SETTLEMENT AGREEMENT
AND
MUTUAL RELEASE OF ALL CLAIMS
This Settlement Agreement and Mutual Release of All Claims ("Settlement
Agreement"), is entered into on the 3rd day of November, 1997 by and between
Westmark Group Holdings, Inc. ("WGHI"), a Delaware corporation ("WGHI"), and
Xxxx X. Xxxxxx, Xxxx X. Xxxxxx, E. Xxxx Xxxxxx (Xxxxxxxx), Xxxxxx Xxxxxx XX and
Xxxxxx Xxxxxx, Jr. (hereinafter collectively "Xxxxxx') and is made with
reference to the following:
RECITALS
WHEREAS, Xxxxxx invested the sum of $165,000 into WGHI on or about
October 17, 1995 (the "Investment"); and
WHEREAS, WGHI and Xxxxxx have entered into various promissory notes and
written agreements with respect to the repayment of the Investment ("prior
agreements"); and
WHEREAS, various disputes have arisen between the parties with regard to
the Investment and prior agreements pertaining to the Investment; and
WHEREAS, the parties hereto wish to settle and to resolve any and all
disputes, debts, damages, accounts, claims and demands whatsoever between them
arising out of or pertaining to the aforementioned Investment and prior
agreements;
NOW, THEREFORE, in consideration of the terms and conditions herein
contained, WGHI and Xxxxxx mutually agree as follows:
1. CONSIDERATION TO XXXXXX. WGHI covenants and agrees to do and perform
the following:
A. Payment of the sum of $165,000. WGHI shall pay to Xxxxxx the sum
of $9,167 per month commencing November 20, 1997 and continuing on
the 20th day of each month thereafter until the entire sum of
$165,000 is paid in full. In the event of a capital raise by WGHI in
the sum of $3,000,000 or more, prior to the maturity date of the
installment payments as set forth above, the entire remaining
balance shall be paid in full, within ten (10) business days after
said capital raise.
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B. WGHI shall issue 12,383 shares of post-reverse common stock of
WGHI, bearing a restrictive legend. Said shares shall be registered
in connection with the current SB-2 Registration Statement on file
with the Securities and Exchange Commission, in addition to 40,740
shares of post-reverse common stock previously issued to Xxxxxx.
Said 53,123 shares shall be issued immediately upon execution of
this agreement.
C. WGHI shall issue to Xxxxxx, warrants to purchase 125,000 shares
of post-reverse common stock of WGHI at a price of $5 per share of
common stock. Said warrants shall expire eighteen (18) months from
the date of this Settlement Agreement. Said warrants shall be issued
immediately upon execution of this agreement.
D. Interest shall continue to accrue and be paid by WGHI at the rate
of 10% per annum on the remaining balance until paid in full.
Xxxxxx covenants and agrees to accept the aforementioned cash payments,
common stock and warrants to purchase common stock of WGHI in full and final
settlement and satisfaction of any and all claims, demands, rights, entitlements
or causes of action with regard to the aforementioned Investment and all prior
agreements as set forth above.
2. RELEASE OF ALL CLAIMS. Subject to the performance of the terms and
conditions contained in this Settlement Agreement by WGHI, Xxxxxx hereby forever
releases and discharges WGHI, and its officers, directors, shareholders,
employees, agents, attorneys, affiliates, subsidiaries, successors and assigns
of and from any and all claims, rights, duties, obligations, debts, liabilities,
damages, injuries, actions and causes of action of every kind and nature
foreseen and unforeseen, contingent and actual, liquidated and unliquidated,
suspected and unsuspected, disclosed and undisclosed, whether direct or by way
of indemnity, contribution or otherwise, arising out of or relating to the
aforementioned investment and all prior agreements, written or oral, between
WGHI and Xxxxxx. Nothing contained in this Release shall operate to release or
discharge WGHI from any claims, rights or causes of action arising out of or
relating to a breach of any of the obligations hereinabove set forth.
3. NATURE OF SETTLEMENT AGREEMENT. The provisions contained in this
Settlement Agreement constitute a compromise of disputed issues. This Settlement
Agreement shall not, in any way, be construed as an admission by either party of
any unlawful, wrongful or invalid act.
4. AUTHORITY TO EXECUTE. WGHI represents that all necessary corporate
action has been taken to authorize the execution, delivery and performance by
each party to this Settlement Agreement. This Settlement Agreement is the legal,
valid and binding obligation of each party, enforceable against each party in
accordance with its terms, subject as to enforcement only as to applicable
bankruptcy, insolvency, reorganization, moratorium and other
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similar laws of general application relating to or affecting the rights of
creditors generally and to general equitable principals. This Settlement
Agreement does not violate any agreement or contract to which either party is a
party thereto.
5. GOVERNMENTAL CONSENTS. No consent, approval, qualification, order
or authorization of or filing with any local, state or federal governmental
authority is required on the part of WGHI in connection with the execution and
performance of this Settlement Agreement.
