EXHIBIT 10.29
SETTLEMENT AGREEMENT AND
MUTUAL RELEASE OF ALL CLAIMS
This settlement Agreement and Mutual Release of All Claims
("Agreement"), dated , 1996, is executed by and between Westmark Group Holdings,
Inc. ("WGHI"), a Colorado corporation, and Hakman & Company, Inc. ("Hakman"), a
California corporation, and is made with reference to the following:
RECITALS
WHEREAS, WGHI and Hakman previously entered into a contractual
agreement wherein Hakman represented WGHI with respect to the prospective
acquisition of Westmark Mortgage Corporation by WGHI and;
WHEREAS, WGHI is obligated to Hakman in the sum of $18,652.84 and is
unable to pay in cash the amount owed to Hakman and has requested that Hakman
accept the form of payment as set forth herein and;
WHEREAS, the parties hereby wish to settle and to resolve any and all
disputes, debts, damages, accounts, claims of demands whatsoever between them.
NOW, THEREFOR, in consideration of the terms set forth below and the
other covenants and conditions contained herein, WGHI and Hakman mutually agree
as follows:
1. WGHI agrees to pay to Hakman the sum of $1,000 on March 15, 1996,
$1,000 on April 15, 1996 and $1,000 May 15, 1996.
2. On or before March 31, 1996, WGHI 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 Hakman 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. The issuance of such WGHI
shares shall also be qualified under the California Corporation Securities Laws
of 1968 or exempt from such qualification.
3. Immediately upon the effectiveness and qualification of the
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Registration Statement, WGHI will issue to Hakman 7,000 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 Hakman shares in an orderly manner through the brokerage firm
designated by WGHI, or such other brokerage firm as agree to by the parties. The
sale of the WGHI shares by WGHI shall conclude on or before September 15, 1996,
provided that sufficient WGHI shares are registered and qualified under the
terms of Section 1 hereof and issued by WGHI to Hakman in sufficient time to
allow Hakman to net $3,913.21 per month commencing June 15, 1996 through the
sale of such shares as contemplated hereunder. WGHI agrees that the number of
WGHI shares registered and issued to Hakman shall equal the number necessary to
net $3,913.21 per month commencing June 15, 1996 upon the sale thereof (after
payment of all brokerage fees). WGHI agrees to register, qualify and issue to
Hakman additional WGHI shares to the extent the number of WGHI shares originally
registered, qualified and issued are insufficient to net $3,913.21 per month.
Once Hakman has received a total of $18,652.84 from WGHI or from the sale of
shares as set forth above, any remaining WGHI shares will be returned to WGHI
and shall be retired.
4. If at any time WGHI fails to perform its obligations as set forth
hereinabove, WGHI shall be in default of this Agreement. In the event of
default, Hakman shall be entitled to file the Stipulation for Entry of Judgment
which is attached hereto marked Exhibit "A" and by this reference made a part
hereof. Said stipulation shall be held by Hakman, unfiled, pending the
compliance by WGHI with the terms and conditions of this Settlement Agreement.
Upon filing of the Stipulation for Entry of Judgment, Hakman shall be entitled
of all remedies available at law or in equity.
5. Hakman 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 Hakman, 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 Hakman set forth herein, including without limitation, the
obligations set forth in Sections 1 or 2 hereof.
6. WGHI hereby releases and forever discharges Hakman, and all of its
past, present and future partners, attorneys, officers, directors,
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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 Hakman's performance of services on behalf of
WGHI, or failure thereof, and any and all other claims or causes of action WGHI
may have against Hakman, whether real or imaginary or known or unknown at this
time.
7. 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.
8. 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 Hakman 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 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."
9. 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.
10. Hakman agrees and acknowledges that it will accept delivery of the
WGHI shares and receipt of the payments specified in Sections 1 and 2 of this
Agreement as a full and complete compromise of matters involving disputed issues
as to Hakman. Each of Hakman and WGHI agrees and
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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.
11. 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.
12. 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.
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.
14. This Agreement has been negotiated, and is entered into, in the
State of California, County of San Francisco. The validity, interpretation,
construction and enforcement of this Agreement shall be construed, interpreted
and governed pursuant to California 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
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(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
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. Hakman & Company
355 N.E. Fifth Avenue, Suite 4 c/o Leonard Steinberg, Esq.
Delray Beach, Florida 33483 HOSIE, WES, MCLAUGHLIN
One Sansome Street, 14th Floor
and San Francisco, California 94104
Harry C. Coolidge, Esq.
1260 41st Avenue, Suite N
Capitola, California 95010
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 to this Agreement to that address and designated person.
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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.
IN WITNESS WHEREOF, the parties have duly executed this Agreement on
the dates set forth below.
DATED: DATED:
HAKMAN & COMPANY, INC. WESTMARK GROUP HOLDINGS, INC.
By: By:
Its: Its:
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