SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE
118EXECUTION
COPY
SETTLEMENT
AGREEMENT AND MUTUAL GENERAL RELEASE
This
Settlement Agreement and Mutual General Release (“Agreement”) is entered into as
of this 14th day of January, 2008 (hereinafter "Settlement Date") by and
among
the following settling parties ("Settling Parties"):
|
1.
|
Plaintiff
AMERIWEST ENERGY CORP. fka SOUTH SEA ENERGY CORP. fka XXXXXX VENTURES,
INC. and any and all parents, subsidiaries, affiliates, officers,
directors, owners, shareholders, divisions, employees, predecessor
corporations, successor corporations, related corporations employees,
agents, administrators, attorneys, insurance carriers, reinsurance
carriers, partners, joint venturers, dba’s, associates, trustees,
beneficiaries, executors, heirs, and each of them, jointly and
severally
(hereinafter collectively referred to as
"Ameriwest");
|
|
2.
|
Defendant
PI FINANCIAL CORPORATION fka PACIFIC INTERNATIONAL SECURITIES,
INC. and
any and all parents, subsidiaries, affiliates, officers, directors,
owners, shareholders, divisions, employees, predecessor corporations,
successor corporations, related corporations employees, agents,
administrators, attorneys, insurance carriers, reinsurance carriers,
partners, joint venturers, dba’s, associates, trustees, beneficiaries,
executors, heirs, and each of them, jointly and severally (hereinafter
collectively referred to as "PI
Financial”).
|
1. Background
& Purpose
1.1 There
is
now pending in the Second Judicial District Court, Washoe County, Nevada
a
lawsuit entitled Ameriwest
Energy Corp. x. Xxxxxx Financial Services Canada, et al.,
Case
Number CV07 02229 (the "Action"). The Action was commenced against PI Financial
and various other parties that Ameriwest believes traded in fictitously created
shares of Ameriwest stock. The operative complaint of Plaintiff includes
causes
of action for declaratory relief and preliminary and permanent
injunction.
1.2 On
or
about May 4, 2007, Ameriwest filed a form 8-K making a public disclosure
and
announcement of a 3.6 to 1 forward stock split. On or about May 14, 2007,
Ameriwest’s Transfer Agent, Empire Stock Transfer, filed a transfer agent
verification form with NASDAQ verifying the 3.6 to 1 forward stock split
and
issued post-split shares. PI Financial purchased 20,000 post-split shares
in an
open market transaction from Xxxxxx Securities LLC on June 18, 2007.
Nevertheless, PI Financial ultimately received a total of 72,000 shares as
a
result of a second 3.6 to 1 stock split announced by the Depository Trust
Company (“DTC”). PI Financial is currently holding 52,000 shares of fictitious
“double split” stock of Ameriwest in a suspense account.
1.3 It
is the
intent of the Settling Parties to avoid the cost and expense of further
litigation among them as it relates to the Action. The Settling Parties dispute
all of the allegations made against them by the other, whether alleged or
not,
and deny that they have any liability towards the other. The Settling Parties
have agreed to settle any and all disputes and claims which do or may exist
between them, or may exist in the future, arising from, based upon or related
to
the facts, circumstances or conditions alleged in the Action, on the terms
and
conditions set forth below.
2. Settlement
Terms
In
consideration of the mutual releases and agreements contained herein, the
Settling Parties have agreed to settle the Action and any and all disputes
between them as follows:
EXECUTION
COPY
2.1 PI
Financial agrees and covenants to deliver to the Xxxxxxxxx Genshlea Chediak
law
corporation physical share certificates for 52,000 shares of Ameriwest stock
with Cusip No. 030757 10 8, registered in the name of Xxxxxxxxx Genshlea
Chediak
law corporation, In Trust.
2.2 PI
hereby
releases
any
claim of
right,
title or interest in
or to
the
52,000 shares of Ameriwest stock with Cusip No. 030757 10 8.
2.3 Plaintiff
Ameriwest agrees and covenants to investigate and return the 52,000 shares
to
the original party that overdelivered such shares that were ultimately received
by PI Financial.
2.4 Plaintiff
Ameriwest shall file a dismissal with
prejudice of
its
Complaint in the Action as to PI Financial only,
and
each and every cause of action asserted therein against PI Financial
only,
within
five (5) days after delivery of the 52,000 shares of Ameriwest stock
with
Cusip No. 030757 10 8 as set forth in Section 2.1 above.
3. Mutual
Release
3.1 The
Settling Parties represent that they have the legal authority to enter into
this
Agreement and to give the following releases with respect to the Action.
The
Settling Parties specifically warrant that they have the authority to release
all claims and execute this Agreement and enter into the settlement which
is the
subject of this Agreement.
