SETTLEMENT AGREEMENT
THIS AGREEMENT, made and entered into on the dates written below, by
and between Xxxxxxxx Xxxxxxx, of the post office address of 0000 Xxxxxx Xxxx
Xxxxx, Xxxxxxx, Xxxxxxx 00000-0000 ["Xxxxxxx"], Superpumper, Inc., a North
Dakota corporation whose principal place of business is located at X.X. Xxx
0000, Xxxxx, Xxxxx Xxxxxx 00000-0000 ["Superpumper"] and SPF Energy, Inc., a
North Dakota corporation whose principal place of business is located at P. O.
Xxx 0000, Xxxxx, Xxxxx Xxxxxx 00000-0000 ["SPF"].
WHEREAS, Superpumper and a corporate entity identified as Xxxxxxx Oil,
Inc. ["Farstad"] entered into and executed a Plan and Agreement of
Reorganization and Exchange intending to constitute a "B" reorganization under
the provisions of Section 386 of the Internal Revenue Code of 1986, in May of
1986; and
WHEREAS, Xxxxxxx and Superpumper as a part of the corporate
reorganization, caused the organization of SPF to act as a holding company; and
WHEREAS, pursuant to the Plan and Agreement, SPF acquired One Hundred
Percent (100%) of the outstanding shares owned by Xxxxxxx in Superpumper, and at
the time of the reorganization and exchange Xxxxxxx owned 677,327.3 shares of
common stock in Superpumper; and
WHEREAS, following the completion of the corporate reorganization
transaction contemplated by the Plan and Agreement of Reorganization and
Exchange, Xxxxxxx was the sole owner of 677,327.3 shares of common stock in SPF;
and
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WHEREAS, SPF continues to act in the capacity of a holding company
owning the shares formerly owned by Xxxxxxx in Superpumper, together with owning
the shares of the corporate entity identified as Xxxxxxx Oil, Inc.; and
WHEREAS, Superpumper and SPF made, executed and entered into an
Employment and Stock Option Agreement on or about July 1, 1996, with Xxxxxxx
providing for the employment of Xxxxxxx, and further granting Xxxxxxx an option
to sell shares of SPF common stock to SPF on an annual basis commencing in
calendar year 1996 as more fully specified within the Employment and Stock
Option Agreement; and
WHEREAS, Xxxxxxx has exercised her options to sell shares of SPF common
stock to SPF for the calendar years of 1996, 1997, 1998, 1999 and 2000; and
WHEREAS, SPF has tendered full payment to Xxxxxxx for the shares of SPF
stock which were subject to Xxxxxxx' options to sell as exercised in calendar
years 1996 and 1997; and
WHEREAS, SPF is in default of its obligations required to be performed
by it under the terms and conditions of the Employment and Stock Option
Agreement as a result of SPF's failure to tender payments to Xxxxxxx for
27,732.7 shares of SPF common stock for calendar year 1998, and 67,732.7 shares
of SPF common stock for calendar year 1999; and
WHEREAS, SPF has not, as of the date of this Settlement Agreement,
tendered any payment to Xxxxxxx for the 67,732.7 shares of SPF common stock
which were elected to be sold by Xxxxxxx for calendar year 2000; and
WHEREAS, Xxxxxxx has performed all of the conditions which were
required to be performed by her under the terms and conditions of the annual
options to sell as contained
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within the Employment and Stock Option Agreement for calendar years 1998,1999,
and 2000, and SPF has breached the Employment and Stock Option Agreement by
failing, refusing and neglecting to pay for, purchase and acquire the shares of
SPF common stock from Xxxxxxx subject to the 1998 and 1999 calendar year options
to sell exercised in accordance with the terms and conditions of the Employment
and Stock Option Agreement; and
WHEREAS, a dispute exists between Xxxxxxx, Superpumper and SPF
concerning the per share price required to be paid to Xxxxxxx for the SPF shares
of common stock upon exercise of the options to sell, with Xxxxxxx claiming that
the purchase price for all shares of SPF common stock should be established in
the minimum amount of $5.52 per share, or 92% of the price of SPF shares in
SPF's most recent public offering, or in the absence of a public offering within
two (2) years, the greater of $5.52 per share or 2.5 times the book value of SPF
shares; and SPF claiming that the per share price required to be paid to Xxxxxxx
should have been the greater of the minimum price of $4.60 per share, or 92% of
