EXHIBIT 10(E)
CONFIDENTIAL
SETTLEMENT AGREEMENT
AND
RELEASE OF CLAIMS
This Confidential Settlement Agreement and Release of Claims,
hereinafter referred to as the "Agreement," are made by and between GREENLAND
CORPORATION and CHECK CENTRAL, INC. (hereinafter collectively "GLCP"), and
SMARTCASH ATM, LTD., and its current affiliates which are owned in part or whole
by Xxxxx Xxxxxxx and/or RBSI, Inc. and/or RBSA, Inc., hereinafter ("SCATM"),
including its employees, shareholders, directors, and any entity acquiring
SCATM, hereinafter collectively referred to as "the Parties."
This agreement is entered into with respect to the following facts:
A. On or about March 30, 1999, the parties entered into a Master
Distributor Agreement pertaining to the manufacture, distribution, sale,
servicing and related aspects of a check-cashing machine. Further, the parties
executed an Addendum to such Master Distributor Agreement on or about December
1, 1999 (hereinafter collectively referred to as the "Distribution Agreement").
B. The parties now desire to rescind, cancel and terminate the
Distribution Agreement (including Addendum thereto), fully and finally settle
and release any asserted, existing, potential or future claims with respect to
each other arising from the dealings or relationship of the Parties prior to
execution of this Agreement, terminate the existing business relationship among
the parties, and otherwise resolve their differences and disputes, including any
potential future litigation between them, thereby being bound for all purposes
from and after the date hereof, solely on the basis of the terms and conditions
hereinafter recited;
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C. By executing this agreement, each of the parties intends to and
hereby does extinguish any and all claims, disputes and obligations heretofore
existing between and among the parties except as they may arise out of this
Agreement.
D. This Agreement is not and shall not be treated as an admission of
liability by any party for any purpose.
ACCORDINGLY, in consideration of the aforementioned facts and the
mutual promises and obligations contained herein, and for other good and
valuable consideration, the parties and each of them agree as follows:
1. The effective date of this Agreement shall be the on March 9th,
2000 the date when all parties hereto have executed this
Agreement.
2. SCATM agrees that it is not and shall not be the exclusive
distributor for GLCP and SCATM hereby waives all rights and
releases GLCP from any and all obligations related to the rights
and obligations associated with the exclusivity provision of the
Distribution Agreement. SCATM agrees that, among other things,
that GLCP may hire distributors, including distributors presently
under contract with SCATM, as direct distributors of GLCP.
3. SCATM shall provide an exclusion letter to GLCP and/or its current
distributors releasing said distributors from the covenant not to
compete clause in their agreements with SCATM as follows: "SCATM
hereby amends the Smart Cash Independent Distributor Agreement to
allow for the Distributor to sell products directly for Greenland
Corporation without violating the non-compete section of the
agreement." In addition, SCATM will provide all reasonable and
appropriate cooperation in assisting the distributors and/or ISO's
in entering into a business relationship with GLCP.
4. SCATM agrees that it will not solicit sales or advertise another
similar check-cashing device for 4 months after effective date of
this Agreement under the SmartCash name or any other name.
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5. SCATM will have the right to sell GLCP products on a
non-exclusive arrangement consistent with the best terms and
pricing offered to other GLCP distributors selling similar
quantities of product and meeting similar standards. Provided
however; that SCATM shall receive the existing Master
Distributor commissions and residuals on all accounts sold by
any of the existing and signed distributors for the next 2
years except that if SCATM continues to sell GLCP products the
commissions and residuals will continue past 2 years for as
long as SCATM continues to purchase or sell a minimum of 12
machines per year. SCATM releases GLCP from any and all
obligation to pay to SCATM, commissions and/or residuals in
connection with transactions between GLCP and ACS. Any first
right of refusal to Wal Mart placements must be under the terms
set out by Wal Mart, CMG and GLCP. In the event SCATM elects to
purchase machines for placement with Wal*Mart/CMG, GLCP and
SCATM both agree to perform all duties in conformance with
standard industry standards and practices, and GLCP shall
guarantee to SCATM the "best terms and pricing" as offered to
others placing similar numbers of machines under similar terms
and conditions. GLCP agrees to provide SCATM with detailed
monthly reports showing all transactions and fees along with
payment of all residuals by the 15th of the month following the
month the transactions occurred. GLCP shall allow SCATM or its
designated agent reasonable access to GLCP's books and records,
at reasonable times during business hours, on a monthly basis
necessary to verify the accuracy of all reports and payments
due under this agreement.