3.2 In
consideration for the agreements set forth herein, Ameriwest and PI Financial,
and each of their respective assigns, heirs and beneficiaries, hereinafter
forever release and discharge each other party and their respective assigns,
heirs and beneficiaries, and each of them, from and against any and all claims,
demands, controversies, causes of action, obligations, liabilities, costs,
expenses, attorneys' fees, expert fees and damages of whatever character,
nature
and kind in law or in equity, past, present or future, known or unknown,
suspected or unsuspected, from the beginning of time to the present, arising
from, relating to or in connection with the Action or the allegations, facts
and
circumstances set forth therein.
3.3 The
releases provided in the section shall be effective as a bar to all claims,
demands, controversies, causes of action, liabilities, costs, expenses,
attorneys' fees, and damages of whatever character, nature or kind, known
or
unknown, suspected or unsuspected, as well as those specified to be so barred
and set forth in this Section 3 entitled "Mutual Release." It is the specific
intention of all Settling Parties that the releases shall apply to these
Settling Parties as well as to all firms, corporations, entities, employees,
partners, agents, divisions, shareholders, directors and affiliates of the
Settling Parties. The parties to this Agreement specifically intend to avoid
the
result/decision reached by the Nevada Supreme Court in Xxxx
x. General Motors Corporation,
111
Nev. 1431 (1995).
3.4 Settling
Parties specifically understand and acknowledge that the releases referenced
above have been separately bargained for and expressly consented to and that
this Agreement will be given full force and effect in accordance with each
and
all of the terms and provisions, including those terms and provisions relating
to known and unknown claims.
3.5 Covenant
Not to Xxx.
Each
party agrees to refrain from initiating, prosecuting or maintaining (or causing
or assisting in the initiation, prosecution or maintenance of) any action,
suit,
claim or administrative proceeding against the other party to this Agreement
based on any claim released pursuant to Section 3.2 above, and each further
agrees not to file any complaints, petitions, motions or other proceedings
with
respect thereto. Ameriwest and PI Financial represent and warrant that neither
has filed any such complaints, petitions, motions, or other
proceedings.
EXECUTION
COPY
4. Miscellaneous
Provisions
4.1 Entire
Agreement.
This
Agreement constitutes the full and entire agreement between the parties hereto
and each such party acknowledges that there is no other agreement, oral and/or
written, between the parties hereto. This Agreement may be amended only by
a
written instrument signed by all parties hereto. This is an integrated agreement
and this writing is intended as a complete and exclusive statement of the
terms
of the parties' agreement with respect to the subject matter
hereof.
4.2 Construction.
The
parties to this Agreement, and each of them, acknowledge that (1) this Agreement
and its reduction in final written form are a result of good faith negotiations
between the parties through their respective attorneys, (2) the parties and
their attorneys have reviewed and examined this Agreement before execution
by
said parties or any of them, and (3) any statutory rule of construction,
including that ambiguities are to be construed against the drafting party,
will
not be employed in the interpretation of this Agreement.
4.3 Attorneys
Fees.
Each
party to this Agreement will bear its own attorneys' fees, expert fees and
costs
in connection with the prosecution, settlement and/or defense of this Action,
provided however, that in the event that a party is required to enforce the
terms of this Agreement against a party who is alleged to have breached this
Agreement, the prevailing party shall be entitled to recover its attorney's
fees
and costs incurred in enforcing this Agreement.
4.4 Severability.
The
paragraph headings are for reference only and do not affect the interpretation
of any paragraph hereof. If any provision of this Agreement is held to be
illegal or invalid by a court of competent jurisdiction, such provision will
be
deemed to be severed and deleted and neither such provision nor severance
and
deletion will affect the validity of the remaining provisions.
4.5 Counterparts.
This
Agreement may be executed in counterparts and when executed by all parties
will
be binding upon all signatories hereto, notwithstanding that the original
signatures do not appear on the same copy of the document. A facsimile copy
may
be deemed an original. In addition to the foregoing, all parties to this
Agreement agree to cooperate with each other in executing all appropriate
documents which must be executed in order to fulfill the intent of the parties
pursuant to the terms of this Agreement.
4.6 Representation
of Authority. Each
of
the parties hereto represents and warrants that he, she and/or it has not
heretofore assigned or transferred or purported to assign or transfer to
anyone
any claim, demand, action or cause of action based upon, arising out of,
or in
any way related to any of the matters or things released herein other than
as
provided herein. Each individual signing this Agreement acknowledges that
he or
she has the full authority to enter into this Agreement and bind such individual
party or entity to the terms of this Agreement.
4.7 Waiver.
No
breach of any provision hereof can be waived unless in writing. Waiver of
any
one breach shall not be deemed to be a waiver of any other breach of the
same or
any other provision hereof.
4.8 Investigation.
The
Parties hereto acknowledge and represent that each has conducted such
investigation of the facts and the law pertaining to the matters released
hereby
as they deem necessary, and that in entering into this Agreement, they have
not
relied on any statement, promise or representation of any other Party or
any
representative of such other Party.
