GLOBAL SETTLEMENT AGREEMENT & MUTUAL RELEASE
OF ALL CLAIMS BY ALL PARTIES
THIS GLOBAL SETTLEMENT AGREEMENT & MUTUAL
RELEASE OF ALL CLAIMS BY ALL PARTIES (“Agreement”) is
dated, entered into and made fully effective (irrespective of the
date actually signed by the parties) as of the 13 day of May, 2009,
by and among RETRIEVERS, LLC, a Nevada Limited Liability Company
(“Retrievers”), JOHN TINGUE, individually and as a
Member and Manager of RETRIEVERS (“JT”), and KRIS
TINGUE, individually and as Member and Manager of
RETRIEVERS(“KT”), on behalf of themselves, their
respective family members, partners, associates, affiliates,
co-venturers, heirs, executors, administrators, attorneys, and
assigns, (all of the foregoing three (3) named persons and one (1)
entity may be hereinafter variously referred to as the
“RETRIEVERS GROUP”), and GOLDEN PHOENIX MINERALS, INC.,
a Nevada corporation (“GPM”), as an entity and as a
Member, Manager, and/or Unit holder of ASHDOWN PROJECT, LLC, a
Nevada Limited Liability Company a/k/a ASHDOWN MINE LLC
(“Ashdown”), Ashdown, as an entity; WIN-ELDRICH GOLD,
INC., a corporation (“WEG”), as an entity and as a
Member, Manager, and/or Unit holder of ASHDOWN; and PERRY MULLER,
individually and as a Member, Manager, and/or Unit holder of
Ashdown and/or an officer, director and/or shareholder of WEG,
directly or indirectly (“PM”), and GPM, ASHDOWN, WEG
and PM on behalf of themselves, their respective family members,
partners, associates, affiliates, co-venturers, heirs, executors,
administrators, attorneys, and assigns, sometimes collectively or
jointly referred to as the “ASHDOWN GROUP” such
reference specifically including each of the three (3) entities and
one (1) person included in the referenced ASHDOWN GROUP, jointly
and severally.
Recitals
A.
Whereas,
on February 12, 2009, RETRIEVERS commenced a lawsuit against the
ASHDOWN GROUP in the Sixth Judicial District Court of the State of
Nevada, in and for the County of Humboldt, Case No. CV-17880 (the
“Lawsuit”), seeking (1) to establish rights, titles,
and interests in and to certain personal property known as the
“Kingston Mill”, consisting of certain machinery and
equipment (together, the “Kingston Mill”); (2) damages
for breaches of contract and other claims; and (3) certain
equitable relief, all as more specifically identified and set forth
in the Lawsuit. The Lawsuit included claims arising out
of certain obligations and agreements contained in a Settlement
Agreement between Retrievers and Golden Phoenix, made as of August
26, 2005 (“Settlement Agreement”).
B.
Whereas, on
February 27, 2009, after all named defendants in the Lawsuit had
been lawfully served with process, and prior to any responsive
pleading having been filed in the Lawsuit by any defendant,
representatives of the ASHDOWN GROUP met with representatives of
the RETRIEVERS GROUP to discuss a potential settlement of all
disputes among the parties, and the parties have reached an
agreement for the terms of a resolution of the Lawsuit on the terms
and conditions set forth below.
C.
Whereas, the
parties wish to compromise and settle all claims and issues arising
from, or related to, the interests in and titles to the Kingston
Mill, and the other issues set forth in the Lawsuit, and any and
all claims the respective parties, persons and entities named above
may have against any other party or person named herein or therein
as a result of their joint and/or several business and/or other
relationships, actual and/or proposed/discussed, involving
RETRIEVERS, the Kingston Mill, the claims asserted in the Lawsuit,
other business proposals and/or potential ventures, or otherwise,
all on the terms and conditions expressed in this
Agreement.
D. PM’s
payment of $100,000 will entitle him or assignee to the
unencumbered ownership of Kingston Mill.
NOW, THEREFOR, FOR GOOD AND VALUABLE
CONSIDERATION, the receipt and sufficiency of which are hereby
acknowledged by all of the undersigned, and in exchange for the
mutual covenants set forth in this Settlement Agreement, the
parties hereto agree as follows:
SECTION 1
Consideration
1.1 In
full and complete settlement of any and all claims, past and
present, whether known or unknown, existing now or in the future,
asserted by the RETIEVERS GROUP against the ASHDOWN GROUP,
including, but not limited to, all claims asserted in the Lawsuit
and any and all claims that could have been asserted in the Lawsuit
against the ASHDOWN GROUP, jointly and severally, and any other
claims which may hereafter be asserted against the ASHDOWN GROUP
arising from the Lawsuit, or otherwise involving the relationships
and dealings, including, but not limited to, that certain
Settlement Agreement dated August 26, 2005 by and between GPM,
RETRIEVERS, JT, KT and Earl Harrison d/b/a Western Mine
Development, proposed/discussed dealings and ventures, among any or
all of the various entities and persons included in the ASHDOWN
GROUP and the persons in the ASHDOWN GROUP, the ASHDOWN GROUP shall
cause to be paid to the RETRIEVERS GROUP, the total sum of TWO
HUNDRED AND SIXTY-FIVE THOUSAND U.S. Dollars (US$265,000.00),
which shall constitute the sole, full and exclusive cash payment to
the RETRIEVERS GROUP, or any entity or person included therein, by
the ASHDOWN GROUP, as full consideration from the ASHDOWN GROUP to
fully and finally settle all claims and issues between the ASHDOWN
GROUP, and any of the three (3) entities and one (1) person
included therein, and the RETRIEVERS GROUP, and of the two (2)
persons and one (1) entity included therein, whether raised in the
Lawsuit, or otherwise, except as provided in this
Agreement.
