Exhibit 10.1
SETTLEMENT AGREEMENT AND
MUTUAL RELEASE
This Settlement Agreement
and Mutual Release (this “Agreement” or
“Mutual Release”) entered into on November __,
2007, is by and between Texhoma Energy, Inc., a Nevada
Corporation (“Texhoma,” and unless otherwise
stated, the defined term Texhoma shall include any and all
subsidiaries of Texhoma, including Texaurus Energy, Inc., a
Delaware corporation) and Frank A. Jacobs, an individual
(“Jacobs”) and Jacobs Oil & Gas Limited, a
British Columbia corporation (“JOGL,” and
collectively with Jacobs, the “Jacobs Parties”),
Clover Capital, (“Clover”), Capersia Pte. Ltd., a
Singapore company (“Capersia”), Peter Wilson, an
individual (“Wilson”), and Sterling Grant
Capital, Inc. a BC corporation (“SGC”)
(collectively, Clover, Capersia, Wilson and SGC, the
“Non- Jacobs Parties,” and with the Jacobs
Parties (the “Interested Parties”, and
individually, an “Interested Party”), each
sometimes referred to herein as a “Party,” and
collectively referred to herein as the
“Parties.”
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1. Representations and
Warranties of the Interested Parties:
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1.1
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Capersia
entered into a Sale and Purchase Agreement with Texhoma on or
about November 4, 2004, pursuant to which Texhoma purchased a
40% interest in Black Swan Petroleum Pty. Ltd., for 56,000,000
(post forward split) shares of Texhoma common stock, of which
approximately 26,000,000 shares have been transferred and/or
gifted to various parties, leaving an aggregate of 30,000,000
shares held in the name of Capersia as of the date of this
Agreement (the “Capersia Shares”).
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1.2
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Jacobs
was previously employed by Texhoma as a Director of Texhoma
from approximately January 24, 2005, to June 14, 2007; as
Chief Executive Officer of Texhoma from approximately April
12, 2006, to June 5, 2006, and from approximately May 17, 2007
to June 4, 2007; as Chief Financial Officer from approximately
May 17, 2007 to June 14, 2007; and as Executive Chairman
during the period from approximately January 24, 2005 to June
14, 2007 (collectively the
“Employment”).
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1.3
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On
or about March 24, 2006, Jacobs subscribed and paid cash for
7,500,000 shares of Texhoma’s common stock for aggregate
consideration of $300,000 (the “Jacobs
Shares”).
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1.4
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On
or about October 19, 2006, during which time Jacobs served as
Executive Chairman, Texhoma issued a Promissory Note to JOGL,
an entity controlled by Jacobs in the amount of $493,643.77,
which amount purportedly represented funds advanced to the
Company by Jacobs and management fees owed to Jacobs (the
“Jacobs Note”), a copy of which is attached hereto
as Exhibit A.
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1.5
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On
or around October 19, 2006, in security for the repayment of
the Jacobs Note, Texhoma entered into a Security Agreement
with Jacobs, attached hereto as Exhibit B, under which
Security Agreement, Texhoma transferred 200,000 shares of the
common stock of Morgan Creek Energy Corp. to Jacobs as
security for the repayment of the Jacobs Note (the
“Morgan Creek Shares”).
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1.6
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In
April and May 2006, Texhoma issued an aggregate of 22,375,000
shares of its common stock to Lucayan Oil and Gas Investments,
Ltd., a Bahamas corporation (the “LOGI
Shares”).
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1.7
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On
or about June 5, 2007, Texhoma entered into an Agreement with
JOGL (the “Tolling Agreement,” attached hereto as
Exhibit C, pursuant to which JOGL agreed that no interest
would be due from Texhoma and/or accrue on the principal or
accrued interest to date on the Jacobs Note for a period of
one (1) year from the date of the Tolling Agreement and that
JOGL would not try to collect the principal and/or accrued
interest on such Jacobs Note for a period of one (1)
year.
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1.8
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On
or about June 5, 2007, several of Texhoma’s largest
shareholders, including Capersia and Jacobs, entered into a
Voting Agreement, whereby they agreed that until June 5, 2009,
neither would vote any of the shares of common stock which
they held for (i.e. in favor of) the removal of William M.
