EXHIBIT 10.2
SETTLEMENT AGREEMENT
This Settlement Agreement (this "Agreement") is dated as of this 10th
day of July, 2003 between HUMANA TRANS SERVICES HOLDING CORP. (the "Company"), a
Delaware corporation located at 0000 Xxx Xxxxx Xxxx, Xxxxx 0, Xxxxxxx, Xxxxxxxx
00000, HUMANA TRANS SERVICES GROUP, LTD. a New York corporation located at 0000
Xxx Xxxxx Xxxx, Xxxxx 0, Xxxxxxx, Xxxxxxxx 00000 ("Humana Group"), NATIONAL
MANAGEMENT CONSULTING INC., a Delaware corporation ("NMCS") located at 000
Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 10022, JWZ HOLDINGS, INC., a New
York corporation located at 000 Xxxxxxxxx Xxxx, Xxxxx Xxxxxxx, Xxxxxxxxxxxx
00000 ("Holdings") and XXXXX X. XXXXXXX, an individual residing at 000 Xxxxxxxxx
Xxxx, Xxxxx Xxxxxxx, Xxxxxxxxxxxx 00000 ("JWZ").
WITNESSETH:
WHEREAS, the Company, Humana Group, NMCS and JWZ entered into a Stock
Purchase Agreement, Pledge Agreement, Senior Secured Promissory Note, Escrow
Agreement, Settlement Agreement and Consulting Agreement, all dated as of the
30th day of April, 2003; and
WHEREAS, as part of the transaction evidenced by the agreements entered
into, certain collateral was to be held by Xxxxxx & Xxxxxxxxx LLP, a limited
liability partnership, as escrow agent ("Escrow Agent"); and
WHEREAS, Escrow Agent was served with an execution which purports to
require delivery of all property of JWZ to the Sheriff of Nassau County (the
"Execution"); and
WHEREAS, JWZ has commenced legal proceedings to remove the Execution; and
WHEREAS, Humana Group, the Company, NMCS and JWZ desire to amend, and in
some cases, terminate the agreements as indicated below and to issue new
instructions to the Escrow Agent as a result.
NOW, THEREFORE, for good and valuable consideration, Humana Group, the Company,
NMCS, and JWZ, intending to be legally bound, agree as follows:
1. TERMINATION OF PLEDGE AGREEMENT AND SENIOR SECURED NOTE. Upon execution of
this Settlement Agreement, and the issuance of new instructions to the Escrow
Agent, as annexed hereto, the Pledge Agreement, and Senior Promissory Note
executed by the Parties shall be terminated and discharged as paid in full. As
consideration for the execution of this Agreement, the parties shall instruct
the Escrow Agent to release all Pledged Stock (as defined in the Escrow
Agreement) to NMCS, except (a) 175,000 shares of NMCS which shall be released to
JWZ; and (b) 1,000 shares of Humana Group which shall be released to the
Company. The Escrow Agent shall continue to hold all Pledged Stock until the
Execution is lifted. In the event the Execution proceeds, the Parties agree that
the first property released to the judgment creditor shall be the 175,000 shares
of NMCS belonging to JWZ. Upon execution of this Agreement the Escrow Agent
shall receive new instructions as per the Letter of Instruction as annexed
hereto as Exhibit A.
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2. MUTUAL RELEASES. (A) Upon execution of this Agreement by Holdings, JWZ, the
Company and NMCS:
(i) RELEASE. The Company, Holdings, JWZ, any entity
controlled or under the authority of such Parties,
their immediate family members, dependents, personal
representatives, heirs, creditors, executors,
administrators, successors, assigns or counsel (the "JW
Releasors") do hereby fully and forever, release waive
and discharge NMCS and their respective officers,
directors, shareholders, agents, attorneys,
consultants, and employees, whether past, present, or
future (the "Released Parties") from any and all
claims, causes of action, 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
amounts due or to become due under any of the
Agreements evidencing the transaction of April 30,
2003, including any amounts due for taxes or other
payments or liabilities of the Humana Group. The JWZ
Releasors acknowledge and agree that this release and
the covenant not to xxx set forth in Section 2 (ii)
below 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. The JWZ Releasors understand and acknowledge the
significance and consequences of this release and this
Agreement.
(ii) COVENANT NOT TO XXX. To the maximum extent permitted by
law, the JWZ Releasors covenant 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 Section 2 of this Agreement.
In the event of the JWZ Releasors' breach of the terms
of this Agreement, without prejudice to NMCS' other
rights and remedies available at law or in equity,
except as prohibited by law, the JWZ Releasors shall be
liable for all costs and expenses (including, without
limitation, reasonable attorney's fees and legal
expenses) incurred by the Released Parties defending
the action.
(iii)NON-DISCLOSURE. The JWZ Releasors agree that they 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 the JWZ
Releasors may disclose such information to their
attorney, accountant or as required by law.
(B) NMCS and its 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, causes of action, suits, debts, demands, damages or judgments
or action of any kind, description or nature whatsoever, known or unknown,
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including, but not limited to, any claims for any moneys, or stock or stock
options that NMCS and NMCS' respective officers, directors, employees, agents,
successors, assigns or counsel has or may hereafter have, against the Releasees
arising out of any relationship involving NMCS and the Humana Group including,
but not limited to those contained in the Stock Purchase Agreement, the Pledge
Agreement, and the Senior Secured Note. This release specifically includes the
rights and obligations of the parties under the Pledge Agreement, the Note, and
the Consulting Agreement and the Escrow Agreement, as well as any known claims
for additional monies owed to NMCS, and/or its respective officers, directors,
employees, agents, successors, assigns or counsel, including any claims from
Xxxxxx Xxxxxxx.