the SPF shares in SPF's most recent public offering, or in the absence of a
public offering within two (2) years, the greater of $4.60 per share or 2.5
times the book value of SPF shares; and
WHEREAS, the indebtedness which is due and owing by SPF to Xxxxxxx for
the purchase of the SPF shares of common stock for calendar years 1998 and 1999,
using the per share price in the amount of $4.60 amounts to a total obligation
of $418,900.84 as of January 31, 2000; and
WHEREAS, by reason of the defaults of SPF, Xxxxxxx commenced litigation
in the action entitled XXXXXXXX XXXXXXX VS. SPF ENERGY, INC., ET AL, Xxxx County
District Court
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Civil No. 51-99-C-01196, which action is currently pending and in which a Motion
for Summary Judgment is currently pending for consideration as filed by and on
behalf of Xxxxxxx; and
WHEREAS, all parties to this Settlement Agreement are desirous of
effecting a compromise and settlement concerning the terms and conditions of the
indebtedness which currently exists between the parties relating to Xxxxxxx'
exercised options to sell SPF shares of common stock for calendar years for 1998
and 1999, and the parties have therefore agreed to be bound by the terms and
conditions of this Settlement Agreement, and the terms and conditions of this
Settlement Agreement are as set forth herein:
NOW, THEREFORE, in consideration of the mutual benefits to be derived
herefrom, and for good and valuable consideration, both the adequacy and
sufficiency of which is herein expressly acknowledged, it is agreed and
understood by and between Xxxxxxx, SPF and Superpumper as follows:
1. PURPOSE: This Settlement Agreement is made and entered into by
and between the parties hereto in order to establish the rights and obligations
of the parties concerning and relating to Xxxxxxx' options to sell shares of SPF
common stock for the calendar years 1998 and 1999, and for the obligation of SPF
to tender payment of the full amount of the indebtedness which is due and
payable to Xxxxxxx as a result of the exercise of such annual options to sell,
and for the further purpose of settling and compromising the dispute existing
between Xxxxxxx, SPF and Superpumper as it relates to the per share price set
forth within the Employment and Stock Option Agreement.
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2. PAYMENT OF OBLIGATION: SPF, Superpumper and Xxxxxxx herein
expressly agree and acknowledge that effective as of February 1, 2000, interest
has accrued at the rate of Six Percent (6%) on the delinquent payment amounts
which were required to have been paid by SPF to Xxxxxxx for calendar years 1998
and 1999, and such interest amounts to Twenty-one Thousand Six Hundred Sixty
Dollars and Fifty-two Cents ($21,660.52) as of January 31, 2000, resulting in a
total indebtedness as of January 31, 2000, to Xxxxxxx in the amount of Four
Hundred Forty Thousand Five Hundred Sixty-one Dollars and Thirty-six Cents
($440,561.36), and SPF herein agrees that the total indebtedness shall be paid
to Xxxxxxx as follows:
a. On or before February 1, 2000, notwithstanding a later date
of execution of this Agreement, an interest only payment
shall be made in cash to Xxxxxxx in the amount of Twenty-one
Thousand Six Hundred Sixty Dollars and Fifty-two Cents
($21,660.52). Xxxxxxx acknowledges receipt of the interest
only payment.
b. The unpaid balance of the indebtedness as of February 1,
2000, in the amount of Four Hundred Eighteen Thousand Nine
Hundred Dollars and Eighty-four Cents ($418,900.84) shall be
payable in nine (9) equal monthly principal and interest
installments to Xxxxxxx in the amount of Eighteen Thousand
Dollars ($18,000) each, commencing on March 1, 2000, with a
payment of a like amount on the 1(st) day of each successive
month until December 1, 2000, at which time a final
installment payment of Nineteen Thousand One Hundred
Eighty-one Dollars and Thirty-eight Cents ($19,181.38) shall
be due and payable. In addition to the regular monthly
installments of principal and interest as required by this
subparagraph, SPF shall tender payment in cash to Xxxxxxx in
the amount of Two Hundred Fifty Thousand Dollars ($250,000),
as a special principal payment on or before August 1, 2000.