Simmons or Daniel Vesco, Texhoma’s Directors, or for or
against various other shareholder approvals as described in
greater detail on the Voting Agreement, attached hereto as
Exhibit D (the “Voting
Agreement”).
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1.9
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The
issuances of the Jacobs Shares, the Capersia Shares and the
LOGI Shares (collectively the “Shares”), were
validly issued, with approval by Texhoma’s Directors,
fully paid and non-assessable upon their
issuance and the legal opinions previously provided
for the sale or transfer of any such Shares pursuant to Rule
144 under the Securities Act of 1933, as amended, were
compliant with Rule 144.
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1.10
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The
Parties wish to enter into this Mutual Release to settle their
disputes.
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2.1
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The
Jacobs Parties agree that in
consideration for Texhoma agreeing to the terms and conditions
of Section 3.3 and Section 4.3, as well as the other terms and
conditions contained herein (the “Jacobs
Consideration”), that the Jacobs Parties agree to the
terms and conditions of Section 3.1, Section 4.1 and Section
5, below, as well as the other terms and conditions contained
herein.
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2.2
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The
Non-Jacobs Parties agree that in consideration for Texhoma
agreeing to the terms and conditions of Section 3.3 and
Section 4.3, as well as the other terms and conditions
contained herein (the “Non-Jacobs Consideration”),
that the Non-Jacobs Parties agree to the terms and conditions
of Section 3.2, Section 4.2 and Section 5, below, as well as
the other terms and conditions contained herein.
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2.3
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Texhoma
agrees that in consideration for the Interested Parties
agreeing to the terms and conditions of Sections 3.1, 3.2,
4.1, 4.2 and Section 5, below, as well as the other terms and
conditions contained herein (the “Texhoma
Consideration”), that Texhoma agrees to the terms and
conditions of Section 3.3 and 4.3, below, as well as the other
terms and conditions contained herein.
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2.4
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The
Jacobs Parties agree that they will receive valid
consideration from the Jacobs Consideration.
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2.5
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The
Non-Jacobs Parties agree that they will receive valid
consideration from the Non-Jacobs Consideration.
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2.6
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Texhoma
agrees that it will receive valid consideration from the
Texhoma Consideration.
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3.1
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In
consideration of the agreements and covenants set forth herein
above and below, the sufficiency of which is hereby
acknowledged and confessed, the Jacobs Parties, for
themselves, their agents, servants, attorneys, officers,
directors, employees, successors and assigns, to the extent
legally allowed, hereby covenant and agree as
follows:
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3.1.1
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To
return 5,000,000 of the Jacobs Shares to Texhoma for
cancellation (and to provide Texhoma authority and consent and
to execute any required documentation in connection with such
authority and consent to affect such cancellation) promptly
after the Parties entry into this Mutual Release (the
“Jacobs Cancellation”), which will leave Jacobs
with 2,500,000 shares of Texhoma’s common stock (the
“Remaining Jacobs Shares”) and that neither of the
Jacobs Parties shall have any claim to or interest in any of
the Jacobs Shares, other than the Remaining Jacobs Shares,
subsequent to such return and cancellation.
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3.1.2
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That
in connection with the Parties entry into this Mutual Release,
that any and all debt owed by Texhoma to the Jacobs Parties,
which is known or unknown, accounted for or unaccounted for,
will be forever discharged and forgiven, the result of which
will be that following the Parties entry into this Mutual
Release, Texhoma will owe no cash nor any other consideration
to any of the Jacobs Parties, or to any of the Non-Jacobs
Parties, including but not limited to Clover and
Capersia.
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3.1.3
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That
Texhoma shall owe Jacobs no rights to contribution and/or
indemnification in connection with his service to Texhoma as
an officer or Director and/or in connection with his service
to Texaurus Energy, Inc., as an officer or
Director of such companies, following the Parties entry into
this Mutual Release, for any matters, claims, or actions
whatsoever, in connection with any cause of action, lawsuit,
or complaint of any kind brought by any current or former
shareholder of Texhoma or Texaurus, and/or current officer or
Director of Texhoma or any regulatory board or
commission.