6. As and for consideration of the SCATM obligations listed above,
GLCP agrees to the following:
a. GLCP shall take immediate action to remove the cap on 333,334
restricted shares of Greenland common stock (the "Stock") and
matching warrants held by Xxxxx Xxxxxxx and/or RBSI and
issued on or about March 1999 and GLCP agrees to extend the
exercise period for said warrants for 6 months to September 1,
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2001. SCATM and Xxxxxxx Xxxxxxx represent and warrant to GCLP
that they hold all right title and interest to the Stock, that
there are no encumbrances, liens, pledges or claims against
the Stock and that they have the legal authority and power to
sell the Stock and authorize the action set forth in this
Agreement. GLCP and SCATM acknowledge and agree that RBSI
and/or Xxxxxxx Xxxxxxx acquired on or about March, April and
May of 1999, approximately 400,000 shares of Greenland
Corporation common stock and presently own and/or have
assigned and/or sold to a third party said shares and that
said shares will remain subject to the "cap" provisions in
the Distribution Agreement.
b. GLCP shall grant warrants to SCATM as shown in the attached
Exhibit A to purchase 500,000 restricted shares of Greenland
common stock at $.15 per shares exercisable immediately and
expiring two years from date of this Agreement. Warrants may
be issued in whole or in part in minimum increments of
100,000 shares.
c. GLCP agrees to pay to SCATM the sum of $520,000 the (the
"Payment Amount") evidenced by the promissory note listed on
Exhibit B to be paid as follows:
(i) GLCP will loan to SCATM the sum of $200,000 evidenced
by a promissory note listed on Exhibit C signed by
SCATM and Xxxxxxx Xxxxxxx and secured by the Stock
(the "Loan").
(ii) SCATM shall cooperate in removing the restrictive
ledgend on the Stock and shall deliver the Stock to
Xxx Xxxxxx ("Xxxxxx"). Xxxxxx shall establish an
account with Paradise
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Valley Securities in the name of the person or
entity whose name is on the stock certificate
(RBSI). Xxxxxx will deposit shares of the Stock
into the account to be sold into the market. SCATM
will execute all appropriate documents, including a
power of attorney and/or stock power as shown on
Exhibit D, directing that the first $200,000 of
proceeds from the sale of the Stock are wired to
Greenland Corporation as repayment of the Loan. All
sale proceeds of the stock over and above the first
$200,000 shall be immediately forwarded to SCATM
after receipt by Paradise Valley Securities.
(iii) Xxxxxx shall commence the sale of the Stock
immediately and shall complete the sale of the
Stock within 110 days from the date of this
Agreement. Xxxxxx shall use best efforts to achieve
the best available price and in no event shall the
price per share for any shares sold by Xxxxxx be
less than 10% back of the bid price at the time of
the sales transaction without the express written
approval of SCATM to deviate from the terms of this
Agreement.
(iv) Proceeds from the sale of the Stock shall be
applied as follows (i) the first $200,000 is paid
to Greenland Corporation as repayment of the Loan
(ii) the balance of the proceeds are paid to SCATM
and applied toward the Payment Amount (the "Proceed
Payment") (Example: if the Stock is sold for a
total of $350,000; Greenland would receive its
$200,000 loan paid back and SCATM would receive the
balance of $150,000 for a total Proceed Payment to
SCATM of $350,000 leaving a remaining balance of
$520,000 less $350,000 or $170,000).
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(v) The difference between the Proceed Payment and the
Payment amount shall be paid as follows: (i) GLCP
shall pay SCATM $3,000 for each machine sold or
placed by Greenland excluding machines in Paragraph
5 that SCATM would otherwise receive a $3,000
commission until such time that the difference
between the Payment Amount and the Proceed Payment
is paid in full.
7. Except as may be necessary to provide interpretation, reference or
legal effect to the terms of this Agreement, the parties hereto hereby cancel in
their entirety those certain agreements between the parties hereto entitled
Master Distributor Agreement, dated March 30, 1999 and the Addendum Agreement
between the parties hereto, dated December 1, 1999.