In the event the special principal payment is tendered
before August 1, 2000, the parties agree to cooperate in
adjusting the amortization schedule and payment requirements
detailed on Exhibit "A" attached hereto with the
understanding that the monthly payment amounts shall not be
reduced below $18,000 per month until full payment is
tendered.
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c. SPF acknowledges and agrees that the entire indebtedness due
and owing to Xxxxxxx shall be paid in full, inclusive of
interest accrued on the outstanding unpaid balance on or
before December 1, 2000. The repayment obligation of SPF on
the unpaid balance shall accrue interest at the rate of Six
Percent (6%) per annum. SPF and Xxxxxxx agree that the
unpaid balance of the indebtedness due to Xxxxxxx shall be
paid in accordance with the terms of the amortization
schedule which is attached hereto and made a part hereof as
Exhibit "A." In the event of a default of the payment
obligations of SPF and entry of a monetary judgment being
entered in favor of Xxxxxxx, the interest rate shall be
increased to the statutory rate of Twelve Percent (12%) per
annum on the unpaid balance.
3. PERSONAL GUARANTY OF XXXX XXXXXXX: Prior to or at the time of
executing this Settlement Agreement, SPF shall be required to deliver to Xxxxxxx
a Guaranty of Payment executed by Xxxx Xxxxxxx in his individual capacity,
providing for the unconditional and absolute continuing guarantee of payment for
the Two Hundred Fifty Thousand Dollar ($250,000) obligation of SPF to be paid to
Xxxxxxx on or before August 1, 2000. Attached to and made a part of this
Settlement Agreement as Exhibit "B" is a copy of the Guaranty of Payment which
is approved by all parties as to format and content.
4. STIPULATION FOR DISMISSAL OF PENDING LITIGATION: SPF,
Superpumper and Xxxxxxx, by and through their authorized attorneys, will enter
into and execute a Stipulation for Dismissal Without Prejudice of the action
entitled XXXXXXXX XXXXXXX VS. SPF ENERGY, INC., ET AL, Xxxx County District
Court Civil No. 51-99-C-01196. A copy of the Stipulation for Dismissal Without
Prejudice is attached hereto and made a part hereof as Exhibit "C," and approved
as to format and content by all parties.
5. COMMENCEMENT OF CIVIL ACTION BY XXXXXXX: Simultaneously with the
execution of this Settlement Agreement, Xxxxxxx shall commence a new civil
action against SPF and Superpumper by and through the issuance of the Summons
and
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Complaint, copies of which are attached hereto and made a part hereof as
Exhibits "D" and "E" relating to and concerning the defaults by SPF under the
payment obligations due to Xxxxxxx for payment of the purchase of outstanding
shares of SPF common stock. SPF and Superpumper will by and through their
authorized representatives admit service of the Summons and Complaint effective
as of the date of execution of this Settlement Agreement.
6. STIPULATION FOR JUDGMENT: At the time of executing this
Settlement Agreement, Xxxxxxx, Superpumper and SPF shall sign and execute a
Stipulation for Entry of Judgment in the new civil action to be commenced by
Xxxxxxx, together with a Stipulation for Withholding Filing of an Execution on
the stipulated Judgment. The parties hereto expressly acknowledge that the
Stipulation for Entry of Judgment and the Stipulation for Withholding Filing of
an Execution on Judgment are attached hereto and made a part hereof as Exhibits
"F" and "G," and the parties approve the terms and conditions set forth within
each separate exhibit. SPF and Superpumper specifically acknowledge their review
and approval of all documents which are attached hereto and made a part hereof
as exhibits.