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3.1.4
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That
Jacobs will certify the accuracy and correctness of
Texhoma’s yet to be prepared annual and interim
financial statements and periodic reports, relating to the
time periods of the Employment, in a form substantially
similar to the SEC’s required (i) Certification Of Chief
Executive Officer and Chief Financial Officer Pursuant To
Section 302 of The Sarbanes-Oxley Act Of 2002 and
Certification of Chief Executive Officer; and (ii)
Certification of Chief Financial Officer Pursuant To 18 U.S.C.
Section 1350, As Adopted Pursuant To Section 906 Of The
Sarbanes-Oxley Act Of 2002 (collectively the
“Certifications”).
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3.1.5
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That
Jacobs will certify the accuracy and correctness of
Texhoma’s previously prepared and filed annual and
interim financial statements and periodic reports, relating to
the time period of the Employment, by executing the
Certifications attached hereto as Exhibit E.
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3.1.6
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That
neither of the Jacobs Parties has any interest in, claim to,
or disagreement with the LOGI Shares, and neither of the
Jacobs Parties will take any steps or actions to prevent the
sale of or transfer of such LOGI Shares, inquire into the
status of such shares and/or to purchase and/or finance such
shares in the future, directly or indirectly.
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3.1.7
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Jacobs
agrees to continue to assist Texhoma to the best of his
ability and knowledge, as Texhoma may reasonably request in
writing, with responses to any questions asked regarding
Texhoma’s operations and/or financial
statements. Jacobs also agrees to use his best
efforts to produce executed copies of any documents reasonably
requested by Texhoma, concerning Texhoma’s prior
operations, liabilities, financial statements or disclosure in
its Securities and Exchange Commission filings, directly or
indirectly.
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3.1.8
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Jacobs
agrees that any and all stock options which were granted by
Texhoma to Jacobs previously in connection with his Employment
or otherwise have previously expired unexercised and that he
holds no options or warrants in the common stock of Texhoma or
Texaurus.
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3.1.9
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That
the Voting Agreement shall remain in full affect and force
following the Parties’ execution of this Mutual Release
and be enforceable against Jacobs for and until the expiration
of the term of such Voting Agreement.
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3.1.10
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Jacobs
certifies that he does not control or have any participation,
beneficial ownership in, and/or interest in any shares of
Texhoma other than the Jacobs Shares.
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3.1.11
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That
nothing in this Mutual Release shall be construed in any way
to relate to the approval or validation of the consideration
given for or the validity of the issuance of the Shares by
Texhoma or its current officers and directors, and/or to the
validity or approval of any legal opinions previously provided
for the sale or transfer of any such Shares pursuant to Rule
144 under the Securities Act of 1933, as amended or otherwise,
by Texhoma or its current officers and directors.
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3.2
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In
consideration of the agreements and covenants set forth herein
above and below, the sufficiency of which is hereby
acknowledged and confessed, the Non-Jacobs Parties, for
themselves, their agents, affiliates, servants, attorneys,
officers, directors, employees, successors and assigns, to the
extent legally allowed, hereby covenant and agree as
follows:
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3.2.1
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That
in connection with the Parties entry into this Mutual Release,
that any and all debt owed by Texhoma to Clover or Capersia or
any affiliated parties of Clover or Capersia, or any other of
the Non-Jacobs Parties, which is known or unknown, accounted
for or unaccounted for, will be forever discharged and
forgiven, the result of which will be that following the
Parties entry into this Mutual Release, Texhoma will owe no
cash nor any other consideration to either Clover or Capersia,
nor any other of the Non-Jacobs Parties.
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3.2.2
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That
none of the Non-Jacobs Parties have any interest in, claim to,
or disagreement with the
LOGI Shares, and none of the Non-Jacobs Parties
will take any steps or actions to prevent the sale of or
transfer of such LOGI Shares, inquire into the status of such
shares and/or to purchase such shares, inquire into the status
of such shares and/or to purchase and/or finance such shares
in the future, directly or indirectly.
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3.2.3
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That
the Voting Agreement shall remain in full affect and force and
be enforceable against Capersia for and until the expiration
of the term of such Voting Agreement.
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3.2.4
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Capersia
agrees not to sell, gift or otherwise transfer an amount of
the Capersia Shares in excess of 2% of Texhoma’s then
outstanding shares of common stock, in any three (3) month
period, until th
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