof, upon the request of Hemsted or Xxxxxxx (as the case may
be), such other instruments of assignment, transfer and conveyance and will take
such other action as Hemsted or Xxxxxxx (as the case may be) may reasonably
require to effectuate and/or evidence the assignments, transfers and conveyances
provided for herein. Xxxxxx hereby represents and warrants to Hemsted and
Xxxxxxx that the execution by Xxxxxx and delivery to Hemsted and Xxxxxxx of this
Release and related documentation will vest in Hemsted and Xxxxxxx full right,
title and interest in and to the shares of common stock purported to be
assigned, transferred and conveyed to them above, free and clear of any and all
encumbrances, security interests, liens, charges, claims, restrictions or
limitations, whatsoever, by any person of any kind, including those on the
transfer thereof, whether known or unknown.
2. Xxxxxx' status as a party to the Agreement be and hereby is
terminated effective upon the execution and delivery of this Release, and
henceforth Xxxxxx shall have no further rights, liabilities, obligations, duties
or responsibilities with respect to the Agreement. Notwithstanding the preceding
or anything else contained herein, the Remaining Parties' status as parties to
the Agreement, and their respective rights, liabilities, obligations, duties and
responsibilities with respect thereto, remain unaffected by this Release.
3. By execution of this Release, Xxxxxx represents and warrants to each
of the Remaining Parties that he has not conveyed, assigned, or in any manner
transferred, in whole or in part, to any third party any right, title or
interest that he has heretofore held under the Agreement. Xxxxxx expressly
represents and warrants to the Remaining Parties that he has full authority to
enter into this Release and to terminate his status as a party to the Agreement
and his rights, liabilities, obligations, duties and responsibilities with
respect thereto.
4. Xxxxxx (and each of Xxxxxx' heirs, beneficiaries, legal
representatives, affiliates, agents, successors and assigns) has this day
released and by these presents does
release, acquit and forever discharge each of the Remaining Parties (and their
respective heirs, beneficiaries, legal representatives, affiliates,
shareholders, directors, officers, employees, agents, successors and assigns)
from any and all Claims. For purposes of this Release, "Claims" means all
demands, complaints, claims, rights, actions, causes of actions, suits,
proceedings, damages, judgments, costs, expenses, compensation, promises,
agreements, debts, liabilities and obligations of any kind whatsoever, at common
law, by statute, contract, or otherwise, which a releasing party now has or
might have, or in the part had or might have had, against a released party,
known or unknown, directly or indirectly relating to the Agreement.
5. By execution of this Release, Xxxxxx represents and warrants to each
of the Remaining Parties that no Claim that he now has or might have, or in the
part had or might have had, against any person released hereby, has previously
been conveyed, assigned, or in any manner transferred, in whole or in part, to
any third party. Xxxxxx expressly represents and warrants to each of the
Remaining Parties that he has full authority to enter into this Release and to
release any and all Claims he now has or might have, or in the part had or might
have had, against each person released hereby.
6. THIS RELEASE SHALL BE GOVERNED BY, CONSTRUED UNDER, AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
7. It is expressly understood and agreed that the terms of this Release
are contractual and not merely recitations.
8. It is further understood and agreed that this Release contains the
entire agreement between Xxxxxx and each Remaining Party pertaining to the
subject matter hereof and supersedes any and all prior agreements, arrangements,
or understandings between Xxxxxx and each Remaining Party pertaining to the
subject matter hereof. No oral understandings, statements, promises, or
inducements contrary to the terms of this Release exist. This Release cannot be
changed or terminated except in writing signed by all parties hereto.
9. Should any court, by judgment or decree, determine that this Release
does not fully and finally discharge all Claims which a releasing party now has
or might have, or in the part had or might have had, against a released party,
prior to the date of this Release, then each releasing party hereby agrees to
reform this document to release any such Claims not hereby released.
IN WITNESS WHEREOF, the undersigned have set their hands hereunto
effective as of the first date written above.
"XXXXXX"
/S/X.X. Xxxxxx, PhD., P.Eng.
X.X. Xxxxxx, PhD., P.Eng.
"REMAINING PARTIES"
ZEOTECH INDUSTRIES, INC.
By: /S/ Xx Xxxxxxx, by power of attorney /S/ Xx Xxxxxxx
Xx Xxxxxxx
Name Printed: Xx Xxxxxxx
Title: President
KJM CAPITAL CORP.
By:/S/ X.X. XxXxxxxx /S/ X.X. XxXxxxxx
Xxxxx X. XxXxxxxx
Name Printed: Xxxxx X. XxXxxxxx
Title: President
XXXXXXX GOLD GROUP, INC.
By: /S/ Xxxx X. Xxxxxx /S/Xxxx X. Xxxxxxxx, Xx.
Xxxx X. Xxxxxxxx, Xx.
Name Printed: Xxxx X Xxxxxx
Title: Vice President
LS CAPITAL CORPORATION
By: /S/ Xxxx X. Xxxxxx
Name Printed: Xxxx X Xxxxxx
Title: President
CERTIFICATE
Each of the undersigned hereby certifies and acknowledges that the
undersigned has signed and executed the foregoing agreement with multiple
original signature pages at separate locations to be effective immediately upon
signing and that the transmission of a telecopier facsimile of their respective
signatures, each to the other, shall be sufficient to cause the mutual delivery
of this executed agreement in order to bind the parties and make the agreement
effective upon the date of signing. It is further certified, acknowledged and
agreed that the original signature pages are to be circulated hereafter but that
the failure of any party to obtain the original signature pages hereafter shall
not affect the validity and effectiveness of this agreement which is effective
from and after the execution by all parties and the transmission by telecopier
facsimile of the signature of all parties, each to the other.
IN WITNESS WHEREOF, the parties hereto have signed their names hereto
as of the first date written above.
/S/ Xx Xxxxxxx, by power of attorney
X.X. Xxxxxx, PhD., P.Eng.
ZEOTECH INDUSTRIES, INC.
By: /S/ Xx Xxxxxxx /S/ Xx Xxxxxxx
Xx Xxxxxxx
Name Printed: Xx Xxxxxxx
Title: President
KJM CAPITAL CORP.
By:/S/ X.X. XxXxxxxx /S/ X.X. XxXxxxxx
Xxxxx X. XxXxxxxx
Name Printed: Xxxxx X. XxXxxxxx
Title: President
XXXXXXX GOLD GROUP, INC.
By: /S/ Xxxx X. Xxxxxx /S/Xxxx X. Xxxxxxxx, Xx.
Xxxx X. Xxxxxxxx, Xx.
Name Printed: Xxxx X Xxxxxx
Title: Vice President
LS CAPITAL CORPORATION
By: /S/ Xxxx X. Xxxxxx
Name Printed: Xxxx X Xxxxxx
Title: President
