GENERAL RELEASE AGREEMENT
Exhibit
10.2
This
GENERAL RELEASE
AGREEMENT (this “Agreement”), dated as
of July 2, 2008, is entered into by and among ProMana Solutions, Inc., a Nevada
corporation (“Seller”), Pro Mana Technologies, Inc., a New Jersey corporation
(“Split-Off Subsidiary”), Crownbutte Wind Power, Inc., a North Dakota
corporation (“Crownbutte”), and Xxxxxx X. Xxxxx and Xxxxxxxx X. Xxxx (each, a
“Buyer” and collectively, the “Buyers”). 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, Crownbutte and Buyers, 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 Crownbutte, 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, each 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 such 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 such 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 and Crownbutte,
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, Crownbutte and
Crownbutte Acquisition Sub Inc., a North Dakota 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.
7. Expenses. The parties
hereto agree that each party shall pay its respective costs, including
attorneys’ fees, if any, associated with this Agreement.
8. 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.
9. Entire
Agreement. This
Agreement constitutes the entire understanding and agreement of Seller,
Split-Off Subsidiary, Crownbutte and Buyers and supersedes prior understandings
and agreements, if any, among or between Seller, Split-Off Subsidiary,
Crownbutte and Buyers 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.
2
IN WITNESS WHEREOF, the
undersigned have executed this General Release Agreement as of the day and year
first above written.
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PROMANA
SOLUTIONS, INC.
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By:
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/s/ Xxxx
Xxxxx
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Name:
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Xxxx
Xxxxx
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Title:
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Chief
Executive Officer
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PRO
MANA TECHNOLOGIES, INC.
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By:
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/s/ Xxxx
Xxxxx
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Name:
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Xxxx
Xxxxx
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Title
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President
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By:
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/s/ Xxxxxxx X.
Xxxxxx
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Name:
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Xxxxxxx
X. Xxxxxx
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Title:
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Chief
Executive Officer
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BUYERS:
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/s/ Xxxxxx X. Xxxxx
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Xxxxxx
X. Xxxxx
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/s/ Xxxxxxxx X. Xxxx
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Xxxxxxxx
X.
Xxxx
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