7. STIPULATION FOR JUDGMENT AND OTHER COVENANTS: In exchange for the
consideration of Xxxxxxx granting the extended time period for SPF to submit
full and final payment of the indebtedness due and owing to Xxxxxxx for the
purchase of the 95,465.4 SPF shares for calendar years 1998 and 1999, and in
consideration of Xxxxxxx not filing the Stipulation for Entry of Judgment in the
civil action, and to xxxxx Xxxxxxx more adequate security in the event of a
default under the terms of this Settlement Agreement in regard to the payment of
the full balance of the indebtedness due and owing from SPF
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to Xxxxxxx on or before December 1, 2000, as provided for herein, SPF and
Superpumper jointly and severally knowingly, willingly and voluntarily
acknowledge that Xxxxxxx has commenced the civil action against SPF and
Superpumper predicated upon the defaults of SPF and Superpumper in tendering
payments to Xxxxxxx, and Xxxxxxx is entitled to a judgment in accordance with
the terms and conditions of the Stipulation for Entry of Judgment to be executed
by the parties as attached hereto. In the event SPF and Superpumper tender full
payment of the indebtedness owing to Xxxxxxx at the times and in the amounts as
provided for in this Agreement, Xxxxxxx agrees and covenants that the new civil
action shall be dismissed with prejudice as to the options exercised in 1998 and
1999 and/or appropriate satisfactions shall be executed by Xxxxxxx and delivered
to SPF and Superpumper, and that the separate Stipulation for Entry of Judgment
shall be null and void, and of no further force and effect. In the event SPF and
Superpumper should fail to tender full payment of the indebtedness due to
Xxxxxxx as required by this Settlement Agreement, the District Court for North
Dakota for Xxxx County, North Dakota, shall be entitled to enter judgment in
favor Xxxxxxx pursuant to the provisions of the separate Stipulation for Entry
of Judgment in the new civil action to be commenced simultaneously with the
execution of this Settlement Agreement upon verification to the District Court
by Xxxxxxx in the form of an Affidavit that payment of the full indebtedness
referred to above has not been paid by SPF and/or Superpumper to Xxxxxxx when
due.
8. EVENTS OF DEFAULT: The occurrence of any of the following shall
constitute an Event of Default under the terms and conditions of this Settlement
Agreement:
a. Failure of SPF and/or Superpumper to make payments of the
full amount of the indebtedness due and owing to Xxxxxxx as
provided
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for under the terms and conditions of this Settlement
Agreement on or before December 1, 2000.
b. Failure of SPF and/or Superpumper to comply with any term or
condition of this Settlement Agreement, or any other
agreement which executed pursuant to the terms and
conditions of the Settlement Agreement.
c. If a receiver or other party takes charge or possession of
SPF or Superpumper's property.
d. If SPF and/or Superpumper, or either one of them, file for
protection under any provision of the United States
Bankruptcy Code, wherein the treatment afforded to Xxxxxxx
is not in compliance with the terms and provisions of this
Settlement Agreement or any instrument executed in
accordance herewith.
e. If SPF and/or Superpumper have made false representations in
any respect to Xxxxxxx relating to and concerning their
current financial condition.
9. XXXXXXX' REMEDIES UPON AN EVENT OF DEFAULT: Upon the occurrence
of an Event of Default as more specifically described above, Xxxxxxx may, in her
sole discretion and her option:
a. Immediately proceed with the civil collection action and
obtain entry of judgment in accordance with the Stipulation
for Entry of Judgment executed simultaneously herewith by
filing the Stipulation for Entry of Judgment with the
District Court for Xxxx County, North Dakota and obtaining
the entry of monetary judgment as provided for therein. The
amounts due under the original terms and conditions of the
Stipulation for Entry of Judgment shall include principal,
interest at the rate agreed to by SPF and Superpumper as
provided for in this Settlement Agreement, together with any
and all costs or advances which Xxxxxxx is entitled to
reimbursement under the laws of the State of North Dakota.
The parties hereto agree that the indebtedness established
under the terms and conditions of this Settlement Agreement
shall be reduced by any and all payments which are actually
made by SPF and/or Superpumper to Xxxxxxx during the time
period provided for under this Settlement Agreement to
tender full payment to Xxxxxxx.
