Exhibit 10.(xlix)
SETTLEMENT AND RELEASE AGREEMENT
This Settlement Agreement is made as of May 25, 1999 ("Effective Date") by and
between Nevada Manhattan Group, Inc., a Nevada Corporation doing business in
California (the "Company") and Xxxxxxx Xxxxxx, an individual residing in
California ("Xxxxxx"). The Company has requested the resignation of Xxxxxx.
Xxxxxx will provide his immediate resignation, both as an Officer and Director,
as of the Effective Date, under the following terms and conditions:
1. The Company will pay in full, $26,500.00 currently owed, outstanding and in
arrears to Xxxxxx pursuant to the terms and conditions of Xxxxxx'x Employment
Agreement originally dated January 1, 1995, as amended. Payments will be made in
three installments, on or before June 10, 1999 ($8,834), on or before June 30,
1999 ($8,833) and on or before July 31, 1999 ($8,833);
2. The Company will pay in fill, on or before June 28, 1999, current and
outstanding amounts to Xxxxxx totaling (a) $200.00 for an outstanding aged
expense report, and (b) $1650.00 for finds advanced by Xxxxxx to pay health
insurance for the period beginning April 1999;
3. The Company will issue, on or before the Effective Date, a new Promissory
Note to Xxxxxx in the amount of $141,604.00. Said Note will be due and payable
on or before six (6) months after the Effective Date with interest accruing at
8%. Should the Company receive any payment(s) from the "Xxxxxxx Xxxxxx
Settlement" related to the Company's Manhattan, Nevada Mining Property, related
legal fees will be paid first, and then 50% of any payments received by the
Company will be first applied to the reduction of the Xxxxxx Note until paid in
fill (current related legal fees are approximately $10,000). Payments to Xxxxxx
under this Note will be made to Xxxxxx or his designee at Xxxxxx'x election.
Should the Company elect, it may prepay the Note in full within thirty (30) days
of the Effective Date, without interest, by the delivery of negotiable finds in
the amount of $110,000.00. Xxxxxx will, without any compensation and without any
liability, follow up on the Xxxxxx settlement on behalf of the Company. Xxxxxx
will keep the CFO of the Company informed of the status of the settlement and
will not make any commitments, representations or warranties on behalf of the
Company;
4. In consideration of prior finds provided to the Company by Xxxxxx, the
Company will issue, on or before the Effective Date, 700,000 shares of the
restricted Common Stock of the Company to Xxxxxx or his designee(s). Said shares
will be applied toward the reduction in the price paid by Xxxxxx, $1.00 per
share in October 1998, to approximately $0.45. Xxxxxx acknowledges that the
Company had obligations to issue common stock in excess of the representations
made by he and Xxxxxxxxxxx Xxxxxxxx in the subscription agreement between TiNVI,
Inc., dated on or around August 28, 1998. Xxxxxx further acknowledges, to the
best of his knowledge, that there are no further obligations to issue common
stock that existed at August 28, 1998 other than those due Xxx Xxxx
(approximately 2.82 million), Brazil employees (approximately 600,000) and
Xxxxxx Xxxx/related parties (approximately 800,000) which would cause to exceed
the 5,380,000 amount described in paragraph (g), page 6 of said subscription
agreement. Xxxxxx does not have knowledge, and assumes no liability for
transactions which Xxxxxxxxxxx Xxxxxxxx may have entered into;
5. The Company will issue, on or before the Effective Date, a letter, with
copies addressed to both, Xxxxxx, and U. S. Stock Transfer, declaring that
Xxxxxx is no longer an officer, director or afliate of the Company. Language
will also be included, declaring that Xxxxxx had provided funds to the Company
between June 1997 and August 1998, for which the 585,000 shares issued
previously, and the 700,000 shares to be issued, were delivered to Xxxxxx.