1.2 The
payment of the TWO HUNDRED AND SIXTY-FIVE THOUSAND U.S. Dollars
(US$265,000.00) shall be paid as follows: certified
funds made payable to “RETRIEVERS, LLC”, on the
following payment schedule:
a. $100,000.00 concurrent with execution of this
Agreement, shall be paid solely by PM and is not a GPM
obligation.
b. $165,000.00 shall be paid solely from monies
raised by and/or received by GPM from and after the date of this
Agreement, said $165,000.00 to be paid based on twenty-five percent
(25%) of any and each of all monies raised and/or received in any
manner, through any means, from any source by any person or entity
involved with or related, directly or indirectly, to GPM until
fully paid; and is not a WEG/PM/ASHDOWN obligation.
c. The sum of $165,000.00 due and
payable to RETRIEVERS hereunder shall be evidenced by a promissory
note signed by GPM, secured by all the assets of GPM, and its
subsidiaries, and shall be a lien upon and fully encumber any and
all properties, both real and personal, owned by GPM directly or
indirectly, including, but not limited to, the Kingston Mill,
should GPM acquire any rights or interests therein, and shall
accrue interest thereon at the rate of 12% per annum, commencing on
the date of this Agreement until paid in
full. RETRIEVERS GROUP hereby acknowledges and consents
to GPM’s intended transfer and sale of all of its ownership
interest in and to ASHDOWN to WEG, free and clear of encumbrances,
such that RETRIEVERS’ security interest shall attach only to
the proceeds of the sale of GPM’s ownership interest in
ASHDOWN and not to GPM’s ownership interest
itself.
d. Concurrent with execution of this Agreement,
and specifically conditioned upon the receipt by RETRIEVERS in good
funds in the amount of $100,000.00 RETRIEVERS shall execute and
deposit in escrow with its undersigned attorney a Bill of Sale for
the Kingston Mill in favor of PM or his assignee. Upon
receipt by RETRIEVERS of the sum of $100,000.00, made payable to
RETRIEVERS’ counsel’s client trust account and
RETRIEVERS LLC and tendered thereto, the undersigned attorney, as
escrow agent, shall deliver the Bill of Sale to PM or his assignee,
as directed by PM, in writing.
e. RETRIEVERS GROUP hereby acknowledges and
consents to the contemplated transfer of title in and to the
Kingston Mill to PM in exchange for the $100,000 to be paid to
RETRIEVERS pursuant to Section 1.2(a).
1.3 As
additional consideration hereunder, RETRIEVERS shall prepare a Bill
of Sale for the Kingston Mill in the name of PM or his assignee, as
directed in writing. PM represents and acknowledges that
they or their representative(s) have inspected the Kingston Mill on
or before the date of this Agreement and are accepting the Kingston
Mill “as-is, where-is” and not relying on any
representations or warranties by the RETRIEVERS GROUP, or any
entity or person included therein, in entering into this Agreement
or accepting the Kingston Mill “as-is, where-is”, and
PM expressly represents and acknowledges that neither the
RETRIEVERS GROUP nor any of the persons or entity included therein
have made any representation(s) or warranty (ies) relating to the
Kingston Mill, or any other aspect of this Agreement.
1.4 Upon
delivery of the Bill of Sale, ASHDOWN and PM will enter into a
lease for the Kingston Mill, and ASHDOWN will solely be responsible
for applying, if necessary or appropriate, and paying for, any and
all permits, licenses and related approvals, and complying with
regulatory requirements/issues pertaining to re-activating, if
applicable, any permits, bonds, etc., related to the Kingston Mill,
for any proposed or desired future operations. The
RETRIEVERS GROUP will have no responsibility of any nature in this
regard, and specifically makes no representation of any nature in
regard to any of these matters/issues. Necessary
maintenance and repairs shall be performed by ASHDOWN, at
ASHDOWN’s sole cost and expense.
SECTION 2
Release
2.1 In
consideration for the undertakings described in this Agreement, and
only after receipt in full of the sum of $100,000.00 due and
payable pursuant to section 1.2 above, RETRIEVERS, JT, KT and the
RETRIEVERS GROUP, on behalf of themselves, jointly and severally,
and their respective family members, partners, associates,
successors, assigns, affiliates, co-venturers, heirs, executors,
administrators and assigns, fully, finally, unconditionally and
forever release and discharge GPM, ASHDOWN, WEG and PM, and the
ASHDOWN GROUP, from any and all claims, demands, losses, damages,
actions, causes of action, suits, debts, promises, liabilities,
obligations, liens, costs, expenses, attorneys’ fees,
indemnities, subrogations (contractual or equitable) or duties, of
any nature, character or description whatsoever, whether known or
unknown, fixed or contingent, accrued or not yet accrued, matured
or not yet matured, anticipated or unanticipated, asserted or
unasserted, arising from, or relating to, directly or indirectly,
activities of whatsoever nature related to RETRIEVERS and/or the
business and/or operations of RETRIEVERS, proposed or actual,
and/or relationships among the various entities, persons and/or
parties and/or the Lawsuit, the Settlement Agreement and/or any
proposed business or ventures with, by or among the various
parties, or others. Specifically excluded from the terms
of this release is the obli