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b. Exercise any and all other remedies which may be available
to her under this Settlement Agreement, under the terms of
the original agreements entered into by and between Xxxxxxx
and SPF and Superpumper, or Xxxxxxx may seek relief under
any and all remedies which may be available to her under any
applicable law. It is expressly understood and agreed by the
parties hereto that if the occurrence of an Event of
Default, Xxxxxxx shall be immediately entitled to pursue any
relief she may deem necessary, and all parties expressly
agree that the terms and conditions of the original
documents executed by and between Xxxxxxx, SPF and
Superpumper, all stipulations attached to this Agreement as
exhibits F and G, inclusive, shall remain in full force and
effect pending the time period provided for herein to SPF
and Superpumper to tender full payment to Xxxxxxx. SPF and
Superpumper agree that any payment made by both or either of
them under the terms and conditions of this Agreement, and
the acceptance of any such payments by Xxxxxxx shall not in
any way affect the right of Xxxxxxx to proceed with any
collection action upon the occurrence of an Event of
Default, and the acceptance of payments by Xxxxxxx shall not
constitute a waiver by Xxxxxxx of any default of SPF and/or
Superpumper under the terms and conditions of the original
documents executed between the parties, or under the terms
and conditions of this Settlement Agreement or any document
attached hereto.
Xxxxxxx may pursue any and all remedies available to her in
any order she may desire.
10. WAIVER AND RELEASE OF DEFENSES BY SPF AND SUPERPUMUER:
a. SPF and Superpumper, jointly and severally, for their
respective corporate entities, their shareholders, officers,
directors, successors and assigns acknowledge that the
corporate entities have no defenses, claims, set-offs,
counterclaims, causes of action or offsets against Xxxxxxx
with regard to their obligation to purchase on annual basis
shares of SPF common stock in the event Xxxxxxx exercises
her annual options to sell such shares of stock in
accordance with the terms and conditions of the Employment
and Stock Option Agreement dated June 25, 1996.
b. For good and valuable consideration, both the sufficiency
and adequacy of which are herein expressly acknowledged as
received, SPF and Superpumper herein expressly release and
forever discharge Xxxxxxx, together with her insurers,
representatives, heirs, legal representatives, successors in
interest and assigns of and from any and all past, present,
or future defenses, affirmative defenses,
10
counterclaims, causes of action, set-offs, and demands which
SPF and Superpumper have, jointly or severally, or claim to
have, for or in any way or manner growing out of the
obligations of Superpumper and SPF to tender payment to
Xxxxxxx for SPF shares of common stock which are the subject
of the annual options held by Xxxxxxx to sell SPF shares of
common stock in accordance with the terms and conditions of
an Employment and Stock Option Agreement June 25, 1996. The
release and waiver by SPF and Superpumper as provided for
herein include, without limitation, any and all known or
unknown claims, counterclaims, set-offs, demands or defenses
for damages, costs, expenses, and all economic and
noneconomic loss. The release by Xxxxxxx provided for herein
by Superpumper and SPF shall be a full and binding contract
and constitutes a complete release and waiver upon execution
of this Settlement Agreement. SPF and Superpumper further
state and agree that they each separately and independently
waive all rights under the provisions of NDCC Section
9-13-02, which section reads as follows:
EXTENSION TO KNOWN CLAIMS. - A general release does not
extend to claims which the creditor does not know or suspect
to exist in his favor at the time of executing the release,
which if known by him, must have materially affected his
settlement with the debtor.
11. ACKNOWLEDGMENT OF XXXXXXX' EXERCISE OF 2000 CALENDAR YEAR OPTION:
SPF and Superpumper herein expressly acknowledge that Xxxxxxx has submitted
written notice to the offices of Superpumper and SPF exercising her option for
the sale of 67,732.7 shares of SPF common stock for calendar year 2000. This
Settlement Agreement is not intended to address or resolve the payment
obligations of SPF and/or Superpumper in relationship to such share purchase.
Xxxxxxx reserves all rights to enforce her right to be paid in full for the
exercise of the option to sell the subject shares of SPF common stock for
calendar year 2000 and all future years.
