Exhibit 10.14
SETTLEMENT AGREEMENT AND MUTUAL RELEASES
This Settlement Agreement and Mutual Releases ("Agreement") is made this
30th day of March, 1999 by and between Xxxxxxxxx Xxxxx ("Kjaer"), Kosmas Group
International, Inc. ("KGI") and Equivest Finance, Inc. ("EFI").
WHEREAS, Kjaer and Castle Acquisition, Inc. ("CAI"), a wholly owned
subsidiary of Castle Holdings, L.L.C. ("Holdings") are party to that certain
agreement, dated January 8, 1998 (the "Kjaer Agreement"), pursuant to which CAI
acquired certain property, obligations, rights and interests (the "Interests")
from Kjaer on the terms described therein.
WHEREAS, Kjaer, Holdings and Kosmas Caribbean Holdings Corporation
("KCHC"), a subsidiary of KGI subsequently entered into a further agreement,
dated July 30, 1998 (the "Tri-Partite Agreement"), pursuant to which KCHC agreed
to acquire CAI and other stock and assets from Holdings and, to obtain Kjaer's
consent, agreed to purchase from Kjaer the Interests on the terms described
therein.
WHEREAS, Holdings has never made any payments to Kjaer under the Kjaer
Agreement.
WHEREAS, Holdings has brought an action styled Castle Holdings, L.L.C. x. Xxxxxx
Group International, Inc. et al., Civ. No. 1999-034 (D.V.I.) (the "Lawsuit"), in which it
asserts among other things that it is entitled to rescind the KGI Stock Purchase
Agreement.
WHEREAS, KGI and EFI denied the allegations contained in Holdings'
complaint.
WHEREAS, KGI and KCHC have never made any payments to Kjaer under the
Tri-Partite Agreement.
WHEREAS, Kjaer has asserted his right to rescind the Tri-Partite Agreement
and the Kjaer Agreement and to reassert his rights under and with respect to the
Interests.
WHEREAS, the parties desire to settle their claims without resort to any
further litigation and without any further expense or delay, but wish that the
terms of this Agreement shall take effect only upon the closing of EFI's
acquisition of the stock of Bluebeards Castle, Inc. ("BCI") and CAI (the
"Effective Date").
NOW, THEREFORE, in consideration of the above recitals and the covenants
contained below, the adequacy and receipt of which are hereby fully
acknowledged, the parties agree as follows:
1. Consideration. EFI shall deliver to Kjaer the following consideration at the
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following times:
(a) $2.0 million in immediately available funds of which (i) $1.0
million shall be paid no later than May 1, 1999, and (ii) $1.0 million shall be
paid no later than September 1, 1999; provided, however, that the payment date
shall be seven days following the closing date of the EFI Public Offering
(defined below) if earlier than the dates specified in preceding clauses (i) and
(ii) above. The unpaid amount of such obligation shall bear interest from the
Effective Date to the date of payment at 8.0% per annum. On the Effective Date,
EFI will execute a promissory note consistent with the foregoing.
(b) on the Effective Date, 490,000 shares of EFI common stock. The
shares issued to Kjaer shall be subject to certain restrictions on sale and
shall have certain registration rights as more as fully provided in Sections
5(a)(ii) and 6(a).
(c) on the Effective Date, a warrant to purchase 250,000 shares of
EFI common stock at a price equal to $9.00; such warrant shall expire after
three years and shall include a mandatory exercise provision once the market
value of one EFI common share equals or exceeds $12.00. For purposes of this
provision, market value per EFI share shall be the mid-market price for such
shares on the NASDAQ Small Cap market.
2. Confidentiality. From and after the date hereof, each of Kjaer and any
person under his direction or control shall keep confidential all information
regarding the Bluebeards Castle, Inc. ("BCI") and CAI. Neither Kjaer nor any
person under his direction or control shall, without the prior written consent
of EFI, disclose such information except as required by law; provided, however,
that no such disclosure shall be made prior to giving EFI reasonable prior
written notification that explains in reasonable detail the basis for such
disclosure and reasonable opportunity to seek relief from such requirement. This
Section shall not apply to any information that is readily ascertainable from
public or published information that did not become public or published as a
result of a breach of the confidentiality provisions of this Section 2 or
otherwise as a result of any improper disclosure.