6. NO VIOLATION, CONFLICT OR DEFAULT. The execution, delivery and
performance by WGHI of this Settlement Agreement and consummation of the
transactions contemplated hereby will not result in any violation or default of
any provision of WGHI's Certificate of Incorporation or By-Laws, any statute,
law, regulation, order or decree applicable to either party or any contract,
commitment, agreement, arrangement or restriction of any kind to which WGHI, is
a party. WGHI has not entered into nor does WGHI contemplate entering into any
agreement that would alter or change the intent of this Settlement Agreement.
7. FURTHER COOPERATION. Each party hereto agrees to execute,
acknowledge, and/or deliver any and all documents reasonably necessary to carry
out and perform its obligations hereunder.
8. ENTIRE SETTLEMENT AGREEMENT. This Settlement Agreement contains the
entire Settlement Agreement and understanding between the parties as to the
settlement of all claims and supersedes and replaces all prior settlement
negotiations and proposed agreements, written and oral. The parties hereto
acknowledge that no other party or agent or attorney of any other party has made
any promise, representation or warranty whatsoever express or implied not
contained in this Settlement Agreement concerning the subject matter hereof to
induce either party to enter into this Settlement Agreement, and each party
acknowledges that it has not executed this Settlement Agreement in reliance upon
any such promise, representation or warranty not contained herein.
9. SEVERABLITY. Every provision of this Settlement Agreement is intended
to be severable. In the event any term or provision hereof is declared to be
illegal or invalid for any reason whatsoever by a tribunal of competent
jurisdiction, such illegality or invalidity shall not affect the balance of the
terms and provisions hereof, which terms and provisions shall remain binding and
enforceable.
10. NO WAIVER. The waiver, either expressed or implied, by any party
hereto of any term or condition of this Settlement Agreement, shall not
constitute a relinquishment by said party of its right to enforce the term or
condition at any later date unless this Settlement Agreement is amended in
writing to so provide for an unconditional waiver.
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11. ADVICE OF COUNSEL. Prior to the execution of this Settlement
Agreement and any other document to which reference is made herein, each party
hereto and thereto has fully understood and carefully read all of the provisions
of this Settlement Agreement. That each party has consulted with or
alternatively has had opportunity to consult with, legal counsel of its own
choice concerning the terms and conditions of this Settlement Agreement and any
other document to which reference is made herein, and such other opportunity to
participate in the drafting of this Settlement Agreement and such other
document, and that each such party to this Settlement Agreement and such other
document is voluntarily entering into this Settlement Agreement.
12. COUNTERPARTS. This Settlement Agreement may be executed in any
number of original counterparts. Any such counterpart, when executed shall
constitute an original of this Settlement Agreement, and all such counterparts
together shall constitute one and the same Settlement Agreement.
13. NO MODIFICATION. No waiver, modification or amendment of any term,
condition or provision of this Settlement Agreement shall be valid or have any
force or effect unless made in writing and signed by the parties against whom
the waiver, modification or amendment is asserted.
14. GOVERNING LAW. This Settlement Agreement shall be governed by and
interpreted according to the laws of the State of Florida.
15. INTERPRETATION. None of the parties hereto, nor their respective
counsel, shall be deemed the drafter of this Settlement Agreement for purposes
of construing the provisions hereof. The language in all parts of this
Settlement Agreement shall in all cases be construed according to its fair
meaning, not strictly for or against any of the parties hereto.
16. STOCK SPLITS AND STOCK DIVIDENDS. The number of warrants to be
issued and the underlying common shares shall be adjusted in the event of any
stock splits or stock dividends.
17. ATTORNEYS FEES. In the event Xxxxxx is required to initiate
litigation to enforce any of the provisions of this Settlement Agreement, and as
a part of any judgement obtained by Xxxxxx, Xxxxxx shall be entitled to
reasonable attorneys fees, court costs, travel expenses and other fees incurred
by Xxxxxx in connection with said litigation, in addition to any other relief
provided by law.
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IN WITNESS WHEREOF, the parties have executed this Settlement Agreement
as of the date first stated above.
WESTMARK GROUP HOLDINGS, INC.
By: /s/ illegible /s/ Xxxx X. Xxxxxx
------------------------ ------------------------------
Its: C.E.O.
/s/ Xxxx X. Xxxxxx
By: /s/ X. X. Xxxxx ------------------------------
------------------------
X. X. Xxxxx /s/ E. Xxxx Xxxxxx
Executive Vice President ------------------------------
E. Xxxx Xxxxxx (NAPORANO)
/s/ Xxxxxx Xxxxxx XX
------------------------------
Xxxxxx Xxxxxx XX
/s/ Xxxxxx Xxxxxx, Jr.
------------------------------
Xxxxxx Xxxxxx, Jr.
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