ESCROW AGREEMENT
This ESCROW AGREEMENT (the "Escrow Agreement") is entered into as of
January 6, 2000 by and between XXXXXX XXXX XXXXXXXX, an individual ("Xxxxxxxx"),
XXXXXX X. XXXXXX, an individual ("Xxxxxx"), LAKOTA TECHNOLOGIES, INC., a
Colorado corporation (together with its subsidiaries Lakota Oil and Gas, Inc., a
Texas corporation, 0-Xxxxxxxx.xxx, Inc., a Texas corporation, and AirNexus,
Inc., a Texas corporation referred to as "Lakota"), XXXXX XXXXXX, an individual
("Xxxxxx"), XXXXXXX "XXXX" XXXXXX, an individual ("Xxxxxx"), and MRC LEGAL
SERVICES CORPORATION, a California corporation doing business as Xxxxxx Law
Group, as escrow agent ("Escrow Agent"). Each of Honeyman, Wilson, Lakota,
Jalali, and Xxxxxx may be referred to as a "Party" and collectively as the
"Parties".
R E C I T A L S
X. Xxxxxxxx has entered into a Settlement Agreement of even date
herewith (the "Xxxxxxxx Settlement") with Lakota, Jalali, Morgan, and other
parties providing for the settlement of a dispute between the parties thereto;
X. Xxxxxx has entered into a Settlement Agreement of even date herewith
(the "Xxxxxx Settlement") with Lakota, Jalali, Morgan, and other parties
providing for the settlement of a dispute between the parties thereto;
C. As a condition to the Xxxxxxxx Settlement, Lakota has agreed to
deposit $25,000 (the "Xxxxxxxx Funds") with the Escrow Agent, along with an
aggregate of 2,000,000 shares of "restricted" common stock of Lakota issued in
the name of Xxxxxxxx or his assigns (the "Xxxxxxxx Shares"). In addition, as a
further condition to the Xxxxxxxx Settlement, Xxxxxx has agreed to deposit an
aggregate of 1,000,000 shares of common stock of Lakota (the "Xxxxxx Shares"),
together with a medallion guaranteed Stock Power sufficient to transfer all
right, title and interest in the Xxxxxx Shares to Xxxxxxxx, in form and
substance satisfactory to Xxxxxxxx, as shall be effective to vest in Xxxxxxxx
all right, title and interest in and to all of the Xxxxxx Shares;
D. As a condition to the Xxxxxx Settlement, Lakota has agreed to
deposit $25,000 (the Xxxxxx Funds") with the Escrow Agent, along with an
aggregate of 2,000,000 shares of "restricted" common stock of Lakota issued in
the name of Xxxxxx or his assigns (the "Xxxxxx Shares"). In addition, as a
further condition to the Xxxxxx Settlement, Xxxxxx has agreed to deposit an
aggregate of 1,000,000 shares of common stock of Lakota (the "Xxxxxx Shares"),
together with a medallion guaranteed Stock Power sufficient to transfer all
right, title and interest in the Xxxxxx Shares to Xxxxxx, in form and substance
satisfactory to Xxxxxx, as shall be effective to vest in Xxxxxx all right, title
and interest in and to all of the Xxxxxx Shares;
E. Escrow Agent has agreed to act as the escrow agent hereunder, in
accordance with the terms and conditions set forth in this Escrow Agreement.
NOW THEREFORE, for and in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, the parties hereto hereby agree
as follows:
1. APPOINTMENT OF ESCROW AGENT. The Parties hereby mutually appoint
and designate the Escrow Agent to receive, hold and release, as escrow agent,
the Xxxxxxxx Funds, Xxxxxxxx Shares, Xxxxxx Shares, Xxxxxx Funds, Xxxxxx Shares,
and the Xxxxxx Shares and the Escrow Agent hereby accepts such appointment and
designation.
2. ESCROW DELIVERY. Within five (5) days of the date of the Xxxxxxxx
Settlement and the Xxxxxx Settlement, (i) Lakota shall deliver the Xxxxxxxx
Funds, Xxxxxxxx Shares, Xxxxxx Funds and the Xxxxxx Shares, (ii) Xxxxxx shall
deliver the Xxxxxx Shares, and (iii) Xxxxxx shall deliver the Xxxxxx Shares, to
the Escrow Agent to be held by the Escrow Agent and released in accordance with
the terms of this Escrow Agreement.