3. Non-Competition and Non-Solicitation. Kjaer covenants and agrees that
from and after the date hereof for a period of three years he will not, and will
cause each person under his or its direction or control not to:
(a) Engage in (or own any interests in or in any way have any involvement
with) any timeshare business within the U.S. or British Virgin Islands;
(b) Interfere with, disrupt, or attempt to disrupt any relationship,
contractual or otherwise, between EFI or any affiliates thereof and any
customer, supplier, sales representative, or employee of EFI, or of any
affiliates;
(c) Directly or indirectly solicit for employment, attempt to employ
or employ, or assist any entity in employing or soliciting for employment any
employee or executive who is, at such time, employed by EFI or any of its
affiliates.
4. [reserved]
5. Representations and Warranties.
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(a) Kjaer. Kjaer hereby represents and warrants to KGI and EFI that as of
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the date hereof and the Effective Date:
(i) Kjaer has full legal right, capacity, power and authority
to enter into this Agreement and to consummate the transactions contemplated
hereby; the execution, delivery and performance by Kjaer of this Agreement and
the actions contemplated hereby have been duly and validly authorized by all
necessary action, and this Agreement constitute or will constitute valid and
binding obligations of Kjaer, enforceable against him in accordance with their
terms. The execution, delivery and performance of this Agreement by Kjaer, the
consummation of the transactions contemplated hereby and the compliance with the
provisions of this Agreement by Kjaer will not conflict with, or result in any
violation of, or default under, or give rise to a right of termination,
cancellation or acceleration of any material obligation of or to a loss of a
material benefit under or result in the creation of any lien upon any of the
properties or assets of Kjaer under, (i) any material loan or credit agreement,
note, bond, mortgage, indenture, reciprocal easement agreement, lease or other
agreement, or (ii) any judgment, order, decree, statute, law, ordinance, rule or
regulations applicable to Kjaer or his properties or assets.
(ii) (1) Kjaer understands that (w) the shares of EFI common
stock to be issued to Kjaer pursuant to Section 1(b) will not be registered
under the Securities Act of 1933 (the "Securities Act") on the ground that the
offering and sale of the shares of EFI common stock are exempt from registration
pursuant to Section 4(2) of the Securities Act, (x) the resale or other
disposition of the shares of EFI common stock is restricted pursuant to the
securities laws, (y) there can be no assurance that Kjaer will be able to sell
or dispose of such shares, and (z) EFI presently intends to complete a public
offering of approximately 23 million shares of EFI common stock (the "EFI Public
Offering") and that the offering price of such stock may be substantially lower
than the price of EFI common stock as of the closing of the transaction
contemplated herein.
(2) the shares of EFI common stock to be issued to Kjaer
pursuant to Section 1(b) are being acquired for investment only and not with a
view to any sale or distribution of such shares or any part thereof in violation
of the Securities Act. Kjaer agrees at all times to sell or otherwise dispose of
all or any part of the shares of EFI common stock only pursuant to a
registration, or exemption therefrom, under the Securities Act and in compliance
with applicable state securities laws. Each party disposing of such EFI common
stock shall take any steps necessary to ensure that any purchaser thereof shall
agree not to sell or otherwise dispose of shares of EFI common stock except in
compliance with the requirements contained in the preceding sentence.
(3) Kjaer is an "accredited investor" within the meaning of
Rule 501 promulgated under the Securities Act and has such knowledge and
experience, or has consulted with persons having knowledge and experience, in
financial and business matters as to be capable of evaluating the merits and
risks of an investment in the shares of EFI common stock. Kjaer has received all
the information that such person deems material to his/her/its evaluation of the
business, assets, liabilities, financial condition and results of operations of
EFI and all the information that such person has requested from EFI and
considers necessary or appropriate for deciding whether to acquire the shares of
EFI common stock. Each such person has the ability to bear the economic risks of
such prospective investment and is able, without materially impairing such
financial condition, to hold the shares of EFI common stock for an indefinite
period of time and to suffer complete loss on such investment, in the event such
a loss should occur.
