SETTLEMENT AGREEMENT RE TRUST SHARES
SETTLEMENT
AGREEMENT RE TRUST SHARES
THIS
AMENDED AGREEMENT is made as of this 1st
day of
September, 2006,
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BETWEEN:
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XXXXX
XxXXXX, Businessman,
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of
00000, 00xx
Xxxxxx, Xxxxxxx,
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Xxxxxxx
Xxxxxxxx, Xxxxxx, X0X 0X0
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(“Xxxxx”)
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OF
THE FIRST PART
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AND:
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XXX
XXXXXXXX, Businessman,
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of
0000 Xxxxxxxx Xxxxxx, Xxx Xxxxxxx,
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Xxxxxxxxxx,
XXX, 00000
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(“Xxx”)
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OF
THE SECOND PART
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AND:
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of
0000 Xxxxxxx Xxxxxx, Xxxxxxx,
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X.X.,
Xxxxxx X0X 0X0
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(“EYII”)
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OF
THE SECOND PART
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WITNESSES
THAT WHEREAS:
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A.
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Xxx
has acquired the option to purchase certain restricted-for-trading
shares
“Trust Shares” in EYI Industries, Inc. (“EYII”), a publicly traded
corporation on the OTC Bulletin Board, pursuant to a Settlement
Agreement
made between them in writing on the 5th
day of October, 2005 “Settlement
Agreement”;
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B.
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Jay
has acquired those Trust Shares corresponding to the first six
payments
under the Settlement Agreement and has thereby acquired 1,576,218
of the
Trust Shares (“Acquired Trust Shares”), but has defaulted in respect of
the Seventh Payment;
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1
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C.
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Pursuant
to the Escrow Agreement entered into by the parties and by M. Xxx
Xxxxxxx
(as Escrow Holder), the Escrow Holder has endorsed for transfer
to Xxxxx
the reverse of EYII Share Certificate 5340-5, for a total of 4,334,604
of
the Trust Shares (“March Trust Shares”), and has delivered the said Share
Certificate to Xxxxx;
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D.
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Pursuant
to the Escrow Agreement entered into by Jay, Barry, and by M. Xxx
Xxxxxxx
(as Escrow Holder), the Escrow Holder presently holds the following
share
certificates issued by EYII:
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1.
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EYII
Certificate 5341-3, for a total of 5,910,826 of the Trust Shares,
presently held as security for the Eighth
Payment;
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2.
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EYII
Certificate 5342-1, for a total of 5,910,826 of the Trust Shares,
presently held as security for the Ninth Payment;
and
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3.
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EYII
Certificate 5343-9, for a total of 5,910,828 of the Trust Shares,
presently held as security for the Tenth
Payment;
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(collectively,
“Remaining Trust Shares”).
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E.
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In
order, inter
alia,
to facilitate the settlement of the “Suhl Action” (as defined in the
Settlement Agreement, Xxx and Xxxxx have agreed to amend the Settlement
Agreement and Escrow Agreement as set out herein, and EYII has
agreed to
provide certain assurances to Xxxxx, as set out
herein;
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NOW
THEREFORE IN CONSIDERATION OF the premises and the mutual promises,
representations and covenants hereinafter contained, and for other good and
valuable consideration, the receipt and sufficiency whereof is hereby
acknowledged, the parties hereto agree as follows:
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1.
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Subject
to the terms of this Agreement, the Settlement Agreement and Trust
Agreement are hereby cancelled.
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2.
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Xxxxx
hereby relinquishes to Xxx or his nominee, and acknowledges that
Xxxxx has
no, right, title or interest in the Acquired Trust Shares and the
Remaining Trust Shares.
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3.
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Xxx
hereby relinquishes to Xxxxx, and acknowledges that Xxx has no,
right,
title or interest in the March Trust
Shares.
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4.
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EYII
will use its best efforts to reissue a Share Certificate in the
name of
Xxxxx in respect of the March Shares, and will provide to the transfer
agent a corporate waiver and indemnity in lieu of a Medallion Guarantee
for the verification of the transferor, M. Xxx Xxxxxxx’x signature on
Share Certificate 5340-5. EYII will also use its best efforts,
after March
15, 2007, to remove the Rule 144 restrictive legend in respect
of the
March Trust Shares.
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2
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5.
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Xxxxx
and Xxx acknowledge to each other and to EYII that they have each
obtained
independent legal advice with respect to their execution of this
Agreement.
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6.
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Any
provision hereof which is prohibited or unenforceable shall be
ineffective
and severable to the extent of such prohibition or unenforceability
without invalidating the remaining provisions
hereof.
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7.
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This
Settlement Agreement may be executed by facsimile and may be executed
in
one or more counterparts, each of which shall be deemed to be an
original
and all of which taken together shall be deemed to constitute one
and the
same agreement.
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Executed
in the City of Xxxxxxx, in the Province of British Columbia, Canada, by Xxxxx
XxXxxx, this 6th
day of
September, 2006, after having obtained independent legal advice:
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/s/
Xxxxx LaRoase
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XXXXX
XxXXXX
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Executed
in the City of Los Angeles, in the State of California, USA, by Xxx Xxxxxxxx,
this 6th day of September, 2006, after having obtained independent legal
advice:
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/s/
Xxx Xxxxxxxx
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XXX
XXXXXXXX
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Executed
in the City of Los Angeles, in the State of California, by EYI Industries
Inc.,
this 6th
day of
September, 2006:
Per:
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/s/
Xxx Xxxxxxxx
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(Authorized
Signing Officer)
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3