3. CONDITIONS OF ESCROW.
3.1 The Escrow Deposit. Escrow Agent shall hold and release the
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Xxxxxxxx Funds, Xxxxxxxx Shares, Xxxxxx Funds, Xxxxxx Shares, Xxxxxx Shares, and
the Xxxxxx Shares (collectively, the "Deposited Assets") as follows:
a. Release of the Xxxxxxxx Funds and Xxxxxxxx Shares From Escrow. The
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Escrow Agent shall release and distribute the Xxxxxxxx Funds and the Xxxxxxxx
Shares to Xxxxxxxx, or his assigns, immediately upon the receipt by the Escrow
Agent of a fully executed copy of the Xxxxxxxx Settlement and the Xxxxxx Shares
(accompanied by a Stock Power as referenced above).
b. Release of the Xxxxxx Funds and Xxxxxx Shares From Escrow. The Escrow
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Agent shall release and distribute the Xxxxxx Funds and the Xxxxxx Shares to
Xxxxxx, or his assigns, immediately upon the receipt by the Escrow Agent of a
fully executed copy of the Xxxxxx Settlement and the Xxxxxx Shares (accompanied
by a Stock Power as referenced above).
c. Release of the Xxxxxx Shares From Escrow. The Escrow Agent shall release
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and distribute the Xxxxxx Shares as follows:
i. to Xxxxxx upon receipt by the Escrow Agent of proof of delivery of the
sum of $100,000 to Xxxxxxxx, or his assigns, from Lakota as set forth in section
2(A)(ii) of the Xxxxxxxx Settlement.
ii. to Xxxxxxxx, or his assigns, upon receipt by the Escrow Agent, after
March 11, 2000, of a written demand from Xxxxxxxx directing that the Xxxxxx
Shares be delivered to him, and containing representations, under penalty of
perjury, that the $100,000 had not previously been delivered to Xxxxxxxx.
iii. to Xxxxxxxx or Xxxxxx, as the case may be, pursuant to (a) written
instructions executed by both Xxxxxxxx and Xxxxxx, or (b) any "final order" of a
court of competent jurisdiction, any such order being deemed to be "final" if
(i) such order has not been reserved, stayed, enjoined, set aside, annulled or
suspended, (ii) no request for a stay, suspension or an injunction, petition for
reconsideration or appeal, or sua sponte action with comparable effect is
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pending with respect to the order, and (iii) the time for filing any such
request, petition or appeal or further taking of any such sua sponte action has
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expired.
d. Release of the Xxxxxx Shares From Escrow. The Escrow Agent shall release
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and distribute the Xxxxxx Shares as follows:
i. to Xxxxxx upon receipt by the Escrow Agent of proof of delivery of the
sum of $100,000 to Xxxxxx, or his assigns, from Lakota as set forth in section
2(A)(ii) of the Xxxxxx Settlement.
ii. to Xxxxxx, or his assigns, upon receipt by the Escrow Agent, after March
11, 2000, of a written demand from Xxxxxx directing that the Xxxxxx Shares be
delivered to him, and containing representations, under penalty of perjury, that
the $100,000 had not previously been delivered to Xxxxxx.
iii. to Xxxxxx or Xxxxxx, as the case may be, pursuant to (a) written
instructions executed by both Xxxxxx and Xxxxxx, or (b) any "final order" of a
court of competent jurisdiction, any such order being deemed to be "final" if
(i) such order has not been reserved, stayed, enjoined, set aside, annulled or
suspended, (ii) no request for a stay, suspension or an injunction, petition for
reconsideration or appeal, or sua sponte action with comparable effect is
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pending with respect to the order, and (iii) the time for filing any such
request, petition or appeal or further taking of any such sua sponte action has
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expired.
3.2 Conflicting Instructions. If a controversy arises between the Parties
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concerning the release of the Deposited Assets hereunder, they shall notify the
Escrow Agent. In that event (or, in the absence of such notification, if in the
good faith judgment of the Escrow Agent such controversy exists), the Escrow
Agent shall not be required to resolve such controversy or take an action but
shall be entitled to await resolution of the controversy by joint instructions
from the Parties. The Escrow Agent may institute an interpleader action in
state or federal court in the State of California to resolve such controversy.