(b) EFI. EFI hereby represents and warrants to Kjaer that as of the date
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hereof and the Effective Date:
(i) EFI is a corporation duly organized, validly existing and
in good standing under the laws of the state of its incorporation, is duly
qualified and in good standing as a foreign corporation in the jurisdictions
where the ownership of its assets or the conduct of its business requires such
qualification (except where the failure to so qualify would not have a Purchaser
Material Adverse Effect (as defined in the EFI Purchase Agreement)), and has
full power and authority to own its properties and assets and to carry on
lawfully its business as currently conducted.
(ii) EFI has full legal right, power and authority to enter
into this Agreement and consummate the transactions contemplated hereby. The
execution, delivery and performance by EFI of this Agreement and the EFI
Purchase Agreement and the actions contemplated hereby and thereby have been
duly and validly authorized by all necessary corporate action, and this
Agreement and the EFI Purchase Agreement constitute valid and binding
obligations of EFI enforceable against it in accordance with their terms.
(c) KGI. KGI hereby represents and warrants to Kjaer that as of the date
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hereof and the Effective Date:
(i) KGI is a corporation duly organized, validly existing and
in good standing under the laws of the state of its incorporation, is duly
qualified and in good standing as a foreign corporation in the jurisdictions
where the ownership of its assets or the conduct of its business requires such
qualification (except where the failure to so qualify would not have a Seller
Material Adverse Effect (as defined in the EFI Purchase Agreement)), and has
full power and authority to own its properties and assets and to carry on
lawfully its business as currently conducted.
(ii) KGI has full legal right, power and authority to enter
into this Agreement and consummate the transactions contemplated hereby. The
execution, delivery and performance by KGI of this Agreement and the EFI
Purchase Agreement and the actions contemplated hereby and thereby have been
duly and validly authorized by all necessary corporate action, and this
Agreement and the EFI Purchase Agreement constitute valid and binding
obligations of KGI enforceable against it in accordance with their terms.
(d) Survival. Each of the representations and warranties of Kjaer,
EFI and KGI shall survive until the third anniversary of the date hereof.
6. Registration Rights; Rule 144.
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(a) At the Effective Date, EFI and Kjaer shall enter into a
piggyback registration rights agreement substantially in the form of Exhibit 6A
hereto.
(b) Kjaer acknowledges and agrees that the stock being issued to
Kjaer pursuant to Section 1(b) is not registered under the Securities Act. Kjaer
agrees that such stock will only be resold by him in full compliance with the
Securities Act including, without limitation, Rule 144 thereunder.
7. Covenants of Kjaer.
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(a) Kjaer shall not intentionally perform any act that, if
performed, or omit to perform any act that, if omitted to be performed, would
prevent or excuse the performance of this Agreement or the EFI Purchase
Agreement by any Party hereto or thereto, or which would result in any
representation or warranty herein contained of such Party being untrue in any
material respect.
(b) Kjaer shall, on or before the Effective Date, disclose in
writing to the other Parties hereto any event or condition the occurrence of
which would violate or result in a violation of any of its representations,
warranties, or covenants contained in this Agreement or affect its ability to
perform fully the transactions contemplated by this Agreement or cause any
information contained in the Disclosure Schedule supplied to EFI by KGI to be
inaccurate or incomplete at any time after the date hereof until the Effective
Date.
(c) Kjaer shall each deliver or cause to be delivered to EFI or KGI,
as the case may be, such instruments as the other may reasonably request for the
purpose of carrying out this Agreement.
(d) If requested to do so, Kjaer shall cooperate and use his
reasonable efforts to have his agents and employees cooperate with EFI on and
after the Effective Date in furnishing information, evidence, testimony and
other assistance in connection with any filing obligations, actions,
proceedings, arrangements or disputes of any nature with respect to matters
pertaining to all periods prior to the Effective Date. Kjaer shall each deliver
or cause to be delivered to EFI or RFI at such times and places as shall be
reasonably agreed to such instruments as EFI or RFI may reasonably request for
the purpose of carrying out this Agreement.
