FIRST AMENDMENT
TO
SETTLEMENT AGREEMENT
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THIS FIRST AMENDMENT TO SETTLEMENT AGREEMENT (the "First Amendment") is
made as of the _____day of July, 2002, by and between Xxxxxxx X. Xxxxx ("Xxxxx')
and Twistee Treat Corporation, a Delaware corporation ("TTC").
RECITALS
WHEREAS, the parties hereto entered into a Settlement Agreement on May 16,
2002 (the "Settlement Agreement"); and
WHEREAS, the parties have agreed to modify and amend the Settlement
Agreement as set forth below.
AGREEMENT
In consideration of the mutual promises, covenants and conditions contained
herein, which the parties acknowledge to be sufficient, the parties agree as
follows:
1) Of the $25,000.00 to be paid to Xxxxx by TTC per the Settlement Agreement,
the sum of $ 19,061.95 has been paid to date. Upon the execution of this First
Amendment by the parties, TTC shall cause to be wired into the trust account of
Xxxxxxx Xxxxxxxx Xxxxxx, LLP, the sum of $5,938.05 (the "Remaining Settlement
Payment"), which sum shall be disbursed as set forth in Paragraph 3___, below.
6) 2) Upon the execution of this First Amendment, TTC shall deliver to Xxxxx'
counsel, a resolution by TTC's board of directors, in form satisfactory to Xxxxx
counsel, ratifying the Settlement Agreement and approving the First Amendment
(the "authorizing Resolution"), which resolution shall be held by Xxxxx counsel
until the Remaining Settlement Payment is disbursed to Xxxxx.
3) Within 2 business days of the execution of this First Amendment, Xxxxx shall
deliver to a representative designated by TTC the following and immediately
thereupon the Remaining Settlement Payment and copy of Authorizing Resolution
shall be delivered to Xxxxx and, subject to the provisions of Xxxxxxxxx 0,
xxxxx, all of his duties and obligations shall be fulfilled and released:
A. all bank statements, canceled checks, check books and registers, ledgers and
other books and records of TTC which are in the custody, control or possession
of Xxxxx or his agents or representatives.
B. all tangible assets of TTC in the custody, control or possession of Xxxxx or
his agents or representatives, including molds, plugs and forms used in the
fabrication of TTC's cone building fiberglass components, filing cabinets,
office equipment, models of TTC's cone building, cone building fiberglass
components, miscellaneous building hardware and parts, and any warehouse
records, receipts or other documents relating to the storage of the tangible
assets;
C. all documents of any nature that relate in any way to any patents,
trademarks, servicemarks and copyrights (the "Intangible Assets") owned, held or
claimed by TTC, including any documents that relate in any way to claims the
Intangible Assets by Xxxxxx Xxxxxxx, Xxxxx Xxxxxxx, or any companies owned or
controlled by them.
D. all stock certificates for preferred or common stock of TTC issued to Xxxxx.
E. subject to paragraph 7, a stock power duly executed in blank by Xxxxx
authorizing the transfer of his 1,250,000 shares of common stock of TTC (the
"Shares").
F subject to paragraph 7, an assignment duly executed by Xxxxx assigning his
options (the "Options") to purchase 2.5 million shares of TTC's common stock to
parties to be designated by TTC.
4) TTC represents, warrants and agrees that any person who acquires (the
"Acquiring Person") any or all of the Shares or Options (i) shall have such
knowledge and experience in financial and business matters to enable the
Acquiring Person to understand the merits and risks of an investment in the
Shares or Options, as the case may be, (ii) shall have been furnished with
and/or given access, prior to acquiring or agreeing to acquire the Shares and/or
Options, to the same kind of information concerning TTC and the Shares and/or
Options, as the case may be, as would have been provided in a registration
statement on the appropriate form if the Shares and/or Options had been
registered under the Securities Act of 1933, as amended (the "Act"), as well as
any other information that would be material to a reasonable investor in making
a decision to acquire the Shares and/or Options, as the case may be, (iii) shall
have been given the opportunity, prior to acquiring or agreeing to acquire the
Shares and/or Options, to ask questions and receive answers concerning the
foregoing matters and to obtain any additional information that TTC possessed or
could obtain without unreasonable effort or expense, (iv) the Acquiring Person
shall acquire the Shares and/or Options solely for investment for the
Acquisition Person's own account and not as a nominee or agent or otherwise on
behalf of any other person, (v) the Acquiring Person shall acquire the Shares
and/or Options not with a view to or with any present intention to reoffer,
resell, fractionalize, assign, grant any participating in, or otherwise
distribute, or act as an underwriter (as defined in Section 2(11) of the Act)
with respect to, the Shares or Options, (vi) shall have a restrictive transfer
legend placed on the certificates representing the Shares and on the agreement
with respect to the Options prohibiting the sale, transfer or other disposition
of the Shares and/or the Options, as the case may be, without an effective
registration statement under the Act and any applicable state securities laws or
an opinion of counsel reasonably satisfactory to TTC that such sale, transfer or
disposition may be made in reliance upon an exemption from registration under
the Act and any applicable state securities laws, and (vii) the Acquiring Person
shall be adequately informed of such limitations on sale, transfer or other
disposition prior to acquiring, or agreeing to acquire, the Shares and/or the
Options.
5) A report shall be filed under the Securities Exchange Act of 1934, as
amended, on Form 8-K or Form 10-Q as soon as reasonably practicable disclosing
that Xxxxx has resigned from all positions with TTC as of May 16, 2002 and that
Xxxxxx Xxxxx has replaced Xxxxx in those positions and such report shall not
make any negative statements concerning, or otherwise disparage, Xxxxx or his
service to TTC in any capacity.
6) Xxxxx hereby represents, warrants and acknowledges that:
A. Within two business days of the execution of this First Amendment, he will
have delivered to a representative designated by TTC all of the items referenced
in Paragraphs 3A, 3b and 3C, above.
B. He has made a full, fair and complete disclosure to TTC of the existence,
location and whereabouts of all of the tangible assets of TTC.
C. Upon the delivery of the items referenced in Paragraph 3, above, Xxxxx will
no longer have in his custody, control or possession any assets of TTC.
D. Upon the delivery of the items referenced in Xxxxxxxxxx 0X, 0X xxx 0X, xxxxx,
Xxxxx will no longer have any right, title, interest, or claim to any stock,
warrants, or options in TTC.
7) Except as modified by this First Amendment, the parties re-adopt and re-
affirm the terms and provisions of the Settlement Agreement.
8) This First Amendment may be executed in two or more counterparts, each of
which, when taken together, shall constitute one original document. The
execution of this First Amendment may be evidenced by the transmission of
telecopied or facsimile signatures which will have full binding and legal
effect.
IN WITNESS WHEREOF, the parties hereto shall be deemed to have executed
this Agreement on the date and year first written above.
XXXXX: TTC:
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxxx Xxxxx
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Xxxxxxx X. Xxxxx Twistee Treat Corporation
By:
Xxxxxx Xxxxx, President