If a suit is commenced against the Escrow Agent, it may answer by way of
interpleader and name the Parties as additional parties to such action, and the
Escrow Agent may tender the Deposited Assets into such court for determination
of the respective rights, titles and interests of the Parties. Upon such
tender, the Escrow Agent shall be entitled to receive from the Parties its
reasonable attorneys' fees and expenses incurred in connection with said
interpleader action or in any related action or suit. As between the Parties,
such fees, expenses and other sums shall be paid by the party which fails to
prevail in the proceedings brought to determine the appropriate distribution of
the Deposited Assets. If and when the Escrow Agent shall so interplead such
Parties, or either of them, and deliver the Deposited Assets to the clerk of
such court, all of its duties hereunder shall cease, and it shall have no
further obligation in this regard. Nothing herein shall prejudice any right or
remedy of the Escrow Agent.
4. CONCERNING ESCROW AGENT
4.1 Duties. Escrow Agent undertakes to perform all duties which are
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expressly set forth herein; provided, however, that the Escrow Agent shall not
be required to make or be liable in any manner of its failure to make any
determination under the Agreement or any other agreement, including whether any
of the Parties is entitled to delivery of the Deposited Assets under the
Xxxxxxxx Settlement or the Xxxxxx Settlement.
4.2 Indemnification.
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a. Escrow Agent may rely upon and shall be protected in acting or refraining
from acting upon any written notice, instructions or request furnished to it
hereunder and believed by it to be genuine and authorized.
b. Escrow Agent shall not be liable for any action taken by it in good faith
and without gross negligence or wilful misconduct, and believed by it to be
authorized or within the rights or powers conferred upon it by this Escrow
Agreement, and may consult with counsel of its own choice and shall have full
and complete authorization and protection for any action taken or suffered by it
hereunder in good faith and in accordance with the opinion of such counsel.
c. The Parties, and each of them, hereby agrees to indemnify the Escrow
Agent for, and hold the Escrow Agent harmless against, any loss, liability or
expense incurred without gross negligence or wilful misconduct or bad faith on
the part of the Escrow Agent, arising out of or in connection with the Escrow
Agent's entering into this Escrow Agreement and carrying out the Escrow Agent's
duties hereunder, including, without limitation, costs and expenses of defending
the Escrow Agent against any claim or liability with respect thereto.
d. Escrow Agent shall have no implied obligations or responsibilities
hereunder, nor shall it have any obligation or responsibility to collect funds
or seek the deposit of money or property, nor is the Escrow Agent a party to any
other agreement entered into among the Parties.
4.3 Other Matters. Escrow Agent (and any successor escrow agent or
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agents) reserves the right to resign as the Escrow Agent at any time, provided
fifteen (15) days' prior written notice is given to the other parties hereto,
and provided further that a mutually acceptable successor Escrow Agent(s) within
such fifteen (15) day period, the Escrow Agent may petition any court in the
State of California having jurisdiction to designate a successor Escrow Agent.
The resignation of the Escrow Agent (and any successor escrow agent or agents)
shall be effective only upon delivery of the Deposited Assets to the successor
escrow agent(s). The Parties reserve the right to jointly remove the Escrow
Agent at any time, provided fifteen (15) days' prior written notice is given to
the Escrow Agent. In the event of litigation or dispute by the Parties in which
the performance of the duties of the Escrow Agent is at issue, the Escrow Agent
shall take no action until such action is agreed in writing by the Parties, or
until receipt of any order pursuant to 3.1(c)iii or 3.1(d)iii above directing
the Escrow Agent with respect to the action which is the subject of such
litigation or dispute. Provided that no dispute occurs with respect to the
provisions and transactions contemplated in this Escrow Agreement, the Escrow
Agent's fee for acting as Escrow Agent in this transaction shall be $2,500.
5. TERMINATION. This Escrow Agreement shall be terminated upon the
release of the Deposited Assets in accordance with the terms and conditions of
Section 3 hereof, or otherwise by written mutual consent signed by all parties
hereto.
6. NOTICE. All notices, demands, requests, or other communications
which may be or are required to be given, served or sent by any party to any
other party pursuant to this Escrow Agreement shall be in writing and shall be
hand delivered (including delivery by courier), sent by facsimile, or mailed by
first-class, registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:
If to Xxxxxxxx: _____________________________
_____________________________
_____________________________
Facsimile (___) ___________
If to Xxxxxx: _____________________________
_____________________________
_____________________________
Facsimile (___) ___________
If to Lakota: _____________________________
_____________________________
_____________________________
Facsimile (___) ___________
If to Xxxxxx: _____________________________
_____________________________
_____________________________
Facsimile (___) ___________
If to Xxxxxx: _____________________________
_____________________________
_____________________________
Facsimile (___) ___________
If to Escrow Agent: MRC Legal Services Corporation
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxx, Esq.