8. GREENLAND CORPORATION and CHECK CENTRAL, INC., agree, on behalf
of themselves, their heirs, executors, administrators, beneficiaries,
directors, officers, shareholders, parent corporations, affiliates,
divisions, subsidiaries, past and present partners, agents, representatives,
employees, insurers, assigns and successors, and each of them, to hereby
fully, absolutely and forever release and discharge SMARTCASH ATM, LTD., and
with the sole exception of Xxxxxxx Xxxx, its descendants, ancestors,
dependents, heirs, executors, administrators, beneficiaries, directors,
officers, shareholders, parent corporations, affiliates, divisions,
subsidiaries, firms, agents, representatives, past and present employees,
insurers, attorneys, assigns, agents, past and present partners,
representatives, successors and each of them, from any and all rights,
claims, demands, causes of action, obligations or controversy, debts,
accounts, lawsuits, judgments, costs, expenses, liens, damages, losses and
liabilities arising out of or concerning the subject matter of their business
relationship with SCATM, including the Distribution Agreement and Addendum
thereto, whether known or unknown, suspected or unsuspected by any party
(hereinafter referred to as the "Released Claims"), and whether or not said
Released Claims have been concealed or
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hidden, which GREENLAND CORPORATION and/or CHECK CENTRAL, INC., now hold or
have at any time heretofore owned or held whether said released claims have
accrued, are yet to accrue, or are liquidated or unliquidated, except as to
those representations, warranties, promises, covenants and conditions
contained in this Agreement.
9. SMARTCASH ATM, LTD., agrees, on behalf of itself, its heirs,
Executors, administrators, beneficiaries, directors, officers, shareholders,
parent corporations, affiliates, divisions, subsidiaries, past and present
partners, agents, representatives, employees, insurers, assigns and
successors, and each of them, including Xxxxxxx Xxxxxxx as an individual and
in his capacity as a former director of Greenland Corporation, to hereby
fully, absolutely and forever release and discharge GREENLAND CORPORATION and
CHECK CENTRAL, INC., and their descendants, ancestors, dependents, heirs,
executors, administrators, beneficiaries, directors, officers, shareholders,
parent corporations, affiliates, divisions, subsidiaries, firms, agents,
representatives, past and present employees, insurers, attorneys, assigns,
agents, past and present partners, representatives, successors and each of
them, from any and all rights, claims, demands, causes of action, obligations
or controversy, debts, accounts, lawsuits, judgments, costs, expenses, liens,
damages, losses and liabilities arising out of or concerning the subject
matter of their business relationship with GLCP, including the Distribution
Agreement and Addendum thereto, whether known or unknown, suspected or
unsuspected by any party (hereinafter referred to as the "Released Claims"),
and whether or not said Released Claims have been concealed or hidden, which
SMARTCASH ATM, LTD., now holds or has at any time heretofore owned or held
whether said released claims have accrued, are yet to accrue, or are
liquidated or unliquidated, except as to those representations, warranties,
promises, covenants and conditions contained in this Agreement.
10. Each of the parties on its own behalf further acknowledges that
it has been advised by or had the opportunity to consult its own independent
legal counsel and understands and acknowledges the significance and
consequences of this release and
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expressly consents that the releases contained herein shall be given full
force and effect according to all their expressed terms or provisions,
including those relating to known and unsuspected claims, demands and causes
of action, if any, as well as those related to any other claims, demands and
causes of action hereinabove specified.
11. The corporate signatories to this Agreement hereby represent and
warrant that they are fully authorized to sign on behalf of their respective
business and on behalf of the individuals named. The signatories further
represent and warrant that, by their signatures to this Agreement, the
organizations that they represent are fully bound by the terms and conditions of
this Agreement and that the individuals named are fully bound by the terms and
conditions of this Agreement.
12. The parties further represent and warrant that they are the
owners of the claims released herein and that none of them has assigned any
interest, right or title to the claims released under this Agreement to any
person or entity not a party hereto.
13. This Agreement was negotiated among the parties hereto at arm's
length, with each party receiving the advise of, or having the opportunity to
consult, independent legal counsel of its choice. It is the intent of each of
the parties that no part of this Agreement be construed against any of the
parties because of the identity of the drafter.
14. This Agreement shall be confidential and shall not be disclosed
to any person or entity not a party or a principal of a party to this
Agreement unless required or privileged by law or to enforce its terms, or
with the express written permission of all parties to this Agreement.
Further, the parties, and each of them, agree that this stipulation of
confidentiality shall encompass the entirety of the relationship between and
among the parties and the parties agree, stipulate and covenant that no party
shall discuss the underlying facts of their relationship or the various
contentions raised by any party during their business relationship with
regard to any other party, and specifically agree not to discuss or comment
upon settlement terms, conditions of settlement or opinions with regard to
the others' compliance with law. However, a breach of this paragraph by
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one party shall not excuse any other party's performance of this Agreement.
