Exhibit
10.15
CONFIDENTIAL RELEASE AND
SETTLEMENT AGREEMENT
THIS RELEASE AND SETTLEMENT AGREEMENT
(“Agreement”) is made effective this 27th day of April,
2009, by and between William T. Jacobson (“William
Jacobson”), Mary Ann Jacobson, David Jacobson, and
Karl W. Jacobson (collectively, referred to as “the
Jacobsons”) and Atlas Mining Company
(“Atlas”). The Jacobsons and Atlas shall
collectively be referred to as “the
Parties.”
RECITALS
A. Atlas
has made the Jacobsons aware of potential securities and common law
claims arising out of William Jacobson’s tenure as an officer
and director of Atlas that it intended to assert against the
Jacobsons.
B. William
Jacobson has made Atlas aware of potential claims for unpaid
accrued vacation and other compensation issues that that he
intended to assert against Atlas.
C. Two
other actions relevant to William Jacobson’s tenure as an
officer and director of Atlas, listed below, are in progress
against Atlas and William Jacobson. These actions are:
Benson v. Atlas Mining Company , Case No. CV
07-428-N-EJL-MHW (D. Idaho) (“Class Action
Litigation”); and the United States Securities and Exchange
Commission’s (“SEC”) formal investigation of
Atlas and former Atlas officers, pertaining to potential violations
of federal securities law (“SEC
Investigation”).
D. The
Parties have entered into this Agreement to avoid the expense,
inconvenience, and uncertainty of litigation. The
purpose of this Agreement is to achieve settlement and compromise
of Atlas’s potential claims against the Jacobsons arising out
of William Jacobson’s tenure as an officer and director of
Atlas, and the Jacobsons’ potential claims against Atlas
arising out of the same
TERMS
1. William Jacobson
agrees to transfer ownership to Atlas of 3,044,083 Atlas shares,
which constitute any and all Atlas shares that he owns.
2. William Jacobson
represents, warrants, and covenants the following:
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that he only
owns 3,044,083 of Atlas stock and is transferring any and all Atlas
shares that he owns pursuant this Agreement;
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that
Appendix A constitutes any and all assets William
Jacobson owns or in which he has any ownership interest;
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that he has
obtained and provided his counsel, who in turn has provided such
information to Atlas counsel, an accurate accounting for those
Atlas shares owned by Mary Ann Jacobson, Karl
W. Jacobson, and David Jacobson;
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that there are
no arrangements that previously existed or currently exist,
pursuant to which William Jacobson gifted or transferred any of his
currently or previously owned assets (other than Atlas shares), to
a family member, trust, or similar vehicle, within the last six
years;
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That by
executing and performing pursuant to this Agreement and agreeing to
provide the consideration referenced in this Agreement and by
receiving the release from Atlas hereunder, William Jacobson will
render himself solvent and that the execution or implementation of
this Agreement in no way renders himself in the zone of insolvency
or insolvent or with insufficient assets to pay his obligations as
they come due.
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This Agreement
is entered into in consideration, in part, of these
representations, warranties, and covenants discussed
above. The Jacobsons and Atlas agree that any
inaccuracies in the representations, warranties, or covenants will
constitute a breach of this Agreement providing Atlas any and all
rights and remedies it has or may have in law or equity against
William Jacobson and/or any other of the Jacobsons collectively or
individually. Likewise, William Jacobson agrees to
indemnify, defend, save and hold Atlas and their affiliates and
each of their respective officers, employees, legal counsel and
other representatives and agents harmless from and against any and
all liabilities, claims, demands, losses, damages, costs and
expenses of any kind or nature whatsoever (including, without
limitation, reasonable attorneys fees and costs), that arise out of
or are connected with any inaccuracies in the representations,
warranties, and/covenants contained in this Agreement
3. William Jacobson
and Mary Ann Jacobson agree, collectively and individually, to
waive any and all rights and claims that he has, or may have, under
any potentially applicable insurance policy issued to
Atlas. Such insurance policies include, but are not
limited to, the Navigators Policy No. NY06DOL103375NV
(originally October 17, 2006 to October 17, 2007),
Navigators Policy No. NY07DOL103375NV (October 1, 2007 to
October 1, 2008), RSUI Indemnity Company Policy
No. NHS626701 (October 1, 2007 to October 1, 2008),
and National Union Policy No. 00-228-41-70 (October 17,
2008 to October 17, 2009) (collectively “the
Policies”). This release shall apply to any and
all past, present, and future claims, including but not limited to
the Class Action Litigation, the SEC Investigation, and/or any
other claim that might arise in the future.
4. William Jacobson
and Mary Ann Jacobson agree, collectively and individually, to
consent unconditionally (upon the request of Atlas) to any payments
by Navigators or any other insurers to Atlas or other insured
persons or entities, and to cooperate reasonably with any efforts
to secure payments from insurers.
5. William Jacobson
agrees to provide copies of invoices for legal fees associated
solely with the defense of the Class Action Litigation
(“Defense Costs”). William Jacobson shall
remove or redact any billing entries and amounts related to any
other matter in order to facilitate Atlas efforts to obtain
insurance coverage for such Defense Costs. The maximum
amount
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