AGREEMENT AND GENERAL MUTUAL RELEASE
This Agreement ("Agreement") is entered into as of this 3rd day of
February, 2000 (the "Effective Date"), by and between XXXX X. XXXXX, an
individual (hereinafter referred to as "Xxxxx"), on one hand, and LAKOTA
TECHNOLOGIES, INC., a Colorado corporation (hereinafter referred to, along with
its subsidiaries Lakota Oil and Gas, Inc., a Texas corporation, 0-Xxxxxxxx.xxx,
Inc., a Texas corporation, and AirNexus, Inc., a Texas corporation, as
"Lakota"), XXXXX XXXXXX, an individual (hereinafter referred to as "Xxxxxx"),
and XXXXXXX "XXXX" XXXXXX, an individual (hereinafter referred to as "Xxxxxx").
Each of Hayes, Lakota, Xxxxxx, and Xxxxxx shall be referred to as a "Party" and
collectively as the "Parties".
RECITALS
A. WHEREAS, the Parties desire to enter into this agreement regarding
(i) Xxxxx' continued employment by Lakota, (ii) his position as an officer and
director of Lakota, and (iii) compensation and other consideration due and owing
between Lakota and Xxxxx (the "Matters").
B. The Parties desire, pursuant to the terms of this Agreement, to
settle the Matters and all disputes between Xxxxx and the other Parties.
NOW, THEREFORE, for good and adequate consideration, the receipt of which
is hereby acknowledged, without admitting or denying any wrongdoing by any Party
hereto, the Parties covenant, promise and agree as follows:
AGREEMENT
1. Obligations of Xxxxx. As a material term of this Agreement, Xxxxx
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agrees to the following:
A. Resignations. As evidenced by his execution hereof, Xxxxx hereby
resigns, effective as of the Effective Date, as an employee, officer, and
director of Lakota and each of its subsidiaries. Xxxxx further covenants and
agrees, except as set forth in this Agreement, to release the Parties hereto,
and each of them, their attorneys, agents and assigns, from any and all
obligations with respect to salary, severance, benefits, indebtedness to or from
the Parties and each of them, and any and all other obligations which may now or
in the future be owed to Xxxxx. Xxxxx further agrees to return any and all
documents, correspondence, books, records, keys, and other items in his
possession belonging to Lakota within ten (10) days of the Effective Date.
B. Discharge of Indebtedness. As evidenced by his execution hereof, except
as otherwise provided herein, Xxxxx hereby waives and forgives any amounts owing
to him by Lakota.
D. Release of Lakota, Jalali, and Xxxxxx. Xxxxx hereby forever releases and
discharges Lakota, Jalali, and Xxxxxx, and each of them, their affiliates,
divisions, predecessors, successors and assigns, and each and all of their
present and former agents, officers, directors, attorneys, and employees, from
and against any and all claims, agreements, contracts, covenants,
representations, obligations, losses, liabilities, demands and causes of action,
known or unknown, which Xxxxx may now or hereafter have or claim to have against
them, arising out of or pertaining to the subject matter of the Matters or any
dispute or claim arising out of acts or omissions thereby. Xxxxx further
covenants and agrees, except as set forth in this Agreement, to release the
Parties hereto, and each of them, their affiliates, divisions, predecessors,
successors and assigns, and each and all of their present and former agents,
officers, directors, attorneys, and employees from any and all obligations with
respect to salary, severance, securities, benefits, indebtedness to or from the
Parties and each of them, and any and all other obligations which may now or in
the future be owed to Xxxxx. This release of claims and defenses shall not
alter the prospective duties between the parties under this Agreement.
2. Obligations of Lakota.
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A. Obligations of Lakota.
(i) Within five (5) days of the date hereof, Lakota shall deliver to Xxxxx
an aggregate of 3,500,000 shares of "restricted" common stock of Lakota,
2,500,000 of which will be registered on Form S-8 as soon as reasonably
possible.
(ii) As evidenced by its execution hereof, Lakota hereby forever waives and
forgives any amounts owing to it by Xxxxx.
(iii) In the event an "Indemnifiable Action" (as hereinafter defined) is
brought against Xxxxx at any time, then Lakota agrees to indemnify Xxxxx for any
and all liabilities related to or arising from the Indemnifiable Action (the
"Indemnified Liabilities"). Indemnifiable Action shall mean a legal cause of
action commenced and physically served on Xxxxx which names Xxxxx as a party,
related to or arising from his relationship (whether past, present or future) as
an employee, consultant, officer and/or director of Lakota or any of its current
or pre-existing subsidiaries. The foregoing indemnification shall further be
subject to the requirement that in the event Xxxxx becomes actually aware of an
Indemnifiable Action, he shall have Five (5) business days to deliver written
notice to Lakota of his intention to enforce the terms of this Agreement.
(iv) Lakota hereby forever releases and discharges Xxxxx, his affiliates,
divisions, predecessors, successors and assigns, and each and all of his present
and former agents, officers, directors, attorneys, and employees, from and
against any and all claims, agreements, contracts, covenants, representations,
obligations, losses, liabilities, demands and causes of action, known or
unknown, which Lakota may now or hereafter have or claim to have against Xxxxx
arising out of or pertaining to the subject matter of the Matters. This release
of claims and defenses shall not alter the prospective duties between the
parties under this Agreement.
4. Scope of Release. Each Party acknowledges and agrees that this
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Agreement applies to all claims that any Party may have against the other Party
relating to the subject matter of the Matters, including, but not limited to,
causes of action, injuries, damages, claims for costs or losses to any Party's
person and property, real or personal, whether those injuries, damages, or
losses are known or unknown, foreseen or unforseen, or patent or latent, and
further includes any and all acts and matters related to Xxxxx'x involvement
with Lakota as an employee, consultant, officer and/or director. This Agreement
is not intended to, nor shall it, alter or modify any rights or obligations of
the Parties under any other agreements not mentioned herein to which the Parties
may be a party.
