SETTLEMENT AGREEMENT AND RELEASE
--------------------------------
This Agreement is made as of July __, 2003, by and between KANAN, CORBIN,
XXXXXXX & XXXXXX, INC. ("KCSA"), with an address at 000 Xxxxxx Xxxxxx, Xxx Xxxx,
XX 00000, on the one hand, and ASIA PROPERTIES, INC. ("API"), with an address
at 000 Xxxxxxxx Xxxxxx, Xxxxx 000-000, Xxxxxxxxxx, XX 00000.
W I T N E S S E T H
WHEREAS, pursuant to the agreement between API and KCSA, dated May 23, 2001
(the "Agreement"), in satisfaction of an unpaid amount owed by API to KCSA for
services rendered by KCSA, API conveyed to KCSA 58,000 shares of common stock in
API, represented by certificate No. 229 (the "KCSA Shares"); and
WHEREAS, the KCSA Shares were subject to a restriction prohibiting their sale or
transfer by KCSA within two (2) years of the date of the Agreement; and
WHEREAS, KCSA wishes to have the opportunity to sell, transfer or otherwise
convey the KCSA Shares; and
WHEREAS, API wishes to grant KCSA the right to convey the KCSA Shares, subject
to certain limitations.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. API shall instruct its transfer agent, Computershare Trust Co.
("Computershare"), by letter substantially in the form annexed hereto as Exhibit
A, to issue to KCSA, or its designee, a new share certificate representing
58,000 shares of common stock of API free of any restrictions or limitations on
transfer upon receipt of share certificate No. 229.
2. KCSA agrees that neither it nor its designee shall offer the KCSA Shares
for sale at a price less than eighty-five percent (85%) of the last sale of API
stock made on the previous business day.
3. KCSA further agrees to provide, or have its designee provide, trade
confirmations or other reports to API evidencing the sales of the KCSA Shares
via facsimile transmission within three (3) business days of the settlement of
any trade, with a back-up copy to be provided by mail.
4. In consideration of the foregoing,KCSA and each of KCSA's successors,
heirs, executors, administrators, agents, representatives, partners, employees,
assigns and licensees hereby release and forever discharge API and each of API'
successors, heirs, executors, administrators, agents, representatives, partners,
employees and assigns from any and all actions, causes of action, suits, debts,
damages, claims, demands, obligations, losses, expenses, attorneys' fees and/or
liabilities of any kind, nature and description, known or unknown, suspected or
claimed, existing prior to or after the effective date of this Settlement
Agreement and Release, based on, arising out of or in connection with the
Agreement.
5. API and each of API's respective successors, heirs, executors,
administrators, agents, representatives, partners, employees, assigns and
licensees hereby release and forever discharge KCSA and each of KCSA's
successors, heirs, executors, administrators, agents, representatives, partners,
employees and assigns from any and all actions, causes of action, suits, debts,
damages, claims, demands, obligations, losses, expenses, attorneys' fees and/or
liabilities of any kind, nature and description, known or unknown, suspected or
claimed, existing prior to or after the effective date of this Settlement
Agreement and Release, based on, arising out of or in connection with the
Agreement.
6. In the event that KCSA breaches its obligations as set forth in paragraph
2, API shall be entitled to liquidated damages in an amount equal to the
difference between the proceeds of any sale at a price less than eighty-five
percent (85%) of the last sale of API stock made on the previous business day
and thirty-seven thousand dollars multiplied by the ratio the numerator of which
is the number of shares sold at such price and the denominator of which is
fifty-eight thousand. The parties agree that this liquidated damages provisions
shall not be construed as a penalty under the law.
7. Each party hereto represents and warrants to each of the other parties
hereto, that it has the full right, authority and capacity to enter into this
Agreement and grant the rights granted herein.
8. The agreements contained herein and any other consideration herein are
being made and provided by way of resolution of claims which are denied by API,
and are not an admission of any liability, responsibility, breach, wrongful
conduct or bad faith by API and shall not be interpreted or enforced as such by
any court or tribunal.
9. Each of the parties hereto shall bear their own costs and attorneys' fees
in connection with the negotiation of this Agreement. Each of the parties
hereto agrees that it will, upon request, execute any further documents and do
all acts reasonably necessary or desirable to fully effectuate the terms of this
Agreement.
10. This Agreement shall be deemed to have been made in the State of New
York, and its validity, construction and effect shall be governed by the laws of
the State of New York applicable to agreements wholly performed therein. Any
action brought under this Agreement shall be filed in the courts of the County
of New York, State of New York and the parties hereto hereby submit themselves
to the exclusive jurisdiction of such courts. In the event any provision of
this Agreement shall be found to be invalid in any respect, the validity of the
remaining provisions shall not in any way be impaired thereby.
11. This Agreement shall be binding upon and for the benefit of the parties
hereto, their respective successors, devisees, executors, affiliates,
representatives, assigns, officers, directors, shareholders, attorneys, agents
and employees.
12. This Agreement constitutes the entire agreement, written and oral,
between the parties relating to the subject matter hereof. There are no
representations, warranties, promises, covenants or undertakings with respect to
the subject matter hereof other than those expressly set forth herein, and it is
expressly understood and agreed that this Agreement may not be amended or
modified, nor may any provision be waived, in any respect, except by a writing
duly executed by the party(ies) to be charged thereby.
13. This Agreement may be executed simultaneously in two or more
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument. Any signed copy of this
Agreement or of any other document or agreement referred to herein, or copies or
counterparts thereof, delivered by facsimile transmission, shall for all
purposes be treated as if it were delivered containing an original manual
signature of the party whose signature appears in the facsimile and shall be
binding upon such party in the same manner as though an originally signed copy
had been delivered.
IN WITNESS WHEREOF, the parties hereto have duly executed this Settlement
Agreement and General Release on the year and date first above written.
KANAN, CORBIN, XXXXXXX ASIA PROPERTIES, INC.
& XXXXXX, INC.
By: By:
ASIA PROPERTIES, INC.
000 Xxxxxxxx Xxxxxx
Xxxxx 000-000
Xxxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
VIA FACSIMILE (303.262.0604 OR 5) JULY 14, 2003
Computershare Trust Co.
000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Dear Sir/Madam:
This is to inform you of the following:
1. KCSA is not at present, and has not been during the preceeding three (3)
months, an "affiliate" of Asia Properties, Inc. as that term is defined in Rule
144 of the Securities Act of 1933; and
2. KCSA acquired and provided full consideration for 58,000 shares of common
stock of Asia Properties, Inc., represented by share certificate No. 229 on May
23, 2001.
Accordingly, upon the tender of share certificate No. 229 by UBS Xxxxx Xxxxxx,
the designated of KCSA, please provide to them a certificate, or equivalent,
representing 58,000 shares of common stock of Asia Properties, Inc. free of any
restrictions or limitations.
The undersigned represents that the information furnished above is correct and
complete to the best of my knowledge, information and belief.
Please feel free to contact me if you have any questions.
Sincerely,
ASIA PROPERTIES, INC.
By:
Xxxxxx X. XxXxxxxx, President
Cc: Xxxxx X. Xxxxx, Esq. (via fax 000.000.0000)
Xxxxxx Xxxxx, UBS PaineWebber (via fax 000.000.0000)