EXECUTION
COPY
4.9 Amendment. The
provisions of this Agreement may be modified at any time by agreement of
the
Parties. Any such agreement hereafter made shall be ineffective to modify
this
Agreement in any respect unless in writing and signed by the Party against
whom
enforcement of the modification or discharge is sought.
4.10 Succession.
This
Agreement shall be binding upon and for the benefit of the Parties and their
respective predecessors, successors, owners, members, heirs, devisees,
executors, affiliates, representatives, assigns, officers, directors,
shareholders, partners, attorneys, agents and employees wherever the context
requires or admits.
4.11 Representation
by Counsel.
This
Agreement has been carefully read by all Parties and the contents hereof
are
known and understood by all Parties. The Parties have each received independent
legal advice from attorneys of their choice with respect to the preparation,
review and advisability of executing this Agreement. Prior to the execution
of
this Agreement by each Party, the Party’s attorney has reviewed the Agreement
and each Party acknowledges that they have executed this Agreement after
independent investigation and without fraud, duress or undue
influence.
4.12 Governing
Law.
The
rights and obligations of the Parties
and the interpretation and performance of this Agreement shall be governed
by
the law of the State of Nevada excluding its conflict of laws
rules.
4.13 Cooperation.
The
Parties each agree on behalf of themselves, their respective predecessors,
successors, owners, members, heirs, devisees, executors, affiliates, related
entities, representatives, assigns, officers, directors, shareholders, partners,
attorneys, agents and employees, to execute all documents necessary to fulfill
the terms of this Agreement.
4.14 Notice.
Any
notice required to be provided as stated in this Agreement shall be via U.S.
mail, certified, return receipt requested, and sent to:
AMERIWEST
c/o
Xxxx
X. Xxx, Esq.
Xxxxxxxxx
Genshlea Chediak, A Law Corporation
000
Xxxxxxx Xxxx, 00xx
Xxxxx
Xxxxxxxxxx,
XX 00000
Fax
No.
(000) 000-0000
PI
FINANCIAL
c/o
Xxxx
X. Xxxxxxxx, Esq.
Jeffer,
Mangels, Xxxxxx & Marmaro LLP
0000
Xxxxxx xx xxx Xxxxx, 0xx
Xxxxx
Xxx
Xxxxxxx, XX 00000
Fax
No.
(000) 000-0000
5.15 Each
of
the parties to this Agreement represent and declare that they have read this
Agreement carefully and know the contents thereof and that they signed the
Agreement freely and voluntarily.
EXECUTION
COPY
| AMERIWEST ENERGY CORPORATION | ||
|
Dated:
April
15, 2008
|
By:
|
|
|
Print
Name:
|
Xxxxxxx Xxxxx Xxxxx |
|
|
Title:
|
President | |
|
STATE
OF
|
)
|
|
)
ss.
|
|
|
COUNTY
OF ________
|
)
|
On
______________________before me, __________________________ a Notary Public,
personally appeared ______________________________, personally known to me
(or
proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) (is/are) subscribed to the within instrument, and acknowledged to me
that (he/she/they) executed the same in (his/her/their) authorized
capacit(-y/-ies), and that by (his/her/their) signature(s) on the instrument
the
person(s), or the entity upon behalf of which the person(s) acted, executed
the
instrument.
WITNESS
my hand and official seal.
|
Notary
Public
|
EXECUTION
COPY
|
PI
FINANCIAL SERVICES
CANADACORPORATION
|
||
|
Dated:
April
15, 2008
|
By:
|
|
|
Print
Name:
|
|
|
|
Title:
|
|
|
|
|
||
|
STATE
OF
|
)
|
|
)
ss.
|
|
|
COUNTY
OF ________
|
)
|
On
______________________before me, __________________________ a Notary Public,
personally appeared ______________________________, personally known to me
(or
proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) (is/are) subscribed to the within instrument, and acknowledged to me
that (he/she/they) executed the same in (his/her/their) authorized
capacit(-y/-ies), and that by (his/her/their) signature(s) on the instrument
the
person(s), or the entity upon behalf of which the person(s) acted, executed
the
instrument.
WITNESS
my hand and official seal.
|
Notary
Public
|
EXECUTION
COPY
APPROVED
AS TO FORM AND CONTENT:
| Dated: April 15, 2008 |
XXXXXXXXX
GENSHLEA CHEDIAK
|
|
| law corporation | ||
|
|
By:
|
|
|
XXXXX XXXXXXX Counsel
for PLAINTIFF
|
||
| Dated: April 15, 2008 |
JEFFER,
MANGELS, XXXXXX & MARMARO LLP
|
|
|
|
By:
|
|
|
XXXX
X. XXXXXXXX
Counsel
for PI FINANCIAL
CORPORATION
|
||