Any party who breaches this paragraph shall be liable to any other party for
all damages, including but not limited to attorney fees, costs of suit and/or
investigation, proximally caused by such breach.
15. The provisions of this Agreement are severable and, if any part of
it is found to be unenforceable, the other provisions shall remain fully valid
and enforceable. This Agreement shall survive the termination of any
arrangements contained herein.
16. To the extent legal action is required to enforce the terms of
this Agreement, the prevailing party shall be entitled to its costs and
attorneys' fees. It is the intention of the parties that the laws of the
State of California shall govern the validity of this Agreement, the
construction of its terms, and the interpretation of the rights and duties of
the parties. In the event any suit is filed, the venue shall be in San Diego,
California.
17. This Agreement sets forth the entire agreement between the
parties hereto, and fully supersedes any and all prior agreements or
understandings between the parties herein pertaining to the subject matter
hereof.
18. This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, and all of which together shall
constitute one and the same instrument.
19. The parties hereto shall sign or cause to be signed all
documents and shall perform or cause to be performed such further acts as may
be necessary to consummate the agreement contemplated hereunder.
20. Each Party shall indemnify, save and keep harmless, the Other
Party, including its officers, directors, affiliates, associates, attorneys,
subsidiaries and all other persons and entities associated in any manner with
the Parties through the date hereof, from and against any claims or suits
commenced or threatened against Either Party at any
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time prior to and/or after execution and arising from the sale and/or
distribution of the product(s) or services beyond Either Party's control or
not caused by the intentional or negligent conduct of Either Party. In
addition SCATM shall indemnify, save and keep harmless, GLCP, its officers,
directors, affiliates, associates, attorneys, subsidiaries and all other
persons and entities associates in any manner with GLCP, from and against
claims or suits commenced or threatened against GLCP and/or and/or its
officers, directors, affiliates, associates etc., in connection with the use,
either by GLCP, SCATM or any other person or party, of the name "SmartCash
ATM" arising from use of the name "SmartCash ATM" prior to the execution of
this Agreement. GLCP agrees to use its best efforts to discontinue use of the
name "SmartCash" or "SmartCash ATM" in any version or capacity and in no
event will it use the name(s) after 120 days after execution of this
agreement.
21. The parties agree that prior to any release of information
concerning any aspect of this agreement, the past, present or future
relationship of the parties, that each party hereto shall consent in writing,
which consent will not be unreasonably withheld, to the subject, content, and
intended recipient of the information. In the event there is a violation of
this paragraph by any party, and in addition to any other remedy, including
damages to which the non-breaching party may be entitled pursuant to this
agreement.
22. SCATM agree to continue for at least one year ATM processing for
all GLCP machines under previously contracted terms and conditions and
Greenland agrees not to terminate said services provided that the services
are consistent with industry standards and are compatible with the Greenland
machines.
23. COUNTERPARTS: A facsimile, telecopy or other reproduction of
this instrument may be executed by one or more parties hereto and such
executed copy may be delivered by facsimile or similar instantaneous
electronic transmission device pursuant to which the signature of or on
behalf of such party can be seen, and such execution and delivery shall be
considered valid, binding and effective for all purposes. At the request of
any party hereto, all parties agree to execute an original of this instrument
as well as any facsimile, telecopy or other reproduction hereof.
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24. Proceeds from sale of Machine in Michigan (Barki dba Marathon).
Notwithstanding anything to the contrary contained herein SCATM acknowledges
and agrees that GLCP is owed the full purchase price for the sale of the
machine to Barki dba Marathon and will be paid in accordance with terms of
purchase order and will not be offset by any other claims and/or expenses.
THE UNDERSIGNED HEREBY CERTIFY THAT THEY HAVE READ ALL OF THIS RELEASE AND
FULLY UNDERSTAND ALL OF THE SAME.
IN WITNESS WHEREOF, THE PARTIES HERETO HEREBY EXECUTE THIS
AGREEMENT.
For GREENLAND CORPORATION and CHECK CENTRAL, INC.:
_________________________________________ Dated: ______________
Xxxxxx Xxxxxx, as Secretary
_________________________________________ Dated:_______________
Xxx Xxxxxxxx, as CEO
For SMARTCASH ATM, LTD.:
_________________________________________ Dated: ______________
Xxxxxxx Xxxxxxx, CEO/President
_________________________________________ Dated: ______________
Xxxxxxx Xxxxxxx, for SCATM, RBSA
and all affiliated companies.
_________________________________________ Dated ________________
Xxxxxxx Xxxxxxx, an individual and as
former director of Greenland Corporation
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