SETTLEMENT AGREEMENT
This Settlement Agreement ("Agreement") is entered into on the 23rd day
of January, 1997 by and between Westmark Group Holdings, Inc., a Delaware
corporation ("WGHI") and Xxxxxxx X. Xxxxxxx ("Xxxxxxx") and Xxxxx Xxxxx
("Xxxxx"), and is made in reference to the following:
RECITALS
WHEREAS, Xxxxxxx and Xxxxx were former employees of WGHI and previously
entered into employment agreements, termination agreements, and consulting
agreements with WGHI and;
WHEREAS, Xxxxxxx is the Lessor and WGHI is the Lessee of the premises
located at 000 Xxxxxxxxx 0xx Xxxxxx, Xxxxxx 0, 3, and 4, Delray Beach, Florida
and;
WHEREAS, various disputes have arisen by and between the parties with
regard to the aforementioned agreements;
WHEREAS, the parties hereto wish to settle and to resolve any and all
disputes, debts, damages, accounts, claims and demands whatsoever between the
parties arising from the aforementioned agreements;
NOW, THEREFORE, in consideration of the terms and conditions
hereinafter set forth and other covenants and conditions contained herein, WGHI,
Xxxxxxx, and Xxxxx mutually agree as follows:
1. XXXXXXX UNPAID SALARY AND EXPENSES. WGHI covenants and agrees to pay
unpaid salary and expenses to Xxxxxxx as follows:
a. $115,000 shall be paid contemporaneously with the close of any
transaction wherein WGHI shall receive additional capitalization in the
minimum sum of $3,000,000 dollars. If no additional capitalization
closure shall occur within ninety (90) days from date of this
agreement, said $115,000 shall be paid by the issuance of S-8 shares in
the same manner as set forth in paragraph 1b hereafter.
b. The balance in the sum of $114,000 shall be paid through the
issuance of registered S-8 shares of WGHI common stock with a net value
of $114,000. A form S-8 Registration Statement shall be filed by WGHI
no later than January 30, 1997 and shares shall be issued immediately
thereafter.
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c. Interest in the sum of $31,000 shall be satisfied by the partial
assignment of a promissory note receivable or shares of common stock
of Green World Technologies, Inc., received by WGHI in the event of
either a sale or "spin-off" of Green World Technologies, Inc.
d. Unpaid business expenses in the sum of $1,000 shall be reimbursed by
WGHI within thirty (30) days from the date of this Agreement.
2. RENTAL OBLIGATION. WGHI acknowledges that pursuant to the terms and
conditions of an existing lease agreement between WGHI and Xxxxxxx, regarding
the premises located at 000 Xxxxxxxxx 0xx Xxxxxx, suites 2, 3 and 4, Delray
Beach, Florida. WGHI owes monthly rental for suites 2, 3 and 4, for the months
of August through December 1996 and January 1997 in the total sum of $13,800.
WGHI covenants and agrees to pay the sum of $13,800 as follows:
a. WGHI shall pay the sum of $4,600 on or before February 5, 1997.
b. WGHI shall pay the balance in the sum of $9,200 no later than
February 23, 1997.
3. XXXXXXX CONSULTING FEES. WGHI acknowledges that pursuant to a
consulting agreement entered into by and between WGHI and Xxxxxxx, WGHI is
obligated for the payment of $45,000 for accrued consulting fees through
January, 1997. WGHI covenants and agrees to pay the sum of $45,000 through the
issuance of registered S-8 shares with a net value of $45,000. A form S-8
Registration Statement shall be filed by WGHI no later than January 30, 1997 and
shares shall be issued immediately thereafter. The parties acknowledge that
during the remaining term (22 months) of the consulting agreement, consulting
fees shall be paid in cash or through the issuance of S-8 common stock on a
monthly basis in the sum of $7,500 per month.