12. WAIVER OF XXXXXXX AS TO PRICE OF SPF COMMON STOCK: The
undersigned parties expressly agree and acknowledge that Xxxxxxx has asserted
that any and all shares which are subject to her annual options to sell SPF
shares of stock should be
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completed at the price of $5.52 per share or, if greater, 92% of the price of
SPF shares in SPF's most recent public offering, or if no public offering has
been made within two (2) years of the exercise of an option, the option price
shall be the greater of $5.52 per share or 2.5 times the book value of SPF
shares (determined in accordance with generally accepted accounting principles)
as of the most recent fiscal/calendar year. Xxxxxxx herein agrees, acknowledges
and consents that the terms and conditions of the Employment and Stock Option
Agreement for purposes of this Settlement Agreement shall be set at the per
share price in an amount which is greater of the formula provided, with the
understanding that the minimum per share price shall be established in the
amount $4.60 per share, as opposed to the $5.52 per share as claimed by Xxxxxxx.
If all payment obligations of SPF and Superpumper are tendered in the amounts
and at the times required by this Settlement Agreement, Xxxxxxx agrees and
acknowledges that for all future years the per share price for SPF shares of
common stock shall be determined under the formula in the Employment and Stock
Option Agreement dated June 25, 1996, with the minimum price established in the
amount of $4.60 per share.
13. BINDING EFFECT ON SUBSIDIARIES: SPF and Superpumper intend that
this release and waiver applies to all subsidiary companies of SPF and
Superpumper and their respective predecessors, successors and assigns, and all
of its past, present and future officers, directors, shareholders, agents and
employees. SPF and Superpumper herein expressly agree that the waiver and
release of all claims, counterclaims, defenses and affirmative defenses which
are or could be available to SPF and/or Superpumper has been made following good
faith negotiations with Xxxxxxx, and SPF and Superpumper acknowledge that they
have no defenses, affirmative defenses, counterclaims, off-sets,
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aims or other rights whether at law or in equity against the claims of Xxxxxxx
which can be invoked on an annual basis for the exercise of her annual options
to sell future shares of SPF common stock in accordance with the terms and
conditions of the Employment and Stock Option Agreement dated June 25, 1996.
14. PROFESSIONAL ADVICE: SPF and Superpumper separately and
independently agree and acknowledge that they have consulted with and have
reviewed the terms of this release with their respective attorneys and accept
the terms and conditions of this release and waiver, and the undersigned parties
do accept the consideration received by them pursuant to and under the terms and
conditions of this Settlement Agreement as a full, complete, final and binding
compromise of all claims, counterclaims, defenses, affirmative defenses,
set-offs and other matters involving or relating to the right of Xxxxxxx to
exercise her options to sell SPF shares of common stock on an annual basis in
accordance with the terms and conditions of the Employment and Stock Option
Agreement dated June 25, 1996.
15. CONSTRUCTION OF DOCUMENT: The waiver and release as set forth
within this Settlement Agreement was originally drafted by counsel for Xxxxxxx
and has been presented to the attorneys for SPF and Superpumper for review and
approval. The parties hereto expressly warrant, represent and acknowledge and
agree, that counsel for both parties have had input into the drafting of this
Settlement Agreement, and all exhibits attached hereto, and agree that the terms
and conditions hereof and in the attached documents are mutually agreeable.
Furthermore, SPF and Superpumper hereby release and discharge Xxxxxxx from and
all claims, rights, damages, costs, defenses, or expenses of any nature
whatsoever that may hereafter accrue to or be acquired by Superpumper
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and/or SPF by reason of the legal or income tax consequences of the waiver and
release provided for herein.
16. VOLUNTARY AND KNOWING EXECUTION: SPF and Superpumper have
executed this Settlement Agreement, specifically including the waiver and
release provided for herein on their own free volition and the undersigned
parties were not subject to any undue influence or coercion from any person or
party at the time this document was executed. SPF and Superpumper agree and
represent that no promises or statements have been relied upon by them except to
the extent set forth within this Settlement Agreement and the documents attached
hereto.
17. AUTHORIZATION: SPF and Superpumper jointly and severally
represent and warrant that the individuals signing and executing this Settlement
Agreement have the sole right and exclusive authority to sign this Settlement
Agreement, and such individuals have full authority to enter into this
Settlement Agreement and no further action, board resolutions, or other
authorizations or shareholder authorizations or resolutions are necessary in
order for this Settlement Agreement to be fully enforceable and binding upon SPF
and Superpumper.
