EXHIBIT 10.33
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 James Cassidy
("Cassidy"), and is made with reference to the following:
RECITALS
WHEREAS, WGHI retained Cassidy beginning in 1994 and continuing into
1995, and agreed to pay Cassidy for services provided; and
WHEREAS, Cassidy performed services on behalf of WGHI and billed it for
such services on an hourly basis;
WHEREAS, WGHI has informed Cassidy that it is unable to pay in cash the
amounts owed to Cassidy for such services and has requested that Cassidy accept
the form of payment as set forth herein;
WHEREAS, the parties hereby wish to settle and to resolve any and all
disputes, debts, damages, accounts, claims and demands whatsoever between them
arising from Cassidy's representation of WGHI and Cassidy's claims for payments
owed by WGHI to Cassidy for legal representation of WGHI.
NOW, THEREFOR, in consideration of the terms set forth below in
Sections 1 and 2 of this Agreement, and the other covenants and conditions
contained herein, WGHI and Cassidy mutually agree as follows:
1. 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 Cassidy 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.
2. Immediately upon the effectiveness and qualification of the
Registration Statement, WGHI will issue to Cassidy 35,000 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 Cassidy shares in an orderly manner through the brokerage firm
designated by WGHI, or such other brokerage firm as agreed to by the parties.
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Westmark shall cause the registration issuance and sale of sufficient shares to
enable Cassidy to receive no less than $5,859 per month commencing June 15, 1996
and continuing on the 15th day of each thereafter until the entire balance shall
have been paid in full. WGHI agrees to register, qualify and issue to Cassidy
additional WGHI shares to the extent the number of WGHI shares originally
registered, qualified and issued are insufficient to net $5,859 per month
commencing June 15, 1996. Once Cassidy has netted $70,300, any remaining WGHI
shares will be returned to WGHI and shall be retired.
3. If at any time WGHI fails to perform its obligations as set forth
hereinabove, WGHI shall be in default of this Agreement and Cassidy shall be
entitled to proceed with any and all remedies provided at law or in equity.
4. Cassidy 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 Cassidy, 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 Cassidy set forth herein, including without limitation,
the obligations set forth in Sections 1 or 2 hereof.
5. WGHI hereby releases and forever discharges Cassidy, and all of its
past, present and future partners, 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
or may arise out of Cassidy performance of services on behalf of WGHI, or
failure thereof, and any and all other claims or causes of action WGHI may have
against Cassidy, whether real or imaginary or known or unknown at this time.
6. 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.
7. 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 Cassidy 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
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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."
8. 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.
9. Cassidy agrees and acknowledges that it will accept the payments and
the registration, issuance and sale of the WGHI shares specified hereinabove as
a full and complete compromise of matters involving disputed issues as to
Cassidy. Each of Cassidy and WGHI agrees and 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.
10. 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.
11. 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.
12. WGHI hereby represents and warrants that as of the date of its
execution of this Agreement it has sufficient shares of common stock duly
authorized and available in order to comply with the terms of Sections 1 and 2
hereof. WGHI agrees that it will reserve and keep available for issuance
sufficient shares of its common stock so that it can comply with its obligations
set forth in Sections 1 and 2 hereof.
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
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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 Florida, County of Palm Beach. The validity, interpretation,
construction and enforcement of this Agreement shall be construed, interpreted
and governed pursuant to Florida 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
(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. Cassidy & Associates
355 N.E. Fifth Ave., Suite 4 1504 "R" Street N.W.
Delray Beach, Florida 33483 Washington, D.C. 20009
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and
Harry C. Coolidge, Esq.
1260 41st Ave., Suite N
Capitola, California 59010
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 in this Agreement to that address and designated
person.
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.
20. The exercise date for any stock options previously granted to
Cassidy shall be extended up to and including the date of final payment of the
obligation hereinabove set forth.
IN WITNESS WHEREOF, the parties have duly executed this Agreement on
the dates set forth below.
DATED: DATED:
CASSIDY & ASSOCIATES WESTMARK GROUP HOLDINGS, INC.
By: By:
Its: Its:
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