5. Confidentiality. Each Party hereto will hold and will cause its
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consultants and advisors to hold in strict confidence, unless compelled to
disclose by judicial or administrative process or, in the opinion of its
counsel, by other requirements of law, all documents and information concerning
any other Party furnished it by such other Party or its representatives in
connection with the subject matter of the Matters (except to the extent that
such information can be shown to have been (i) previously known by the Party to
which it was furnished, (ii) in the public domain through no fault of such
Party, or (iii) later lawfully acquired from other sources by the Party to which
it was furnished), and each Party will not release or disclose such information
to any other person, except its auditors, attorneys, financial advisors, bankers
and other consultants and advisors in connection with this Agreement. Each
Party shall be deemed to have satisfied its obligation to hold confidential
information concerning or supplied by the other Party if it exercises the same
care as it takes to preserve confidentiality for its own similar information.
6. No Representations. Each Party acknowledges and represents that, in
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executing this Agreement, such Party has not relied on any inducements,
promises, or representations made by any Party or any party representing or
serving such Party, unless expressly set forth herein.
7. Disputed Claim. This Agreement pertains to a disputed claim and
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does not constitute an admission of liability by any Party for any purpose.
8. Covenant Re: Assignment. The Parties hereto, and each of them,
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represent and warrant to each other that each is the sole and lawful owner of
all right, title and interest in and to every claim and other matter which each
purports to release herein, and that they have not heretofore assigned or
transferred, or purported to assign or transfer, to any person, firm,
association, corporation or other entity, any right, title or interest in any
such claim or other matter. In the event that such representation is false,
and any such claim or matter is asserted against any Party hereto (and/or the
successor of such Party) by any Party or entity who is the assignee or
transferee of such claim or matter shall fully indemnify, defend and hold
harmless the Party against who such claim or matter is asserted (and its
successors) from and against such claim or matter and from all actual costs,
fees, expenses, liabilities, and damages which that Party (and/or its
successors) incurs as a result of the assertion of such claim or matter.
9. Survival of Warranties. The representations and warranties
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contained in this Agreement are deemed to and do survive the execution hereof.
10. Modifications. This Agreement may not be amended, canceled,
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revoked or otherwise modified except by written agreement subscribed by all of
the Parties to be charged with such modification.
11. Agreement Binding on Successors. This Agreement shall be binding
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upon and shall inure to the benefit of the Parties hereto and their respective
partners, employees, agents, servants, heirs, administrators, executors,
successors, representatives and assigns.
12. Attorney's Fees. All Parties hereto agree to pay their own costs
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and attorneys' fees except as follows:
(a) In the event of any action, suit or other proceeding instituted to
remedy, prevent or obtain relief from a breach of this Agreement, arising out of
a breach of this Agreement, involving claims within the scope of the releases
contained in this Agreement, or pertaining to a declaration of rights under this
Agreement, the prevailing Party shall recover all of such Party's attorneys'
fees and costs incurred in each and every such action, suit or other proceeding,
including any and all appeals or petitions therefrom.
(b) As used herein, attorneys' fees shall be deemed to mean the full
and actual costs of any legal services actually performed in connection with the
matters involved, calculated on the basis of the usual fee charged by the
attorneys performing such services.
13. Choice of Law; Venue. This Agreement and the rights of the parties
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hereunder shall be governed by and construed in accordance with the laws of the
State of Texas, including all matters of construction, validity, performance,
and enforcement and without giving effect to the principles of conflict of laws.
Any cause of action brought in connection with this Agreement shall be brought
in Xxxxxx County, in the State of Texas.
14. Terms & Conditions. The Parties agree and stipulate that each
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and every term and condition contained in this Agreement is material, and that
each and every term and condition may be reasonably accomplished within the time
limitations, and in the manner set forth in this Agreement.
15. Time is of the Essence. The Parties agree and stipulate that time
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is of the essence with respect to compliance with each and every item set forth
in this Agreement.
16. Entire Agreement. This Agreement and the Escrow Agreement set
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forth the entire agreement and understanding of the Parties hereto and
supersedes any and all prior agreements, arrangements and understandings related
to the subject matter hereof. No understanding, promise, inducement, statement
of intention, representation, warranty, covenant or condition, written or oral,
express or implied, whether by statute or otherwise, has been made by any party
hereto which is not embodied in this Agreement or the written statements,
certificates, or other documents delivered pursuant hereto or in connection with
the transactions contemplated hereby, and no Party hereto shall be bound by or
liable for any alleged understanding, promise, inducement, statement,
representation, warranty, covenant or condition not so set forth.
17. Counterparts. This Agreement may be executed in one or more
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counterparts, each of which when executed and delivered shall be an original,
and all of which when executed shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties hereto, agreeing to be bound hereby,
execute this Agreement upon the date first set forth above.
Dated: XXXX X. XXXXX, an individual
/s/ Xxxx X. Xxxxx
______________________________________
Dated: LAKOTA TECHNOLOGIES, INC.
/s/ Xxxxx Xxxxxx
______________________________________
By: Xxxxx Xxxxxx, CEO
Dated: XXXXX XXXXXX, an individual and as a
Director of Lakota Technologies, Inc.
/s/ Xxxxx Xxxxxx
______________________________________
Dated: XXXXXXX "XXXX" XXXXXX, an individual and as
a Director of Lakota Technologies, Inc.
/s/ Partick "Cody" Xxxxxx
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