Exhibit 6.1
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release ("Agreement") is entered into this
18/th/ day of February, 2000 by and among KILIMANJARO XXXXX.XXX INC., a Nevada
corporation ("Kilimanjaro"), Xxxxx X. Xxxxxxxxx & Associates, a Texas general
partnership ("Xxxxxxxxx & Associates"), Xxxxx X. Xxxxxxxxx, individually and in
his capacity as general partner of Xxxxxxxxx & Associates (collectively,
"Xxxxxxxxx"), and Xxxxx X. Xxxxxxxxx, Xxxxx X. Xxxxx, and Xxxxxx X. Xxxxxx.
RECITALS
WHEREAS, Xxxxxxxxx, Xxxxx and Xxxxxx are the shareholders of KILIMANJARO;
and
WHEREAS, Kilimanjaro and Xxxxxxxxx & Associates entered into that certain
License Agreement dated July 1, 1999, as amended (the "License Agreement"),
whereby Xxxxxxxxx & Associates granted to KILIMANJARO a three-year exclusive
license for distribution of Biocatalyst and related products in Illinois and
Indiana; and
WHEREAS, Xxxxxxxxx & Associates acquired its right to sublicense
Biocatalyst to KILIMANJARO from NW Technologies, Inc.; and
WHEREAS, Xxxxxxxxx has notified KILIMANJARO that Xxxxxxxxx & Associates
will be unable to fulfill its obligations under the License Agreement due to a
legal dispute between Xxxxxxxxx and NW Technologies, Inc.; and
WHEREAS, KILIMANJARO and Xxxxxxxxx, Xxxxx and Xxxxxx have been damaged by
Xxxxxxxxx & Associates' inability to fulfill its obligations under the License;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties agree as follows:
1. In consideration of Xxxxxxxxxxxxxxx.xxx, Inc., an affiliate of
Xxxxxxxxx & Associates, granting to Xxxxxxxxx, Xxxxx and Xxxxxx an exclusive
license of even date herewith to distribute Xxxxxxxxxxxxxxx.xxx products in
Kentucky and West Virginia, Xxxxxxxxx, Xxxxx and Xxxxxx, their successors and
assigns, hereby release, acquit and discharge Xxxxxxxxx & Associates, its
affiliates, successors and assigns, its present and former employees, partners,
and agents, both individually and in their partnership capacities, from any and
all claims, actions, disputes, causes of action, rights, demands, debts,
damages, costs and attorneys fees, or other accountings of every kind or nature
arising out of the purchase of KILIMANJARO stock and the License Agreement, and
from any and all liability for any acts or omissions of Xxxxxxxxx & Associates,
its present and former employees, partners, and agents, whether presently known
or unknown, including without limitation those claims, damages, or disputes
which could be or have been alleged to have arisen under common law, including
without limitation corporate fiduciary claims, or under any federal or state
securities statute or regulation, including without limitation claims under
Sections 12 and 17 of the Securities Act of 1933, except as provided in
Paragraph 3.
2. Xxxxxxxxx hereby agrees to diligently prosecute his claims against NW
Technologies in an attempt to recover his ability to fulfill his obligations to
KILIMANJARO under the License Agreement, and to take KILIMANJARO's interests in
the License Agreement
into account in any settlement agreement he may enter into with NW Technologies
concerning Biocatalyst rights.
3. Paragraph 1 shall not release Xxxxxxxxx or Xxxxxxxxx & Associates from
their performance obligations under the License Agreement or any claims,
actions, disputes, causes of action, rights, demands, debts, damages, costs and
attorneys fees, or other accountings of every kind or nature which KILIMANJARO
may have arising out of the License Agreement, and from any and all liability
for any acts or omissions of Xxxxxxxxx & Associates, its present and former
employees, partners, and agents, whether presently known or unknown, including
without limitation those claims, damages, or disputes which could be or have
been alleged to have arisen under common law or state or federal law or
regulation, including without limitation breach of contract; provided, however,
that KILIMANJARO shall not prosecute any of its claims against Xxxxxxxxx &
Associates under this Paragraph 3 so long as Xxxxxxxxx complies with his
obligations under Paragraph 2; and provided further, that upon the consummation
of a merger or reorganization of KILIMANJARO with or into any other corporation,
or sale of substantially all of the assets of KILIMANJARO, KILIMANJARO's rights
under this Paragraph 3 shall be extinguished.
4. Xxxxxxxxx, Xxxxx and Xxxxxx understand and agree that the agreements
by Xxxxxxxxx & Associates set forth herein represent and constitute Xxxxxxxxx &
Associates' total offer to resolve and fully and finally settle any and all
claims, actions, disputes, causes of action, rights, demands, debts, damages,
costs and attorneys fees, and other accountings of every kind and nature between
Xxxxxxxxx, Xxxxx and Xxxxxx and Xxxxxxxxx & Associates, and that it is a full,
complete and adequate consideration and compensation for Xxxxxxxxx, Xxxxx and
Xxxxxx'x
agreement to sign this Agreement and that Xxxxxxxxx, Xxxxx and Xxxxxx will
receive no other or further consideration under the terms hereof or otherwise.
5. The parties acknowledge and agree that this settlement is upon
compromise of disputed claims and that nothing contained herein shall be
construed to be an admission of any kind by any party to this Agreement.
6. This Agreement prevails over prior communications regarding the
matters contained herein. This Agreement contains the entire understanding of
the matters between the parties and no representation, warranty, or promise has
been made or relied on by any party hereto other than as set forth herein.
7. This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto, their respective heirs, legal representatives, successors
and assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the day first written above.
XXXXX X. XXXXXXXXX & ASSOCIATES KILIMANJARO XXXXX.XXX RESOURCES, INC.
/s/ Xxxxx X. Xxxxxxxxx /s/ Xxxxx X. Xxxxxxxxx
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By Xxxxx X. Xxxxxxxxx, General Partner By Xxxxx X. Xxxxxxxxx, President
XXXXX X. XXXXXXXXX XXXXX X. XXXXXXXXX
/s/ Xxxxx X. Xxxxxxxxx /s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxxxxx
XXXXX X. XXXXX
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
XXXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