18. AMENDMENT/BINDING EFFECT: This Settlement Agreement shall be
binding upon the parties hereto, their respective subsidiaries, executors,
personal representatives, employees, officers, agents, heirs, successors and
assigns. This Settlement Agreement may not be amended, modified, waived or
changed, except by a writing signed by all parties hereto.
19. APPLICABLE LAW AND SAVINGS CLAUSE: This Agreement shall be
construed under and enforced in accordance with the laws of the State of North
Dakota. If any part
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or portion of this Settlement Agreement is found to be invalid, all remaining
terms and provisions shall remain binding and enforceable upon the respective
parties hereto, unless to do so would destroy an essential part of this
Settlement Agreement.
20. INTEGRATION CLAUSE: This Settlement Agreement, together with all
agreements incorporated herein, shall constitute the entire agreement between
the parties hereto. It is the intention of the parties that the Employment and
Stock Option Agreement dated June 25, 1996, shall remain in full force and
effect, except to the extent modified by this Settlement Agreement. All terms
and conditions of the Employment and Stock Option Agreement are incorporated
herein by reference. The parties agree that any subsequent agreement must be in
writing and signed by all parties in order to be enforceable. The terms and
conditions of the Employment and Stock Option Agreement shall remain in full
force and effect.
21. TIME OF ESSENCE: The parties hereto agree that time is of the
essence of each and every provision of this Settlement Agreement.
22. READING OF AGREEMENT: In entering into this Settlement Agreement
all parties agree that they have completely read all terms of this Settlement
Agreement, and the terms are fully understood and voluntarily accepted, and that
both parties have had the full benefit of representation by counsel of their
choice.
23. FUTURE COOPERATION: All parties agree to fully cooperate, to
execute any and all supplementary documents or agreements and to take any and
all necessary or additional actions that may be required or appropriate to give
full force and effect of the terms and intent of this Settlement Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year set forth below.
DATE: 3/10/00 /s/ Xxxxxxxx Xxxxxxx
------- ----------------------------
Xxxxxxxx Xxxxxxx
DATE: 2/29/00 SPF ENERGY, INC.:
-------
BY: /s/ X. X. Xxxxxxx
----------------------------
Its: COO
----------------------
DATE: 2/29/00 SUPERPUMPER, INC.:
-------
BY: /s/ [ILLEGIBLE]
---------------------------
Its: COO
---------------------
STATE OF GEORGIA )
) ss.
COUNTY OF XXXXXX )
------
On this 10 day of March, 2000, before me personally appeared Xxxxxxxx
Xxxxxxx, the person that is described in and that executed the within and
foregoing instrument and acknowledged to me that she executed the same.
/s/ Xxxxx Xxxxxxxxx
[SEAL OF NOTARY PUBLIC] ---------------------------
, Notary Public
-------
Xxxxxx County, Georgia
My Commission Expires: 2-4-2002
--------
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STATE OF NORTH DAKOTA )
) ss.
COUNTY OF XXXX )
----
On this 29th day of Feb, 2000, before me personally appeared
X. X. Xxxxxxx, known to me to be the COO of SPF Energy, Inc. the corporation
which is described in and who executed the within instrument and acknowledged to
me that such corporation executed the same.
/s/ Xxxxx Xxxxxx
---------------------------
, Notary Public
----------
Xxxx County, North Dakota
----
My Commission Expires:
--------
[SEAL OF NOTARY PUBLIC]
STATE OF NORTH DAKOTA )
) ss.
COUNTY OF XXXX )
----
On this 29th day of Feb, 2000, before me personally appeared
Xxxxx X. Domes, known to me to be the COO of Superpumper, Inc. the corporation
which is described in and who executed the within instrument and acknowledged to
me that such corporation executed the same.
/s/ Xxxxx Xxxxxx
---------------------------
, Notary Public
---------
County, North Dakota
----
My Commission Expires:
--------
[SEAL OF NOTARY PUBLIC]
17
