EXHIBIT 10.1
SETTLEMENT AGREEMENT AND
MUTUAL RELEASE OF ALL CLAIMS
This settlement Agreement and Mutual Release of All Claims ("Agreement"),
dated March 27, 1996, is executed by and between Westmark Group Holdings, Inc.
("WGHI"), a Colorado corporation, and Xxxxx Xxxxxxx ("Xxxxxxx"), and is made
with reference to the following:
RECITALS
WHEREAS, WGHI retained Xxxxxxx beginning in 1994 and continuing into 1995,
and agreed to pay Xxxxxxx for services provided; and
WHEREAS, Xxxxxxx performed services on behalf of WGHI and billed it for
such services on an hourly basis;
WHEREAS, WGHI has informed Xxxxxxx that it is unable to pay in cash the
amounts owed to Xxxxxxx for such services and has requested that Xxxxxxx accept
the form of payment as set forth herein;
WHEREAS, the parties hereby wish to settle and to resolve any and all
disputes, debts, damages, accounts, claims and demands whatsoever between them
arising from Xxxxxxx'x representation of WGHI and Xxxxxxx'x claims for payments
owned by WGHI to Xxxxxxx for legal representation of WGHI.
NOW, THEREFOR, in consideration of the terms set forth below in Sections 1
and 2 of this Agreement, and the other covenants and conditions contained
herein, WGHI and Xxxxxxx mutually agree as follows:
1. On or before Xxxxx 00, 0000, XXXX at its own cost and expense will file
with the U.S. Securities and Exchange Commission ("SEC") a Registration
Statement on Form S-1 or SB-1 ("Registration Statement") covering the issuance
to Xxxxxxx of such number of shares of WGHI common stock as calculated pursuant
to the terms of Section 2 hereof. WGHI will use its best efforts to cause the
SEC to declare the Registration Statement effective under Section 5 of the
Securities Act of 1993 on or before June 1, 1996.
2. Immediately upon the effectiveness and qualification of the
Registration Statement, WGHI will issue to Xxxxxxx 35,000 shares. All such WGHI
shares shall be fully paid, nonassessable, duly authorized and validly issued
and will be free and clear of all preemptive rights, rights of first refusal,
liens, charges, restrictions, claims and encumbrances. WGHI agrees that it will
sell the Xxxxxxx shares in an orderly manner through the brokerage firm
designated by WGHI, or such other brokerage firm as agreed to by the parties.
Westmark shall
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cause the registration issuance and sale of sufficient shares to enable Xxxxxxx
to receive no less than $5,859 per month commencing June 15, 1996 and continuing
on the 15th day of each thereafter until the entire balance shall have been paid
in full. WGHI agrees to register, qualify and issue to Xxxxxxx additional WGHI
shares to the extent the number of WGHI shares originally registered, qualified
and issued are insufficient to net $5,859 per month commencing June 15, 1996.
Once Xxxxxxx has netted $70,300, any remaining WGHI shares will be returned to
WGHI and shall be retired.
3. If at any time WGHI fails to perform its obligations as set forth
hereinabove, WGHI shall be in default of this Agreement and Xxxxxxx shall be
entitled to proceed with any and all remedies provided at law or in equity.
4. Xxxxxxx hereby releases and forever discharges WGHI, and all of its
past, present and future attorneys, officers, directors, employees, agents,
insurers, successors and assigns from any and all claims, demands, obligations
or causes of action of any nature whatsoever, whether in law or in equity, or
whether for contractual, compensatory or punitive damages, which have arisen or
may arise out of WGHI alleged failure to pay for services rendered on its behalf
by Xxxxxxx, and any past, present or future partners or employees; provided,
however, that the release, set forth herein does not in any way pertain to
WGHI's obligations to Xxxxxxx set forth herein, including without limitation,
the obligations set forth in Sections 1 or 2 hereof.
5. WGHI hereby releases and forever discharges Xxxxxxx, and all of its
past, present and future partners, attorneys, officers, directors, employees,
agents, insurers, successors and assigns, from any and all claims, demands,
obligations or causes of action of any nature whatsoever, whether in law or in
equity, or whether for contractual, compensatory or punitive damages, which have
or may arise out of Xxxxxxx performance of services on behalf of WGHI, or
failure thereof, and any and all other claims or causes of action WGHI may have
against Xxxxxxx, whether real or imaginary or known or unknown at this time.
6. Subject to satisfaction of the terms set forth in Sections 1 and 2 all
parties hereto acknowledge that they execute and agree to this Agreement, and
accept the terms set forth herein, as a complete compromise of all matters
involving disputed issues of law and fact and fully assume, thereby, the risk
that the facts or law may be other than they believe.
7. The parties hereto acknowledge and understand that this Agreement
creates new obligations and rights between them. Except as otherwise provided
for in this Agreement, each party expressly waives and assumes the risk of any
and all claims for damages which exist as of this date, but of which it is
unaware, whether through ignorance, oversight, error, negligence or otherwise,
and which, if known to Xxxxxxx or to WGHI, would materially affect their
decision to enter into this Agreement. Each party further assumes the risk that
it may suffer damages in the future which it does not now anticipate nor
suspect. Each party waives all rights under California Civil Code Section 1542,
which states as follows:
"A general release does not extend to claims which the creditor does not
know
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or expect to exist in his favor at the time of executing the release,
which if known by him must have materially affected his settlement with
the debtor."
