10.3
SETTLEMENT AGREEMENT
This Settlement Agreement (this "Agreement") is dated as of this 30th
day of April, 2003 between HUMANA TRANS SERVICE GROUP, LTD. (the "Company"), a
Delaware corporation located at 0000 Xxx Xxxxx Xxxx, Xxxxx 0, Xxxxxxx, Xxxxxxxx
00000, a wholly-owned subsidiary of NATIONAL MANAGEMENT CONSULTING INC., a
Delaware corporation (NMC") located at 000 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, and XXXXX X. XXXXXXX, an individual residing at 000 Xxxxxxxxx
Xxxx, Xxxxx Xxxxxxx, Xxxxxxxxxxxx 00000 ("JWZ").
WITNESSETH:
WHEREAS, the Company entered into a Employment Agreement effective as
of March 1, 2003 with JWZ (the "Employment Agreement") and NMC as a party to the
Employment Agreement guaranteed the financial performance of the Company with
regard to the obligations set forth in Sections 6 (a) and (c) thereof; and
WHEREAS, the Company, NMC and JWZ have determined that it is in the
best interests of all parties to the Employment Agreement to terminate the
Employment Agreement on the terms set forth herein and in conjunction with such
termination, JWZ shall also return 1,750,000 shares of common stock of NMC owned
by JWZ with attached stock powers duly executed in blank and guaranteed by a
Medallion participant to NMC which shares of common stock shall be cancelled
(the "Returned Shares"); and
WHEREAS, in conjunction with the termination of the Employment
Agreement, the Company, NMC and JWZ have agreed to enter into a stock purchase
agreement (the "Stock Purchase Agreement") pursuant to which, among other
things, JWZ or an entity controlled by JWZ (collectively, the "Purchaser") will
purchase all the shares of the Company (the "Humana Shares") and together with
JWZ, will execute a secured promissory note in connection therewith (the "Note")
secured by certain shares of common stock owned by JWZ or owned through entities
controlled by JWZ, that are to be pledged to NMC pursuant to a pledge agreement
and an escrow agreement (the "Pledge Agreement" and the "Escrow Agreement"); and
WHEREAS, in conjunction with the Purchaser's acquisition of the Humana
Shares, JWZ will enter into a consulting agreement with NMC to provide on a
non-exclusive basis, introductions to NMC with regard to a variety of potential
corporate transactions with compensation to be set forth in such consulting
agreement (the "Consulting Agreement") (the Employment Agreement, Stock Purchase
Agreement, Note, Pledge Agreement, Escrow Agreement and Consulting Agreement
shall be referred to collectively as the "Ancillary Agreements").
NOW, THEREFORE, for good and valuable consideration, the Company, NMC,
and JWZ, intending to be legally bound, agree as follows:
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1. TERMINATION OF EMPLOYMENT AGREEMENT. Upon execution of this Agreement
JWZ's employment under the Employment Agreement shall terminate and (A) JWZ
shall deliver unconditionally certificate or certificates representing the
Returned Shares to NMC which Returned Shares shall be cancelled and retired by
NMC and shall cease to exist; and (B) there shall be no further obligations of
any kind owed by either (i) JWZ to the Company and NMC or (ii) the Company and
NMC to JWZ, including, but not limited to:
(a) any commissions, salary, bonuses, stock, options or any other
form of compensation, including any securities that may be held
on JWZ or Sentry Capital Management Inc.'s behalf by Xxxxxxx
Xxxxx, Esq;
(b) any expenses, including, but not limited to, meals, travel,
computer equipment expense, or telephone expense.
