EXHIBIT 10.38
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FINAL VERSION
SETTLEMENT AGREEMENT
This Settlement Agreement ("Agreement") is made and entered into effective
as of the 30th day of April, 2001, by and among PalWeb Corporation, a Delaware
corporation (the "Company"), Crescent Road Corporation, a Texas corporation
("CRC"), Xxxxxx Capital Corporation, a Texas corporation ("CCC"), Consolidated
Capital Group, Inc., a Colorado corporation ("CCGI"), Xxxxx Xxxxxx, Xx., an
individual and the sole shareholder of CRC ("Xxxxxx"); and CCC and Xxxxxxx Xxx
Xxxxxx, an individual and the sole shareholder of CCGI ("Xxx Xxxxxx"), (CRC and
CCC are collectively referred to as the "Shareholders" and CRC, CCC, CCGI,
Xxxxxx and Xxx Xxxxxx are collectively referred to as "Xxxxxx Group") with
reference to the following circumstances:
The Company and the Xxxxxx Group desire to settle all outstanding disputes
between them in accordance with the terms of this Agreement. In consideration of
the promises and the mutual agreements contained herein the parties agree as
follows:
ARTICLE I
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BASIC AGREEMENTS
1.1 Surrender of Stock. Subject to the terms, provisions and conditions
hereof, the Xxxxxx Group acknowledges that 11,000,000 shares of Common Stock of
the Company originally issued in December 1999 and which are the subject of
pending litigation between the Company and Xxxxxx Group were not validly issued
and accordingly, Shareholders shall surrender to the Company for cancellation
all of the 10,700,000 remaining shares of Common Stock held by them ("Common
Shares") and Xxxxxx shall surrender 33,332 shares of Common Stock owned by him
("Xxxxxx Stock") all without payment of consideration by the Company. The
remaining 300,000 shares originally issued to CRC were transferred to Xxxxx
Xxxxxxxx on May 3, 2000 ("Brenneis Shares"). The Xxxxxx Group will cause the
Brenneis Shares to be returned to the Company. The Company will place a stop
transfer order on the Brenneis Shares and the Xxxxxx Group will indemnify the
Company from any claim that the Brenneis Shares have been properly issued or
that the holder thereof has any right, title or interest in the shares.
1.2 Existing Loan Agreement and Note. In full satisfaction of all
obligations of the Company under that certain loan agreement by and between
Xxxxxx and the Company dated December 1, 1999 (the "Loan Agreement") and the
corresponding note (the "Note") the Company shall pay to Xxxxxx the sum of
$300,000.
1.3 Relinquishment of Certificate for Series B Preferred Stock of the
Company. Xxxxxx is the registered owner of 408,889 shares of Series B Preferred
Stock of the Company(the "Preferred Shares"). Xxxxxx acknowledges that the
Preferred Shares have previously been cancelled and he shall return to the
Company the certificate for the Preferred Shares and agrees that he has no
interest of any kind in the Preferred Shares.
1.4 Closing. The closing (the "Closing") of the transactions contemplated
by this Agreement shall occur simultaneously with the execution of this
Agreement at such location as the parties may agree (the "Closing Date"). At the
Closing:
(a) the Company shall deliver to Xxxxxx the sum of $300,000 in full
satisfaction of the Note;
(b) the Shareholders shall deliver to the Company certificates
evidencing all of the Common Shares, duly endorsed and ready for transfer;
(c) Xxxxxx shall deliver to the Company certificates evidencing all of
the Preferred Shares, duly endorsed and ready for transfer;
(d) Xxxxxx shall deliver to the Company the Note marked paid; and
(e) the Company and the Xxxxxx Group shall also deliver such
additional documents as the Company or the Xxxxxx Group may reasonably
request in order to further document the agreements herein, including a
joint motion to dismiss with prejudice all claims and counterclaims in the
action filed by the Company titled PalWeb Corporation v. Crescent Road
Corporation, Xxxxxx Capital Corporation and Consolidated Capital
Corporation, CV 01-1225-K, filed in the 192nd Judicial District, District
Court of Dallas County, Texas on February 15, 2001 (collectively the
"Litigation").
As soon as possible after the Closing, Xxxxxx shall deliver a
certificates for the Xxxxxx Stock and Brenneis Shares, duly endorsed and
ready for transfer.