Further, language will be included re-confirming the Board Of Directors'
resolution that any tax liability incurred by Xxxxxx or the Company, as a result
of funds provided by Xxxxxx to the Company through the sale of stock or
otherwise, will be the sole responsibility of the Company;
6. Should the Company agree and comply fully with all the payments, terms and
conditions contained herein, Xxxxxx will waive all rights pursuant to his
aforementioned Employment Contract and, on his own behalf and on behalf of his
heirs, legal representatives successors and assigns, hereby fully and forever
releases the Company and its officers, directors, employees, administrators,
affiliates, divisions, subsidiaries, predecessors, successors and assigns from,
and agrees not to xxx concerning, any claim, demand, right, duty, obligation,
liability, cause or cause of action relating to any matters or things of any
kind, nature or description whatsoever, whether presently known or unknown,
suspected or unsuspected, that Xxxxxx may possess arising from any omissions,
acts or facts that have occurred up until and including today. Further, the
forgoing release shall not apply to, and Xxxxxx reserves the right to assert,
any act or omission by the Company, which constitutes, or is alleged to
constitute gross negligence, willful misconduct, or bad faith. Xxxxxx also
hereby agrees to provide ongoing consulting services to the Company, at the rate
of $750.00 per day under mutually acceptable terms. The forgoing release shall
not apply to, and Xxxxxx reserves the right to assert any act or omission by the
Company which constitutes gross negligence, willful misconduct, or bad faith;
7. The Company, on its own behalf and on behalf of its officers, directors,
employees, administrators, affiliates, divisions, subsidiaries, predecessors,
successors and assigns (as used in this paragraph, each, the "Company"), hereby
fully and forever releases Xxxxxx and his heirs, legal representatives,
successors and assigns from, and agrees not to xxx concerning, any claim,
demand, right, duty, obligation, liability, cause or cause of action relating to
any matters or things of any kind, nature or description whatsoever, whether
presently known or unknown, suspected or unsuspected, that the Company may
possess arising from any omissions, acts or facts that have occurred up until
and including today. The forgoing release shall not apply to, and the Company
reserves the right to assert any act or omission by Xxxxxx which constitutes
gross negligence, willful misconduct, or bad faith;
8. The Company shall indemnify and hold Xxxxxx harmless, to the maximum extent
permitted by applicable law, from and against any and all loss, cost, damage or
expense, including but not limited to actual attorney's fees and costs, if any,
arising out of, pertaining or related to, or in connection with, any threatened,
pending or completed claim, demand, assertion, allegation, action or proceeding,
whether civil, criminal, administrative or investigative, arising out of, or
pertaining or related to, or in connection with the fact that Xxxxxx is or was
an officer, director, employee, or agent of the Company or any subsidiary of the
Company, or any action, omission or inaction on Xxxxxx'x part while an officer,
director, employee, or agent of the Company, or the fact that Xxxxxx was serving
at the request of the company as an officer, director, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise. The
forgoing indemnification shall not apply to any act or omission by Xxxxxx which
constitutes gross negligence, willful misconduct, or was the result of bad
faith;
9. This Settlement Agreement shall be governed by and interpreted according to
the law of the State of California, without reference to its conflict of laws
principles. In the event of a dispute relating to this Settlement Agreement, it
shall be interpreted in accordance with its fair meaning and shall not be
interpreted for or against any party on the ground that such party drafted or
caused to be drafted this Settlement Agreement or any part hereof. Any dispute
relating to this Settlement Agreement shall be submitted to the Los Angeles
office of the American Arbitration Association and determined according to the
rules of the American Arbitration Association for commercial disputes. In any
dispute arising out of this Settlement Agreement, the prevailing party shall be
entitled to recover its attorneys' fees and costs, including the arbitrator's
fees.
If the above terms and conditions are acceptable, please execute where provided
below.
Agreed and accepted:
/s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx, Chairman and CEO
Nevada Manhattan Group, Inc.
/s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