2. MUTUAL RELEASES. (A) Upon execution of this Agreement by JWZ, the
Company and NMC:
(i) RELEASE. JWZ, any entity controlled or under the authority of JWZ
and JWZ's immediate family members, dependents, personal representatives, heirs,
creditors, executors, administrators, successors, assigns or counsel do hereby
fully and forever, release Waive and discharge the Company and NMC and their
respective officers, directors, shareholders, agents, attorneys, and employees,
whether past, present, or future (the "Released Parties") form any and all
actins, suits, debts, demands, damages, claims, judgments, or liabilities of any
nature, including costs and attorneys' fees, whether known or unknown,
including, but not limited to, all claims arising out of JWZ's employment with
or separation from any of the Released Parties, such as (by way of example only)
any claim for bonus, severance, or other benefits apart from the benefits stated
herein; breach of contract; wrongful discharge; impairment of economic
opportunity; any claim under common-law or at equity; any tort; claims for
reimbursements; claims for commissions; or claims for employment discrimination
under any state, federal and local law, statute, or regulation or claims related
to any other restriction or the right to terminate employment, including without
limitation, Title VII of the Civil Rights Act of 1964, as Amended, the Americans
with Disabilities Act of 1990, as Amended, and the Human Rights Act, as Amended.
Nothing herein shall release any party from any obligation under this Agreement.
JWZ acknowledges and agrees that this release and the covenant not to xxx set
forth in Section 2 are essential and material terms of this Agreement and that,
without such release and covenant not to use, no agreement would have been
reached by the parties and no benefits under the plan would have been paid. JWZ
understands and acknowledges the significance and consequences of this release
and this Agreement.
(ii) COVENANT NOT TO XXX. To the maximum extent permitted by law, JWZ
covenants not to xxx or to institute or cause to be instituted any action in any
federal, state, or local agency or court against any of the Released Parties,
including but not limited to any of the claims released in paragraph 2 of this
Agreement. In the event of JWZ's breach of the terms of this Agreement, without
prejudice to Company's other rights and remedies available at law or in equity,
except as prohibited by law, JWZ shall be liable for all costs and expenses
(including, without limitation, reasonable attorney's fees and legal expenses)
incurred by the
(iii) NON-DISCLOSURE. JWZ agrees that JWZ shall not disclose, divulge
or furnish to any person or entity the contents of this Agreement or the
circumstances relating to termination of JWZ's employment, except as required by
law, or pursuant to valid subpoena, discovery notice, demand or request, or
Court order or process, PROVIDED, HOWEVER, that JWZ may disclose such
information to JWZ's attorney, accountant or as required by law.
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(B) the Company and NMC and the Company and NMC's
respective officers, directors, employees, agents, successors, assigns or
counsel do hereby fully and forever, release, waive and discharge JWZ, any
entity controlled or under the authority of JWZ, and JWZ's heirs, creditors,
executors, successors and assigns and representatives (hereinafter collectively
referred to as the "Releasees") from and against each and every claim, demand,
cause of action, obligation, damage, complaint, expense or action of any kind,
description or nature whatsoever, known or unknown, suspected or unsuspected,
including, but not limited to, any claims for any moneys, or stock or stock
options that the Company and NMC and the Company and NMC's respective officers,
directors, employees, agents, successors, assigns or counsel has or may
hereafter have, against the Releasees arising out of any relationship involving
NMC and the Company including, but not limited to, the Employment Agreement.
This release specifically excludes the rights and obligations of the parties
under the Stock Purchase Agreement, the Pledge Agreement, the Note, the
Guaranty, and the Consulting Agreement and the Escrow Agreement.
3. REPRESENTATIONS OF JWZ. JWZ represents, warrants and agrees
as follows:
3.1 AUTHORITY TO EXECUTE AND PERFORM AGREEMENT; NO BREACH. JWZ
has the full legal right and power and all authority and approval
required to enter into, execute and deliver this Agreement and to
perform fully his obligations hereunder. This Agreement has been duly
executed and delivered by JWZ and, assuming due execution and delivery
by, and enforceability against, the Company and NMC, constitutes the
valid and binding obligation of JWZ enforceable in accordance with its
terms, subject to the qualifications that enforcement of the rights and
remedies created hereby is subject to (i) bankruptcy, insolvency,
reorganization, moratorium and other laws of general application
affecting the rights and remedies of creditors, and (ii) general
principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law). No approval or consent
of, or filing with, any governmental or regulatory body, and no
approval or consent of, or filing with, any other person is required to
be obtained by JWZ or in connection with the execution and delivery by
JWZ of this Agreement and consummation and performance by it of the
transactions contemplated hereby. The execution, delivery and
performance of this Agreement by JWZ and the consummation of the
transactions contemplated hereby in accordance with the terms and
conditions hereof by JWZ will not:
(a) knowingly violate, conflict with or result in the
breach of any of the material terms of, or constitute (or with
notice or lapse of time or both would constitute) a material
default under, any contract, lease, agreement or other
instrument or obligation to which JWZ is a party or by or to
which any of the properties and assets of JWZ may be bound or
subject;
(b) violate any order, judgment, injunction, award or
decree of any court, arbitrator, governmental or regulatory
body, by which either JWZ or the securities, assets,
properties or business of JWZ is bound; or
(c) knowingly violate any statute, law or regulation.