8. Each party warrants and represents to the other that it has not
assigned, conveyed or transferred any of the claims or possible claims against
any of the parties hereto (or any interest therein) which are released or
referred to herein and that the releases herein are what they purport to be.
In the event of an adjudication that either party is in breach of this
Section, the party in breach agrees to indemnify and hold harmless the other
party from any resulting liability, claim, demand, damage, cost, expense and/or
attorney's fees incurred by the other party as a result of the breach.
9. Xxxxxxx agrees and acknowledges that it will accept the payments and
the registration, issuance and sale of the WGHI shares specified hereinabove as
a full and complete compromise of matters involving disputed issues as to
Xxxxxxx. Each of Xxxxxxx and WGHI agrees and acknowledges that neither this
Agreement, nor delivery of the WGHI shares by WGHI herein, or any event
occurring during the negotiations for this Agreement (nor any statement or
communication made in connection therewith) by either party, or their attorneys
or representatives, shall be considered an admission by any party of any act or
omission to act, or of any responsibility or liability for any claims, suits,
actions or any facts, representations or misrepresentations regarding any of the
parties, and that no past nor present wrongdoing on the part of either party
shall be implied therefrom.
10. Each party represents and warrants that it has full authority to enter
into this Agreement and to release all of the claims, known or unknown, which
are the subject matter of the releases herein.
11. This Agreement is binding upon, and shall inure to the benefit of,
each of the parties and their respective officers, directors, investors, agents,
representatives, partners, predecessors, successors and assigns.
12. WGHI hereby represents and warrants that as of the date of its
execution of this Agreement it has sufficient shares of common stock duly
authorized and available in order to comply with the terms of Sections 1 and 2
hereof. WGHI agrees that it will reserve and keep available for issuance
sufficient shares of its common stock so that it can comply with its obligations
set forth in Sections 1 and 2 hereof.
13. This Agreement contains the entire agreement between the parties and
supersedes and replaces any and all prior or contemporaneous agreements or
understandings, whether written or oral, with regard to the matters set forth
herein. This Agreement may be amended or modified in whole or in part at any
time, but only by a written agreement executed by both parties in the same
manner as this Agreement.
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14. This Agreement has been negotiated, and is entered into, in the State
of Florida, County of Palm Beach. The validity, interpretation, construction
and enforcement of this Agreement shall be construed, interpreted and governed
pursuant to Florida law.
15. In entering into this Agreement, each party represents that:
(a) It has read the Agreement and has had the opportunity to consult
with its attorneys, who are the attorneys of its own choice,
during the negotiation and preparation of this Agreement.
(b) It fully understands and is aware of the terms of this Agreement,
and the legal consequences thereof, and voluntarily accepts them;
and
(c) Its counsel has reviewed and revised, or has had the opportunity
to review and revise this Agreement, and accordingly the normal
rule of construction, which states to the effect that any
ambiguities are to be resolved against the drafting party, shall
not be employed in the interpretation of this Agreement.
16. Each party represents and warrants that no other person or entity has
or has had any interest in the claims, demands, obligations or causes of action
referred to in this Agreement. Each party further warrants and represents that
the individuals executing this Agreement are duly authorized by the respective
parties to bind the parties to the terms of this Agreement.
17. Failure by either party at any time to require performance of any
provision of this Agreement shall not limit the right of that party to enforce
such performance or provision at any time, nor shall either party's waiver of
any breach by the other party of any provision of this Agreement by a waiver of
any succeeding breach by that other party of that same provision, or of any
other provision of this Agreement.
18. The parties agree that any notices to be provided pursuant to this
Agreement shall be addressed to the respective parties as follows:
Westmark Group Holdings, Inc. Xxxxxxx & Associates
000 X.X. Xxxxx Xxx., Xxxxx 0 1504 "R" Street N.W.
Xxxxxx Xxxxx, Xxxxxxx 00000 Xxxxxxxxxx, X.X. 00000
and
Xxxxx X. Xxxxxxxx, Esq.
0000 00xx Xxx., Xxxxx X
Xxxxxxxx, Xxxxxxxxxx 00000
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Each party shall notify the other party by certified mail of any change of
address or change of the person designated herein to receive notices to be
provided pursuant to this Agreement. Once a party has received notice of a
change of address or designated person, that party shall send all future notices
to be provided in this Agreement to that address and designated person.
19. This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which shall together constitute one and the same
document. It shall not be necessary, in making proof of this Agreement, to
produce or account for more than one counterpart.
20. The exercise date for any stock options previously granted to Xxxxxxx
shall be extended up to and including the date of final payment of the
obligation hereinabove set forth.
IN WITNESS WHEREOF, the parties have duly executed this Agreement on the
dates set forth below.
DATED: DATED: 4/2/96
XXXXXXX & ASSOCIATES WESTMARK GROUP HOLDINGS, INC.
By: /s/ XXXXX X. XXXXXXX By: /s/ XXXXXX BIRMINGHAM
Its: Its: President