3. REPRESENTATIONS OF THE COMPANY, JWZ AND HOLDINGS. The Company, JWZ and
Holdings represent, warrant and agree as follows:
3.1 AUTHORITY TO EXECUTE AND PERFORM AGREEMENT; NO BREACH. Each of the Company,
JWZ and Holdings have 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 the Company, JWZ and Holdings and, assuming due execution and
delivery by, and enforceability against, the Company and NMCS, constitutes the
valid and binding obligation of the Company, JWZ and Holdings 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 the Company, JWZ or Holdings or in connection with
the execution and delivery by the Company, JWZ and Holdings of this Agreement
and consummation and performance by it of the transactions contemplated hereby.
The execution, delivery and performance of this Agreement by the Company, JWZ
and Holdings and the consummation of the transactions contemplated hereby in
accordance with the terms and conditions hereof by the Company, JWZ and Holdings
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 the Company, JWZ or
Holdings is a party or by or to which any of the properties
and assets of the Company, JWZ or Holdings 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 the Company, JWZ or Holdings or the
securities, assets, properties or business of the Company,
JWZ or Holdings is bound; or
(c) knowingly violate any statute, law or regulation.
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4. REPRESENTATIONS OF NMCS. NMCS represents, warrants and agrees as follows:
4.1 AUTHORIZATION. NMCS has 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 NMCS,
which authorizations remain in full force and effect, have been duly executed
and delivered by NMCS, and no other corporate proceedings on the part of NMCS
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 NMCS and is enforceable with respect to
NMCS 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 NMCS 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 NMCS 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 NMCS. No authorization,
consent or approval of any public body of authority or any third party is
necessary for the consummation by NMCS 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.
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.
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
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or remedy shall not be waived, nor shall such non-action 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:
Name Address
To the NMCS: National Management Consulting, Inc.
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
With a Copy To: Xxxx X'Xxxxxx,Esq
000 Xxxxxxx Xxxxxx- 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile:
To the Company, Holdings
or JWZ: 000 Xxxxxxxxx Xxxx
Xxxxx Xxxxxxx, Xxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
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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 exhibit sets 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.
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.
5.13 Non-Disparagement. Each party mutually agrees to refrain from making public
or private comments or taking any actions which disparage, or are disparaging,
derogatory or negative statements about the other, the business of any party or
the products, policies or decisions of any party, or any present or former
offices, directors or employees of any party or any of its operating divisions,
subsidiaries or affiliates. Further, each party agrees to conduct themselves at
all times in the future in a manner respectful of each other's rights and
privileges and to refrain from engaging in any actions detrimental to the
other's personal and professional welfare.
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[SIGNATURE PAGE TO SETTLEMENT AGREEMENT]
Executed by the Parties on this 10th day of July, 2003.
NATIONAL MANAGEMENT CONSULTING, INC.
By: /S/ XXXXXX X. XXXXXXXX
Name: Xxxxxx X. Xxxxxxxx
Title: President
HUMANA TRANS SERVICES HOLDING CORP.
By: /S/ XXXXX X. XXXXXXX
Name: Xxxxx X. Xxxxxxx
Title: Chief Executive Officer and Sole
Shareholder
XXXXX X. XXXXXXX
/S/ XXXXX X. XXXXXXX
JWZ HOLDINGS, INC.
By: /S/ XXXXX X. XXXXXXX
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
HUMAN TRANS SERIVCES GROUP, LTD.
By: /S/ XXXXX X. XXXXXXX
Name: Xxxxx X. Xxxxxxx
Title: Chief Executive Officer
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EXHIBIT A:
Letter of Instruction:
July 10, 2003
Xxxxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Re: Escrow Agreement of April 30, 2003 by and Between Xxxxx X.
Xxxxxxx, Humana Trans Services Holding Corp., National Management
Consulting, Inc., and Xxxxxx & Xxxxxxxxx LLP
Dear Xx. Xxxxxx:
Reference is made to the Escrow Agreement, as indicated above, and the
certain collateral that is being held by you, as Escrow Agent. Please be advised
that the Parties to the Escrow Agreement have entered into a Settlement
Agreement, dated as of July 10, 2003 (the "Settlement Agreement") with respect
to the Stock Purchase Agreement, the Pledge Agreement, and the Senior Secured
Note.
Please accept this Letter of Instruction as new instructions with
respect to the collateral held by you pursuant to those agreements.
We are aware of an Execution served upon you with respect to a claim by
a Judgment Creditor against Xxxxx X. Xxxxxxx, and all collateral currently held
by you shall remain held until said Execution is lifted by the Judgment Creditor
or Court Order. Nevertheless, the parties have agreed to transfer the right and
title to certain collateral pending such a lifting of the Execution.
Pursuant to the Settlement Agreement, Xxxxx X. Xxxxxxx and JWZ
Holdings, Inc. have given up their rights to the shares of Series A preferred
stock of XXXXxx.xxx, Inc. and 325,000 shares out of the 500,000 shares of common
stock of National Management Consulting, Inc., and has transferred all rights
and title to National Management Consulting, Inc. All remaining collateral shall
remain in the name of and title shall continue to rest with Xxxxx X. Xxxxxxx.
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These instructions shall remain in full force and effect until
otherwise notified, or the Execution shall be lifted by the Judgment Creditor or
Court Order.
Executed by the Parties on this 10th day of July, 2003.
NATIONAL MANAGEMENT
CONSULTING, INC.
By: /S/ XXXXXX X. XXXXXXXX
-----------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
HUMANA TRANS SERVICES HOLDING
CORP.
By: /S/ XXXXX X. XXXXXXX
---------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Executive Officer
XXXXX X. XXXXXXX
/S/ XXXXX X. XXXXXXX
---------------------------------
JWZ HOLDINGS, INC.
By: /S/ XXXXX X. XXXXXXX
----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Executive Officer
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