(e) Kjaer shall not aid, assist, provide information or advice to,
or cooperate with Mr. Xxxx Xxxxxxxxx, Castle Holdings, L.L.C. or any other
person or persons acting in conert with them in connection with the Lawsuit or
any other action that any of the foregoing shall bring or threaten against any
of the parties hereto.
8. Kjaer's Release of KGI and EFI. Effective as of the Effective Date,
Kjaer, for himself, his respective successors and assigns, and each person he
owns or controls (all of the foregoing parties collectively referred to
hereinafter as the "Kjaer Releasors"), for and in consideration of the release
of even date provided to the Kjaer Releasors by KGI and EFI pursuant to this
Agreement, and for other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, hereby release and forever discharge
KGI, EFI, RFI, KCHC, BCI, CAI and their respective stockholders, officers,
directors, employees, agents, successors and assigns (collectively, the "KGI/EFI
Releasees"), of and from any and all actions, claims, causes of action, demands
and obligations of all kinds, arising at law or in equity, whether known or
unknown, which any Kjaer Releasor ever had, now has or hereafter can, shall or
may have, directly or indirectly, against any KGI/EFI Releasee for, upon or by
reason of any matter, cause, transaction or thing whatsoever from the beginning
of time to the date hereof. Notwithstanding the foregoing, the Kjaer Releasors
expressly reserve and retain, and do not release or discharge, any rights of
Kjaer Releasors arising under this Agreement and the other documents and
instruments delivered in connection therewith.
9. KGI's and EFI's Release of Kjaer. Effective as of the Effective Date,
each of KGI, RFI, EFI, KCHC, BCI and CAI, for itself, its respective successors
and assigns, and each person it owns or controls (all of the foregoing parties
collectively referred to hereinafter as the "KGI/EFI Releasors"), for and in
consideration of the release of even date provided to KGI and EFI by Kjaer
pursuant to this Agreement, and for other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, hereby release and forever
discharge each of Kjaer and his respective agents, successors and assigns in
their capacities as such (collectively, the "Kjaer Releasees"), of and from any
and all actions, claims, causes of action, demands and obligations of all kinds,
arising at law or in equity, whether known or unknown, which any KGI/EFI
Releasor ever had, now has or hereafter can, shall or may have, directly or
indirectly, against any Kjaer Releasee for, upon or by reason of any matter,
cause, transaction or thing whatsoever from the beginning of time to the date
hereof. Notwithstanding the foregoing, the KGI/EFI Releasors expressly reserve
and retain, and do not release or discharge, any rights of KGI/EFI Releasors
arising under this Agreement and the other documents and instruments delivered
in connection therewith.
10. No Admission of Liability. It is expressly understood and agreed that
this Agreement does not constitute an admission by any party of any liability or
wrongdoing nor does it constitute any admission by any party of the truth of any
of the allegations raised by any other party in the Lawsuit.
11. Costs and Fees. All costs and fees of all parties shall be borne by the
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party that has incurred the cost or fee.
12. General Provisions.
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(a) Entire Agreement. This Agreement supersedes all prior agreements
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between the parties (written or oral) and is intended as a complete and exclusive
statement of the terms of the Parties' agreement.
(b) Severability. The validity or enforceability of any term or
provision of this Agreement shall in no way affect the validity or
enforceability of any other term or provision. If any provision of this
Agreement is so broad as to be unenforceable, such provision shall be
interpreted to be only so broad as is enforceable.
(c) Amendment and Modification. This Agreement may be modified, amended,
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or supplemented only by an instrument in writing signed by each Party.
(d) Arm's Length Agreement. This Agreement has been negotiated at
arm's length and between persons sophisticated and knowledgeable in the matters
dealt with in this Agreement. In addition, each party has been represented by
experienced and knowledgeable legal counsel. Accordingly, any rule of law or
legal decision that would require interpretation of any ambiguities in this
Agreement against the party that has drafted the Agreement is not applicable and
is waived. This Agreement shall be construed without regard to the identity of
the person who drafted it or the party who caused it to be drafted and shall be
construed as if all parties had jointly prepared this Agreement. Each and every
provision of this Agreement shall be construed as though all of the parties
participated equally in its drafting, and any uncertainty or ambiguity shall not
be interpreted against any one party. The provisions of this Agreement shall be
interpreted in a reasonable manner to effect the purpose of the parties and of
this Agreement.