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4. REPRESENTATIONS OF THE COMPANY AND NMC. The Company and NMC
represent, warrant and agree as follows:
4.1 AUTHORIZATION. Each have full power, legal capacity and
authority to enter into this Agreement, to execute all attendant
documents and instruments necessary to consummate the transaction
herein contemplated, and to perform all of its obligations hereunder.
This Agreement and all other agreements, documents and instruments to
be executed in connection herewith have been effectively authorized by
all necessary action, corporate or otherwise, on the part of the
Company and NMC, which authorizations remain in full force and effect,
have been duly executed and delivered by the Company and NMC, and no
other corporate proceedings on the part of the Company and NMC are
required to authorize this Agreement and the transactions contemplated
hereby, except as specifically set forth herein. This Agreement
constitutes the legal, valid and binding obligation of the Company and
NMC and is enforceable with respect to the Company and NMC in
accordance with its terms, except as enforcement hereof may be limited
by bankruptcy, insolvency, reorganization, priority or other laws of
court decisions relating to or affecting generally the enforcements of
creditors' rights or affecting generally the availability of equitable
remedies. Neither the execution and delivery of this Agreement, nor the
consummation by the Company and NMC of any of the transactions
contemplated hereby, or compliance with any of the provisions hereof,
will (i) conflict with or result in a breach or, violation of, or
default under, any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, license, lease, credit agreement or other
agreement, document, instrument or obligation (including, without
limitation, any of its charter documents) to which the Company and NMC
is a party or by which either of them or any of their assets or
properties may be bound, or (ii) violate any judgment, order,
injunction, decree, statute or rule applicable to any Purchaser. No
authorization, consent or approval of any public body of authority or
any third party is necessary for the consummation by the Company and
NMC of the transactions contemplated by this Agreement.
5. MISCELLANEOUS PROVISIONS.
5.1 SEVERABILITY. In the event that any provision of this
Agreement is found to be illegal or unenforceable by any court or
tribunal of competent jurisdiction, then to the extent that such
provision may be made enforceable by amendment to or modification
thereof, the parties agree to make such amendment or modification so
that the same shall be made valid and enforceable to the fullest extent
permissible under existing law and public policies in the jurisdiction
where enforcement is sought, and in the event that the parties cannot
so agree, such provision shall be modified by such court or tribunal to
conform, to the fullest extent permissible under applicable law, to the
intent of the Parties in a valid and enforceable manner, if possible
and if not possible, then be stricken entirely from the Agreement by
such court or tribunal and the remainder of this Agreement shall remain
binding on the parties hereto.
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5.2 AMENDMENT. No amendment or modification of the terms or
conditions of this Agreement shall be valid unless in writing and
signed by the party or parties to be bound thereby.
5.3 GOVERNING LAW. This Agreement shall be interpreted,
construed, governed and enforced according to the internal laws of the
State of New York without regard to conflict or choice of law
principles of New York or any other jurisdiction. This Agreement shall
be executed in New York and is intended to be performed in New York. In
the event of litigation arising out of this Agreement, the parties
hereto consent to the personal jurisdiction of the State of New York,
County of New York.
5.4 NO WAIVER. If any party to this Agreement fails to, or
elects not to enforce any right or remedy to which it may be entitled
hereunder or by law, such right or remedy shall not be waived, nor
shall such nonaction be construed to confer a waiver as to any
continued or future acts, nor shall any other right or remedy be waived
as a result thereof. No right under this Agreement shall be waived
except as evidenced by a written document signed by the party waiving
such right, and any such waiver shall apply only to the act or acts
expressly waived in said document.