1.5. Consulting Agreements. The Company and the Xxxxxx Group hereby agree
that the Consulting Agreements dated December 1, 1999 by and between the Company
and CRC and CCGI respectively ("Consulting Agreements"), are terminated. The
Xxxxxx Group agrees that no further compensation or benefit is due or shall ever
become due to the Xxxxxx Group or anyone else in connection with such Consulting
Agreements and that all outstanding invoices from third parties, including
Pinnacle Group, LLC, have been or will be paid. The Company agrees that there
are no obligations of the Xxxxxx Group or any other persons in connection with
such Consulting Agreements. Notwithstanding the foregoing, the Company and the
Xxxxxx Group agree to equally share any fee paid to Pinnacle Group, LLC.
ARTICLE II
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REPRESENTATIONS AND WARRANTIES OF XXXXXX GROUP
The Xxxxxx Group, jointly and severally, hereby represent, warrant and
covenant to the Company as follows:
2.1 Common Shares. The Common Shares constitute one hundred percent (100%)
of Shareholders' interest, direct or indirect in the capital stock of the
Company and the Xxxxxx Stock constitutes one hundred percent (100%) of Xxxxxx'x
interest, direct or indirect, in the capital stock of the Company.
2.2 Title. Subject to the acknowledgment of the parties in Section 1.1,
Shareholders and Xxxxxx own the Common Shares and Xxxxxx Stock, respectively, of
record and beneficially, free and clear of all liens, pledges, claims, contract
restrictions, buy and sell agreements and encumbrances of any kind, other than
the claims of the Company.
2.3 Authority. Each member of the Xxxxxx Group has all right, power and
authority to enter into this Agreement and consummate the transactions described
herein, and the execution, delivery and performance of this Agreement by each
member of the Xxxxxx Group will not violate any statute, rule, judgment, order
or restriction of any government, governmental agency, or court to which any
member of the Xxxxxx Group is subject and does not conflict with, result in a
breach of, constitute a default under or require any notice under any agreement,
contract or other document to which any member of the Xxxxxx Group is a party or
are bound. This Agreement constitutes a binding obligation of each member of the
Xxxxxx Group enforceable in accordance with its terms.
2.4 No Reliance. Each member of the Xxxxxx Group has had access to all
information they deem necessary to evaluate the merits and risks of entering
into this Agreement and surrendering the Common Shares. Each member of the
Xxxxxx Group agree and understand that the Company makes no representations or
warranties regarding the financial or business condition of the Company or the
value of the Common Shares. Each member of the Xxxxxx Group waives any right
they may have to object to any term or condition of this Agreement based upon
any alleged omission to disclose any material fact with respect to the Company
or the value of the Common Shares.
2.6 Litigation. There are no legal proceedings pending or threatened
against any member of the Xxxxxx Group, which, if adversely determined, could,
in any respect, prevent or impair the ability of the any member of the Xxxxxx
Group to perform its obligations under this Agreement.
ARTICLE III
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REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents, warrants and covenants to the Xxxxxx Group
as follows:
3.1 Authority. The Company has all right, power and authority to enter
into this Agreement and to consummate the transactions described herein and the
execution, delivery and performance of this Agreement by the Company and will
not violate any statute, rule, judgment, order, or restriction of any
government, governmental agency, or court to which the
Company is subject and does not conflict with, result in a breach of, constitute
a default under or require any notice under any agreement, contract or other
document to which the Company is a party or otherwise bound. All proceedings
required to be taken by the Company, including approval of the Board of
Directors, to authorize the execution, delivery and performance of this
Agreement and the agreements relating hereto have been properly taken and this
Agreement constitutes a valid and binding obligation of the Company, enforceable
in accordance with its terms.
3.2 No Reliance. The Company has had access to all information it deems
necessary to evaluate the merits and risks of entering into this Agreement and
cancelling the Common Shares and paying the Note. The Company agrees and
understands that the Xxxxxx Group does not make any representations or
warranties regarding the financial or business condition of the Company or the
value of the Common Shares. The Company waives any right they may have to object
to any term or condition of this Agreement based upon any alleged omission to
disclose any material fact with respect to the Company of the value of the
Common Shares.
3.3 Litigation. There are no legal proceedings pending or threatened
against the Company, which, if adversely determined, could, in any respect,
prevent or impair the ability of the Company to perform its obligations under
this Agreement.