(d) Assignment. No party shall assign any of its rights or delegate
any of its obligations under this Agreement without the prior written consent of
the other party.
(e) No Third Party Beneficiaries. Except as otherwise expressly
provided, nothing in this Agreement shall entitle any person other than Kjaer,
KGI or EFI, or their respective successors and assigns as permitted under this
Agreement, to any claim, cause of action, remedy, or right of any kind. No
current or former employee of any party has any right to enforce this agreement
against any party.
(f) Notices. All notices, requests, demands, and other
communications provided in this Agreement shall be in writing and shall be
deemed given if delivered personally, transmitted by facsimile (receipt
confirmed), sent by national overnight courier service, or mailed by registered
or certified United States Mail (return receipt requested) postage prepaid, to
the parties at the following addresses (or at such other address for a party as
shall be specified by like notice, provided that notices of a change of address
shall be effective only on receipt of such notice):
(i) To KGI:
Kosmas Group International, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxxxx Xxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
Fax: (000) 000-0000
With a copy to:
Xxxx Xxxx & Xxxx
000 Xxxxxxxx Xxxxxx
Xxxxxxx Xxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx
Fax: (000) 000-0000
(ii) To EFI:
Equivest Finance, Inc.
0 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxx
Fax: (000) 000-0000
With a copy to:
Xxxxxx, Xxxxxx & Xxxxxxxxx
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Attn: Xxxx X. Xxxxxx, Esquire
Fax: (000) 000-0000
(iii) To Kjaer
With a copy to:
Xxxx Xxxxx Xxxx & XxXxxx LLP
000 Xxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, Xxx Xxxxxx 00000-0000
Attn: Xxxxx X. D'Amour
Fax: (000) 000-0000
All notices, requests, demands, and other communications shall be effective at
the earlier of (a) five (5) business days after deposit of the same in the
United States Mail, certified postage prepaid; (b) twenty-four (24) hours after
delivery to a national overnight courier service; or (c) confirmation of receipt
if transmitted by facsimile or if delivered personally.
(g) Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of New York, without regard to its principles or
rules regarding conflicts of laws.
(h) Jurisdiction, Venue, and Service of Process. The parties consent
to, and waive any objection to, the exclusive jurisdiction of the United States
District Court for the Northern District of New York, or any state court located
in Onondaga County, New York, over the person of any party to this Agreement,
for purposes of any action brought under or as the result of a breach of this
Agreement. The parties agree that venue of any action brought under or as the
result of a breach of this Agreement shall be proper in the courts named above,
and each Party waives any objection to such venue.
(i) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(j) Specific Performance; Other Equitable Relief. The parties agree
that irreparable damage would occur in the event that any of the provisions of
this Agreement were not performed by them in accordance with their specific
terms or were otherwise breached. It is accordingly agreed that the
non-breaching party shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
hereof, this being in addition to any other remedy to which EFI is entitled at
law or in equity. The parties further agree that rescission shall not be relief
for any action relating to this Agreement.
(k) Jury Trial Waiver. TO THE FULL EXTENT PERMITTED BY LAW, EACH OF
THE PARTIES HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED HEREON,
OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF
ANY PARTY HERETO.
(l) Termination. This Agreement may be terminated at any time on or before
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the Effective Date:
(i) by the mutual written agreement of the parties thereto;
(ii) by any party hereto if the EFI Purchase Agreement is terminated
for any reason;
(iii) by any party hereto if the Effective Date does not occur
prior to April 15, 1999.
XXXXXXXXX XXXXX
By:
Its:
EQUIVEST FINANCE, INC.
By:
Its:
KOSMAS GROUP INTERNATIONAL, INC.
By:
Its:
