GENERAL RELEASE AGREEMENT
This
GENERAL RELEASE
AGREEMENT (this “Agreement”), dated as of August 31, 2009, is entered
into by and among Mesa Energy
Holdings, Inc., a Delaware corporation (“Seller”), Mesquite Mining Group,
Inc., a Delaware corporation (“Split-Off Subsidiary”), and Xxxxxxx Xxxxxxxxx
(“Buyer”). 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 Split-Off Subsidiary pursuant to the requirements of
Section 8.3 of that certain Split-Off Agreement (the “Split-Off Agreement”) by
and among Seller, Split-Off Subsidiary and Buyer, as a condition to the closing
of the purchase and sale transaction contemplated thereby (the
“Transaction”).
2. Release
and Waiver by Split-Off Subsidiary. 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, Split-Off Subsidiary, 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 Mesa Energy, Inc., a Nevada
corporation (“Mesa”), 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
Split-Off Subsidiary 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 Split-Off Subsidiary 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 Split-Off Subsidiary and Buyer, on the one hand, and Seller, 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 (the “Merger Agreement”) among
Seller, Mesa and Mesa Energy Acquisition Corp., a Nevada corporation and wholly
owned subsidiary of Seller,and the other the Transaction
Documentation.
5. Modification. This Agreement
cannot be modified orally and can only be modified through a written document
signed by all parties and Mesa.
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.
7. Expenses. The parties
hereto agree that each party shall pay its respective costs, including
attorneys’ fees, if any, associated with this Agreement.
8. Further
Acts and Assurances. Each of Split-Off Subsidiary and Buyer
agrees that it will act in a manner supporting compliance, including compliance
by its Affiliates, with all of its obligations under this Agreement and, from
time to time, shall, at the request of Seller or Mesa, and without further
consideration, cause the execution and delivery of such other instruments of
release or waiver and take such other action or execute such other documents as
such party may reasonably request in order to confirm or effect the releases,
waivers and covenants contained herein, and, in the case of any claims, actions,
obligations, liabilities, demands and/or causes of action that cannot be
effectively released or waived without the consent or approval of other Persons
that is unobtainable, to use its best reasonable efforts to ensure that the
Seller Released Parties receive the benefits thereof to the maximum extent
permissible in accordance with applicable law or other applicable restrictions,
and shall perform such other acts which may be reasonably necessary to
effectuate the purposes of this Agreement.
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9. Governing
Law. This Agreement
shall be governed by and construed in accordance with the laws of the State of
New York, without giving effect to principles of conflicts or choice of laws
thereof.
10. Third-Party
Beneficiary. Each of Seller, Buyer and Split-Off Subsidiary
acknowledges and agrees that this Agreement is entered into for the express
benefit of Mesa, and that Mesa is relying hereon and on the consummation of the
transactions contemplated by this Agreement in entering into and performing its
obligations under the Merger Agreement, and that Mesa shall be in all respects
entitled to the benefit hereof and to enforce this Agreement as a result of any
breach hereof.
11. Specific
Performance; Remedies. Each of Seller, Buyer and Split-Off
Subsidiary acknowledges and agrees that Mesa would be damaged irreparably if any
provision of this Agreement is not performed in accordance with its specific
terms or is otherwise breached. Accordingly, each of Seller, Buyer and Split-Off
Subsidiary agrees that Mesa will be entitled to seek an injunction or
injunctions to prevent breaches of the provisions of this Agreement and to
enforce specifically this Agreement and its terms and provisions in any action
instituted in any court of the United States or any state thereof having
jurisdiction over the parties and the matter, subject to Section 9 hereof, in
addition to any other remedy to which they may be entitled, at law or in equity.
Except as expressly provided herein, the rights, obligations and remedies
created by this Agreement are cumulative and are in addition to any other
rights, obligations or remedies otherwise available at law or in equity, and
nothing herein will be considered an election of remedies.
12. Entire
Agreement. This
Agreement constitutes the entire understanding and agreement of Seller,
Split-Off Subsidiary and Buyer and supersedes prior understandings and
agreements, if any, among or between Seller, Split-Off Subsidiary and Buyer 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 Split-Off Subsidiary to Seller under any
prior agreement.
13. Definitions. Capitalized terms
used herein without definition have the meanings ascribed to them in the Merger
Agreement.
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IN WITNESS WHEREOF, the
undersigned have executed this General Release Agreement as of the day and year
first above written.
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By:
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/s/ Xxxxxxx Xxxxxxxxx
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Name: Xxxxxxx
Xxxxxxxxx
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Title: President
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MESQUITE
MINING GROUP, INC.
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By:
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/s/ Xxxxxxx Xxxxxxxxx
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Name: Xxxxxxx
Xxxxxxxxx
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Title: President
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BUYER:
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/s/ Xxxxxxx Xxxxxxxxx
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Xxxxxxx
Xxxxxxxxx
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