Facsimile (000) 000-0000
or such other address as the addressee may indicate by written notice to the
other parties. Each notice, demand, request or communication which shall be
given or made in the manner described above shall be deemed sufficiently given
or made for all purposes at such time as it delivered to the addressee (with the
return receipt, the delivery receipt or the affidavit of messenger being deemed
conclusive but not exclusive evidence of such delivery) or at such time as
delivery is refused by the addressee upon presentation.
7. BENEFIT AND ASSIGNMENT. This Escrow Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and assigns as permitted hereunder. No person or entity other than
the parties hereto is or shall be entitled to bring any action to enforce any
provision in this Escrow Agreement against any of the parties hereto, and the
covenants and agreements set forth in this Escrow Agreement shall be solely for
the benefit of, and shall be enforceable only by, the parties hereto or their
respective successors and assigns this Escrow Agreement or any rights hereunder
without the prior written consent of the parties hereto.
8. ENTIRE AGREEMENT; AMENDMENT. This Escrow Agreement, the Xxxxxxxx
Settlement, and the Xxxxxx Settlement executed simultaneously herewith contain
the entire agreement among the parties with respect to the subject matter hereof
and supersedes all prior oral or written agreements, commitments or
understandings with respect to such matters. This Escrow Agreement may not be
changed orally, but only by an instrument in writing signed by the party against
whom enforcement of any waiver, change, modification, extension or discharge is
sought.
9. HEADINGS. The headings of the sections and subsections contained in
this Escrow Agreement are inserted for convenience only and do not form a part
or affect the meaning, construction or scope thereof.
10. GOVERNING LAW; VENUE. This Escrow Agreement shall be governed and
constructed under and in accordance with the laws of the State of California
(but not including the conflicts of laws and rules thereof). For purposes of
any action or proceeding involving this Escrow Agreement each of the parties to
this Escrow Agreement expressly submits to the jurisdiction of the federal and
state courts located in the State of California and consents to the service of
any process or paper by registered mail or by personal service within or without
the State of California in accordance with applicable law, provided a reasonable
time for appearance is allowed.
11. SIGNATURE IN COUNTERPARTS. This Escrow Agreement may be executed
in separate counterparts, none of which need contain the signature of all
parties, each of which shall be deemed to be an original and all of which taken
together constitute one and the same instrument. It shall not be necessary in
making proof of this Escrow Agreement to produce or account for more than the
number of counterparts containing the respective signatures of, or on behalf of,
all of the parties hereto.
12. ATTORNEY'S FEES. Should any action be commenced between the
parties to this Agreement concerning the matters set forth in this Agreement or
the right and duties of either in relation thereto, the prevailing party in such
action shall be entitled, in addition to such other relief as may be granted, to
a reasonable sum as and for its Attorney's Fees and Costs.
IN WITNESS WHEREOF, each of the parties has caused this Escrow Agreement to
be duly executed and delivered in its name and on its behalf, all as of the date
and year first above written.
Dated: XXXXXX XXXX XXXXXXXX, an individual
/s/ Xxxxxx Xxxx Xxxxxxxx
______________________________________
Dated: XXXXXX X. XXXXXX, an individual
/s/ Xxxxxx X. Xxxxxx
______________________________________
Dated: LAKOTA TECHNOLOGIES, INC.
/s/ Xxxxx Xxxxxx
______________________________________
By: Xxxxx Xxxxxx, on behalf of the
Board of Directors
Dated: XXXXX XXXXXX, an individual and as a
Director of Lakota Technologies, Inc.
/s/ Xxxxx Xxxxxx
______________________________________
Dated: XXXXXXX "CODY" XXXXXX, an individual and as
a Director of Lakota Technologies, Inc.
/s/ Partick "Cody" Xxxxxx
______________________________________
Dated: MRC LEGAL SERVICES CORPORATION
/s/ M. Xxxxxxx Xxxxxx
______________________________________
By: M. Xxxxxxx Xxxxxx
Its: President