4. XXXXXXX AUTOMOBILE. WGHI covenants and agrees to reimburse Xxxxxxx
for various automobile lease expenses in the total sum of $5,400. WGHI shall pay
Xxxxxxx aforesaid lease expenses in the sum of $5,400 no later than thirty (30)
days from the date of this Agreement. Xxxxxxx shall have possession of said
vehicle, a 1995 Mercedes, until February 1, 1997 at which time said vehicle
shall be returned to WGHI and WGHI will hold Xxxxxxx free and harmless and
indemnify Xxxxxxx from any and all liability with respect to said lease
agreement other than property damage or personal injury that may occur while
said vehicle is in the possession of Xxxxxxx. Xxxxxxx agrees to indemnify and
hold WGHI harmless therefrom. WGHI shall cause the release of Xxxxxxx from the
existing lease agreement or satisfy the balance owing pursuant to said lease
agreement within thirty (30) days of the date of this Agreement.
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5. XXXXXXX STOCK OPTIONS. WGHI shall grant to Xxxxxxx an option to
purchase 125,000 shares of the common stock of WGHI at a price of $1 per share.
Said stock option shall vest upon execution of this Agreement and must be
exercised within one (1) year thereafter. Said stock option shall be pari passu
with the terms and conditions of the stock option granted to Xxxx Xxxxxxxxxx,
C.O.O., WGHI. The underlying shares shall be included in the current SB-2
Registration Statement or registered pursuant to a form S-8 Registration
Statement.
6. XXXXXXX WARRANTS. WGHI hereby grants to Xxxxxxx 100,000 warrants to
purchase the common stock of WGHI at a strike price of $.81 per share. Said
warrants will expire one (1) year from the date of this Agreement.
7. XXXXX UNPAID SALARY. WGHI covenants and agrees to pay the sum of
$80,000 to Xxxxx as follows:
a. $40,000 shall be paid contemporaneously with the close of any
transaction wherein WGHI shall receive additional capitalization in the
minimum sum of $3,000,000. If no additional capitalization closure
shall occur within ninety (90) days from the date of this Agreement,
said $40,000 shall be paid by the issuance of S-8 shares in the manner
set forth in paragraph 7b hereinafter.
b. The balance in the sum of $40,000 shall be paid through the issuance
of registered S-8 shares of WGHI common stock with a net value of
$40,000. A form S-8 Registration Statement shall be filed by WGHI no
later than January 30, 1997 and shares shall be issued immediately
thereafter.
c. Interest in the sum of $9000 shall be satisfied by the partial
assignment of a promissory note receivable or shares of common stock
of Green World Technologies, Inc. received by WGHI in the event of
either a sale or "spin-off" of Green World Technologies, Inc.
8. XXXXX CONSULTING FEES. WGHI acknowledges that pursuant to a
consulting agreement entered into by and between WGHI and Xxxxx, WGHI is
obligated for the payment of $24,000 for accrued consulting fees through January
1997. WGHI covenants and agrees to pay the sum of $24,000 through the issuance
of registered S-8 shares of WGHI common stock with a net value of $24,000. A
form S-8 Registration Statement shall be filed by WGHI no later than January 30,
1997 and shares shall be issued immediately thereafter. The parties acknowledge
that during the remaining term (4 months) of the consulting agreement,
consulting fees shall be paid in cash or through the issuance of S-8 common
stock on a monthly basis of the sum of $4,000.
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9. XXXXX STOCK OPTIONS. WGHI shall grant to Xxxxx an option to purchase
67,000 shares of the common stock of WGHI at a price of $1 per share. Said stock
option shall vest upon execution of this Agreement and must be exercised within
one (1) year thereafter. Said stock option shall be pari passu with the terms
and conditions of the stock option granted to Xxxx Xxxxxxxxxx, C.O.O., WGHI. The
underlying shares shall be included in the current SB-2 Registration Statement
or registered pursuant to a form S-8 Registration Statement.
10. XXXXX WARRANTS. WGHI hereby grants to Xxxxx 53,333 warrants to
purchase the common stock of WGHI at a strike price of $.81 per share. Said
warrants will expire one (1) year from the date of this Agreement.
11. RELEASE. Subject to the receipt of the consideration hereinabove
provided, each of the parties hereto forever releases and discharges the other
party and its officers, directors, shareholders, employees, agents affiliates,
subsidiaries, attorneys, 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 in 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 employment
agreements, terminations agreements, consulting agreements through January 31,
1997, lease agreement through January 31, 1997, together with any other written
or oral agreements or the ownership of common stock, warrants or options to
purchase common stock of WGHI. Nothing contained herein shall operate to release
or discharge any party or its successors and assigns from any claims arising out
of or relating to a breach of any of the obligations contained in this
Agreement.
12 NATURE OF AGREEMENT. The provisions contained in this Agreement
constitute a compromise of disputed issues. This Agreement shall not, in any
way, be construed as an admission by either party of any unlawful, wrongful or
invalid act.
13. AUTHORITY TO EXECUTE. Westmark represents that all necessary
corporate action has been taken to authorize the execution, delivery and
performance by each party to this Agreement. This 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 similar laws of
general application relating to or affecting the rights of creditors generally
and to general equitable principals. This Agreement does not violate any
agreement or contract to which either party is a party thereto.
14. 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.
15. ENTIRE AGREEMENT. This Agreement contains the entire Agreement and
understanding between the parties as to the settlement of all claims and
supersedes and replaces
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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 Agreement concerning the subject matter hereof to
induce either party to enter into this Agreement, and each party acknowledges
that it has not executed this Agreement in reliance upon any such promise,
representation or warranty not contained herein.
16. SEVERABILITY. Every provision of this 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.
17. NO WAIVER. The waiver, either expressed or implied, by any party
hereto of any term or condition of this Agreement, shall not constitute a
relinquishment by said party of its right to enforce the term or condition at
any later date unless this Agreement is amended in writing to so provide for an
unconditional waiver. Prior to the execution of this 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 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 Agreement and any other document to which reference is made
herein, and such other opportunity to participate in the drafting of this
Agreement and such other document, and that each such party to this Agreement
and such other document is voluntarily entering into this Agreement.
18. COUNTERPARTS. This Agreement may be executed in any number of
original counterparts. Any such counterpart, when executed shall constitute an
original of this Agreement, and all such counterparts together shall constitute
one and the same Agreement.
19. NO MODIFICATION. No waiver, modification or amendment of any term,
condition or provision of this 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.
20. GOVERNING LAW. This Agreement shall be governed by and interpreted
according to the laws of the State of Florida.
21. INTERPRETATION. None of the parties hereto, not their respective
counsel, shall be deemed the drafter of this Agreement for purposes of
construing the provisions hereof. The language in all parts of this Agreement
shall in all cases be construed according to its fair meaning, not strictly for
or against any of the parties hereto.
22. ATTORNEY'S FEES TO ENFORCE THIS AGREEMENT. In the event that any
action is commenced to seek enforcement of this Agreement or a declaration of
rights.
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thereunder, the prevailing party in such action shall be entitled to recover its
reasonable attorney's fees and costs incurred in connection with that action.
23. JURISDICTION AND VENUE. In the event that any action is commenced
to seek enforcement of this Agreement or a declaration of rights thereunder, the
jurisdiction and venue for any such action shall be in Palm Beach County,
Florida.
24. TIME OF THE ESSENCE. Time is expressly of the essence.
25. LATE FEE. In the event any payment is not paid within fifteen (15)
days of its due date, WGHI shall pay a late fee equal to 10% (ten) percent of
the amount of such late payment, which shall be due immediately.
26. WARRANT PROCEDURE. The warrants referred to herein shall expire 18
months from the date of this Agreement. WGHI agrees to register the underlying
shares within 6 months from the date herein and in the absence of registration
Xxxxx and or Xxxxxxx shall have the right to "put" the warrants to WGHI in which
event WGHI shall pay to Xxxxx and or Xxxxxxx the difference between 81 cents and
the closing bid price on the date of the "put" demand. The "put" shall expire 18
months from the date of this agreement or the earlier date of an effective
registration statement registering the underlying shares.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first stated above.
WESTMARK GROUP HOLDINGS, INC.
By: /s/ Xxxx Xxxxxxxxxx /s/ Xxxxxxx X. Xxxxxxx
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XXXX XXXXXXXXXX XXXXXXX X. XXXXXXX
Its: Chief Operating Officer
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____________________________
XXXXX XXXXX
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