ARTICLE IV
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ADDITIONAL AGREEMENTS
4.1 Releases of Xxxxxx Group. The Xxxxxx Group, on behalf of themselves,
their heirs, personal representatives, successors and assigns, hereby fully
release, acquit and forever discharge the Company and their respective
successors, assigns, officers, directors, agents, employees, attorneys,
representatives and family members, past and present (all of such released
parties being hereinafter collectively referred to as the "Company Released
Parties"), from any and all claims, demands, liabilities, grievances and causes
of action of any kind whatsoever, whether known or unknown, contingent or
noncontingent, whether relating to personal injury, breach of contract, property
damage, economic loss or otherwise, which the Xxxxxx Group may have against the
Company Released Parties or any of them, including, without limitation, claims,
demands, liabilities, grievances and causes of action arising out of or in any
way connected with or related to (i) the ownership of capital stock or rights to
acquire capital stock of the Company; (ii) any action taken by the Company
Released Parties in connection with the operation of the business of the
Company, whether as director, officer, employee, stockholder or in any other
capacity; (iii) the Consulting Agreements; (iv) the Preferred Shares; (v) any
debts or other obligations of the Company Released Parties; and (vi) the
Litigation and the negotiation of this Agreement; provided, however, the
foregoing release shall not be construed to release any obligations of the
Company arising under the terms of this Agreement.
4.2 Releases of Company. The Company, on behalf of itself and its heirs,
personal representatives, successors and assigns, hereby fully releases, acquits
and forever discharges the Xxxxxx Group and their respective successors,
assigns, officers, directors, agents, employees, attorneys, representatives and
family members, past and present (all of such released parties being hereinafter
collectively referred to as the "Xxxxxx Released Parties"), from any and all
claims, demands, liabilities, grievances, causes of action of any kind
whatsoever, whether known or unknown, contingent or not contingent, whether
relating to personal injury, property damage, economic loss or otherwise, which
the Company may have had or may now have against the Xxxxxx Released Parties or
any of them, including, without limitation, claims, demands, liabilities,
grievances and causes of action arising out of or in any way connected with or
related to (i) the ownership of capital stock, or rights to acquire any capital
stock of the Company; (ii) any action taken by the Xxxxxx Released Parties in
connection with the operation of the business of the Company, whether as
director, officer, employee, stockholder or in any other capacity; (iii) any
action relating to the performance under the Consulting Agreements; (iv) any
debts or obligations of the Xxxxxx Released Parties to the Company; and (v) the
Litigation and the negotiations relating to this Agreement; provided, however,
the foregoing release shall not be construed to release any obligations of the
Xxxxxx Group arising under the terms of this Agreement.
4.3 Indemnification by Company. The Company shall indemnify and hold
harmless the Xxxxxx Group from any claim, liability, cost or expense that the
transactions contemplated by this Agreement constitute a preferential transfer
or fraudulent transfer.
ARTICLE V
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GENERAL
5.1 Integration; Amendment. This Agreement constitutes the entire agreement
of the parties with respect to the subject matter hereof and may not be
modified, amended or terminated except by written agreement specifically
referring to this Agreement signed by all of the parties hereto.
5.2 Binding Effect. This Agreement shall be binding upon and inure to the
benefit of each corporate party hereto, its successors and assigns and each
individual party to and his heirs, personal representatives, successors and
assigns.
5.3 Further Assurance. Each party hereto shall cooperate and shall take
such further action and execute and deliver such further documents as may be
reasonably requested by any other party in order to carry out the provisions and
purposes of this Agreement.
5.4 Counterparts. This Agreement may be executed in one or more
counterparts by different parties on separate counterparts, each of which as so
executed shall be deemed to be an original, and all such counterparts, taken
together, shall constitute one and the same instrument. This Agreement shall be
effective when all parties have executed at least one counterpart.
5.5 Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Oklahoma.
5.6 Survival. The representations and warranties and obligations contained
herein of all parties shall survive the Closing.
Executed as of the date first above written.
PALWEB CORPORATION
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx, Chairman of
the Board and President
CRESCENT ROAD CORPORATION
By: /s/ Xxxxx Xxxxxx, Xx.
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Xxxxx Xxxxxx, Xx., President
XXXXXX CAPITAL CORPORATION
By: /s/ Xxxxx Xxxxxx, Xx.
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Xxxxx Xxxxxx, Xx., President
/s/ Xxxxx Xxxxxx, Xx.
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Xxxxx Xxxxxx, Xx., Individually
CONSOLIDATED CAPITAL GROUP, INC.
By: /s/ Xxxxxxx Xxx Xxxxxx
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Xxxxxxx Xxx Xxxxxx, President
/s/ Xxxxxxx Xxx Xxxxxx
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Xxxxxxx Xxx Xxxxxx, Individually