5.5 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, and each such counterpart will, for all purposes, be
deemed an original instrument, but all such counterparts together will
constitute but one and the same Agreement.
5.6 BINDING AGREEMENT. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto, and upon their
respective heirs, successors, assigns and legal representatives.
5.7 COUNSEL. Each of the parties hereto represents that it,
she or he has consulted legal counsel in connection with this
Agreement, or has been given full opportunity to review this Agreement
with counsel of his, her or its choice prior to execution thereof. The
parties hereto waive all claims that they were not adequately
represented in connection with the negotiation, drafting and execution
of this Agreement. Each party further agrees to bear its own costs and
expenses, including attorneys' fees, in connection with this Agreement.
If any party initiates any legal action arising out of or in connection
with enforcement of this Agreement, the prevailing party in such legal
action shall be entitled to recover from the other party all reasonable
attorneys' fees, expert witness fees and expenses incurred by the
prevailing party in connection therewith.
5.8 NOTICES. All notices and demands permitted, required or
provided for by this Agreement shall be made in writing, and shall be
deemed adequately delivered if delivered by hand or by mailing the same
via the United States Mail, prepaid certified or registered mail,
return receipt requested, or by priority overnight courier for next
business day delivery by a nationally recognized overnight courier
service that regularly maintains records of its pick-ups and deliveries
and has daily deliveries to the area to which the notice is sent,
addressed to the parties at their respective addresses as shown below:
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NAME ADDRESS
To the Company or NMC: National Management Consulting, Inc.
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
With a Copy To: Moritt Xxxx Hamroff & Xxxxxxxx LLP
000 Xxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
To Xxxxx X. Xxxxxxx: 000 Xxxxxxxxx Xxxx
Xxxxx Xxxxxxx, Xx. 00000
Facsimile: (000) 000-0000
With a Copy to: Xxxxxxx Xxxxx, P.C.
0 Xxxx Xxxxx
Xxxx Xxxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Notices delivered personally shall be deemed communicated as
of the date of actual receipt. Notices mailed as set forth above shall
be deemed communicated as of the date three (3) business days after
mailing, and notices sent by overnight courier shall be deemed
communicated as of the date one (1) business day after sending.
5.9 ENTIRE AGREEMENT. This Agreement and the Ancillary
Agreements set forth the entire agreement and understanding of the
parties hereto in respect of the subject matter contained herein, and
supersedes all prior agreements, promises, understandings, letters of
intent, covenants, arrangements, communications, representations or
warranties, whether oral or written, by any party hereto or by any
related or unrelated third party. All exhibits attached hereto, and all
certificates, documents and other instruments delivered or to be
delivered pursuant to the terms hereof are hereby expressly made a part
of this Agreement, and all references herein to the terms "this
Agreement", "hereunder", "herein", "hereby" or "hereto" shall be deemed
to refer to this Agreement and to all such writings.
5.10 SUCCESSORS AND ASSIGNS. As used herein the term "the
Parties" shall include their respective successors in interest,
licensees or assigns.
5.11 EXECUTION. Each person who signs this Agreement on behalf
of a corporate entity represents and warrants that he has full and
complete authority to execute this Agreement on behalf of such entity.
Each party shall bear the fees and expenses of its counsel and its own
out-of-pocket costs in connection with this Agreement.
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5.12 CAPTIONS. The captions appearing in this Agreement are
for convenience only, and shall have no effect on the construction or
interpretation of this Agreement.
[SIGNATURE PAGE FOLLOWS]
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[SIGNATURE PAGE TO SETTLEMENT AGREEMENT]
Executed by the Parties on this 30th day of April, 2003.
NATIONAL MANAGEMENT CONSULTANTS, INC.
By: _____________________________________
Name: Xxxxxx X. Xxxxxxxx
Title: President
HUMANA TRANS SERVICES GROUP, LTD.
By: _____________________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Executive Officer
XXXXX X. XXXXXXX
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