EXHIBIT 1
STATE OF SOUTH CAROLINA IN THE COURT OF COMMON PLEAS
FOURTEENTH JUDICIAL CIRCUIT
COUNTY OF BEAUFORT CASE NUMBER 95-CP-7-1893
XXXXXX X. XXXXXXXX, XXXXX )
(XXXX) XXXXXXX, and GREY )
ASSOCIATES, INC., a South )
Carolina Corporation, )
) SETTLEMENT AGREEMENT
Plaintiffs, ) AND RELEASE
)
v. )
)
SEA PINES COMPANY, INC., )
)
Defendant. )
------------------------------------
This Settlement Agreement and Release ("Agreement") is made as a mutual
and reciprocal compromise and release between the parties hereto for the
complete and final settlement of any and all claims, known or unknown, in any
manner related to the matters raised in the above-captioned action (the
"Action"), including the judgment entered therein on May 1, 2003 and all pending
post-trial motions. This Agreement is intended to effect the mutual and
reciprocal extinguishment of all rights and obligations of the parties hereto.
In consideration of the mutual and reciprocal relinquishment of their
respective legal rights with reference to the Action and the execution of this
Agreement, the parties hereby agree to settle the Action upon the following
terms:
1. The defendant will pay to Xxxxxxx X. Xxxxx of Xxxxx, Xxxxx & Xxxxxx,
LLC as attorneys for the plaintiffs, the total sum of $5.9 Million Dollars. This
payment represents the following:
(a) $4,936,000.00 for the plaintiffs' partnership interest in the
project that they were to have received for services that were rendered
or were to be rendered under the contract at issue in the Action;
(b) $208,864.00 for the reimbursement of expenses incurred by the
plaintiffs in their performance of the contract at issue in the Action;
and
(c) $755,136.00 for placement fees and development fees under the
contract at issue in the Action.
2. At the request and direction of the plaintiffs, the $5.9 Million
Dollars settlement payment shall be allocated as follows: $1,000.00 Dollars to
Xxxxx (Xxxx) Pomranz; $1,000.00 Dollars to Grey Point Associates, Inc.; and the
remaining balance of $5,898,000.00 Dollars to Xxxxxx X. XxXxxxxx. The plaintiffs
and defendants agree that the contract which was the subject of the Action did
not create an employment relationship between them and, therefore, the payment
under this agreement is not subject to any state or federal withholding
requirements. In the event a state or federal authority should rule otherwise,
the plaintiffs jointly and severally agree to indemnify and hold harmless the
defendant for any and all consequences of the failure to withhold from the
payment hereunder. This indemnification and hold harmless agreement extends to
and is for the benefit of the defendant and its officers, directors, employees,
agents, heirs, successors, assigns, legal representatives, affiliates, or
insurers.
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3. The plaintiffs and their heirs, successors, assigns or legal
representatives, hereby expressly release the defendant and its heirs,
successors, assigns, legal representatives, affiliates, insurers, officers or
agents, from all debts, demands, actions, causes of action, matters, suits, sums
of money, accounts, reckonings, bonds, specialties, covenants, contracts,
agreements, promises, doings, omissions, variances, damages, executions,
contributions, indemnifications, liabilities, charges, and costs, including all
costs and expenses which may be assessable against it in the Action, whatsoever,
whether in statutory or common law, in law or in equity, known or unknown, which
were raised or could have been raised in the Action, or which are in any manner
related to the matters raised in the Action.
4. Each of the parties hereto understands and agrees that the receipt
of the above-noted consideration ends forever the Action and any actions which
are known or may later be discovered which arise out of or are in any manner
related to the facts and circumstances involved in the above Action.
5. Each of the parties hereto agrees and understands that this full and
final release shall cover and shall include any and all future damages not now
known to any of the parties hereto, but which may later develop or be
discovered.
6. Each of the parties hereto understands and agrees that the facts in
respect of which this Agreement is made may hereafter prove to be other than or
different from the facts in that connection now known by either of them or
believed by either of them to be true. Each of the parties hereto expressly
understands, accepts, and assumes the risk of the facts proving to be so
different, and each of the parties hereto agrees that all the terms of this
Agreement shall be in all respects effective and not subject to termination or
rescission by any such difference in facts.
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7. The undersigned parties to this Agreement warrant that no promise or
inducement has been offered or made except as herein set forth, and that this
Agreement is executed without reliance on any statement or representation by any
party to this Agreement or by any agents of the parties to this Agreement
concerning the nature and extent of the injuries and damages, or either of them,
or the legal liability therefore. The undersigned parties are of legal age, are
legally competent, and are legally qualified to execute this Agreement and
accept the full responsibility therefor.
8. The undersigned parties agree and understand that this Agreement
contains the entire agreement between the parties hereto, and the terms of this
Agreement are contractual and not a mere recital.
9. The undersigned parties have knowingly, freely, voluntarily, and
with the advice and explanation of counsel executed this Agreement.
10. This Agreement is executed by the parties hereto for the sole
purpose of compromising and settling any and all claims, known or unknown,
asserted or unasserted, in the above-referenced Action, including any and all
claims in any manner whatsoever related to the matters raised in the Action.
11. This Agreement shall be binding on and inure to the benefit of the
parties hereto and their respective heirs, successors, assigns, or legal
representatives.
12. In the event any litigation is brought by the parties to this
Agreement concerning this Agreement in whole or in part whether by direct action
on the Agreement or by dispute of the Agreement, in whole or in part, in any
action involving those parties, the parties hereto agree that the prevailing
party in any such action shall receive from the non-prevailing party all
attorney fees, costs and expenses.
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IN WITNESS WHEREOF, the parties have executed this Settlement Agreement
and Release.
WITNESSES:
__________________________ s/ Xxxxxx X. XxXxxxxx
---------------------
Xxxxxx X. XxXxxxxx (Plaintiff)
__________________________
SWORN TO before me this ____
day of ______________, 2003
_______________________________(L.S.)
Notary Public for _________________
My Commission Expires: ____________
WITNESSES:
Grey Point Associates, Inc. (Plaintiff)
__________________________
By: s/ Xxxxxx X. XxXxxxxx
---------------------
__________________________ Xxxxxx X. XxXxxxxx
Its: President
SWORN TO before me this _____
day of _________________, 2003.
____________________________(L.S.)
Notary Public for ________________
My Commission Expires: __________
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WITNESSES:
__________________________ s/ Xxxxx X. (Xxxx) Pomranz
--------------------------
Xxxxx (Xxxx) Xxxxxxx (Plaintiff)
__________________________
SWORN TO before me this ____
day of ______________, 2003
_______________________________(L.S.)
Notary Public for _________________
My Commission Expires: ____________
WITNESSES:
Sea Pines Company, Inc. (Defendant)
__________________________
By: s/ Xxxxxx X. Xxxxxxxx
__________________________ ---------------------
Its: Chief Financial Officer
SWORN TO before me this _____
day of _________________, 2003.
____________________________(L.S.)
Notary Public for ________________
My Commission Expires: __________
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