As filed with the Securities and Exchange Commission on February 12, 1997
Registration No. 333-__________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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WESTMARK GROUP HOLDINGS, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 13-3784149
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification Number)
organization)
355 N.E. Fifth Avenue Mark Schaftlein
Delray Beach, Florida 33483 355 N.E. Fifth Avenue
(561) 243-8010 Delray Beach, Florida 33483
(Address, including zip code, and (Name, address, including zip code,
telephone number, including and telephone number, including
area code of registrant's area code, of agent for service)
principal executive offices)
SETTLEMENT AGREEMENT
OF CASSIDY & ASSOCIATES
(Full Title of the Plan)
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COPY TO:
Thomas C. Pritchard
Brewer & Pritchard, P.C.
1111 Bagby, 24th Floor
Houston, Texas 77002
Phone (713) 659-1744
Fax (713) 659-2430
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CALCULATION OF REGISTRATION FEE
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PROPOSED
PROPOSED MAXIMUM
TITLE OF MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO BE AMOUNT BEING OFFERING PRICE OFFERING REGISTRATION
REGISTERED REGISTERED(1) PER SHARE(2) PRICE(2) FEE
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Common Stock, par value
$.001 per share........ 45,853 $1.15 $52,730 $100
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(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, the
number of shares of the issuer's Common Stock registered hereunder will be
adjusted in the event of stock splits, stock dividends or similar
transactions.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457, on the basis of the average of the
last sales price of the Common Stock for the previous three days.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Westmark Group Holdings, Inc.
("Company" or "Registrant") with the Securities and Exchange Commission are
incorporated herein by reference:
1. The Company's latest annual report filed pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended ("Exchange Act"),
or, either (i) the Company's latest prospectus filed pursuant to Rule 424(b)
under the Securities Act of 1933, as amended ("Securities Act") that contains
audited financial statements for the Company's latest fiscal year for which such
statements have been filed, or (ii) the Company's effective Registration
Statement on Form 10 or Form 10-SB filed under the Exchange Act containing
audited financial statements for the Company's latest fiscal year.
2. All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the document referred
to in (1) above.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to the Registration Statement which indicates that all
shares of common stock offered have been sold or which deregisters all of such
shares then remaining unsold, shall be deemed to be incorporated by reference in
the Registration Statement and to be a part thereof from the date of filing of
such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Under the Company's Certificate of Incorporation, the authorized
capital stock of the Company consists of 60 million shares, of which 50 million
shares are Common Stock and 10 million shares are preferred stock. As of the
date of this Prospectus, the Company had outstanding 4,630,780 shares of Common
Stock and 118,750 shares of Series A Preferred Stock, 300,000 shares of Series B
Preferred Stock, 200,000 shares of Series C Preferred Stock, 50,000 shares of
Series D Preferred Stock held of record by 59 persons, and 130,000 shares of
Series E Preferred Stock. The Company has reserved 218,483 shares for issuance
upon exercise of outstanding Options, 1,671,993 shares for issuance upon
exercise of Warrants, 3,194,994 shares for issuance upon conversion of the
Preferred Stock.
The following summary description of the securities of the Company is
qualified in its entirety by reference to the Certificate of Incorporation, a
copy of which is filed as an exhibit to the Registration Statement of which this
Prospectus is a part.
COMMON STOCK
The holders of Common Stock are entitled to one vote per share with
respect to all matters required by law to be submitted to stockholders of the
Company. The holders of Common Stock have the sole right to vote, except as
otherwise provided by law or by the Company's Certificate, including provisions
governing any preferred stock. The Common Stock does not have any cumulative
voting, preemptive, subscription or conversion rights. Election of directors and
other general shareholder action requires the affirmative vote of a majority of
shares represented at a meeting in which a quorum is represented. The
outstanding shares of Common Stock are, and the shares of Common Stock offered
hereby will be, upon payment therefor as contemplated herein, validly issued,
fully paid and non-assessable.
Subject to the rights of any outstanding shares of preferred stock, the
holders of Common Stock are entitled to receive dividends when, as and if
declared by the Board of Directors out of funds legally available therefor. In
the event of liquidation, dissolution or winding up of the affairs of the
Company, the holders of Common Stock are entitled to share ratably in all assets
remaining available for distribution to them after payment or provision for all
liabilities and any preferential liquidation rights of any preferred stock then
outstanding.
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PREFERRED STOCK
The Board of Directors is authorized, without action by the holders of
the Common Stock, to provide for the issuance of the preferred stock in one or
more series, to establish the number of shares to be included in each series and
to fix the designations, powers, preferences and rights of the shares of each
such series and the qualifications, limitations or restrictions thereof. This
includes, among other things, voting rights, conversion privileges, dividend
rates, redemption rights, sinking fund provisions and liquidation rights which
shall be superior to the Common Stock. The issuance of one or more series of the
preferred stock could adversely affect the voting power of the holders of the
Common Stock and could have the effect of discouraging or making more difficult
any attempt by a person or group to attain control of the Company. The Company
has no present plans to issue any additional shares of preferred stock.
SERIES A PREFERRED STOCK. In April 1996, the Board of Directors
established a series of shares setting forth the preferences, rights and
limitations and authorizing the issuance of up to 200,000 shares of series A
cumulative preferred stock ("Series A Preferred Stock"). In April 1996, an
aggregate of 100,000 shares of Series A Preferred Stock were issued with an
aggregate stated value of $400,000 to Mr. Hollenbeck and an aggregate of 18,750
shares of Series A Preferred Stock were issued to an unaffiliated third party.
The Series A Preferred Stock has a liquidation preference of $4 per share, plus
any accrued unpaid dividends, is redeemable by the Company at a redemption price
of $4 per share, plus accrued unpaid dividends to the date of redemption, after
October 1, 1996 the holder can force redemption by the Company upon the same
redemption terms that the Company possesses, and does not have any voting
rights. The shares of Series A Preferred Stock are convertible into shares of
Common Stock at the lessor or (i) $1.50 or (ii) 84% of the closing bid price on
the day prior to conversion (subject to adjustment).
SERIES B PREFERRED STOCK. In April 1996, the Board of Directors
established a series of shares setting forth the preferences, rights and
limitations and authorizing the issuance of up to 300,000 shares of series B
cumulative preferred stock ("Series B Preferred Stock"). In April 1996, an
aggregate of 300,000 shares of Series B Preferred Stock were issued with an
aggregate stated value of $600,000. The Series B Preferred Stock has a
liquidation preference of $2 per share, plus any accrued unpaid dividends, is
redeemable by the Company at a redemption price of $2 per share, plus accrued
unpaid dividends to the date of redemption, and does not have any voting rights.
The shares of Series B Preferred Stock are convertible by the holders in shares
of Common Stock at the lesser of (i) $2.00 or (ii) 84% of the closing bid price
on the day prior to conversion (subject to adjustment). The shares of Series B
Preferred Stock automatically convert, at the above referenced conversion rate,
into shares of Common Stock in April 1998.
SERIES C PREFERRED STOCK. In March 1996, the Board of Directors
established a series of shares setting forth the preferences, rights and
limitations and authorizing the issuance of up to 500,000 shares of series C
cumulative preferred stock ("Series C Preferred Stock"). Effective March 1996,
an aggregate of 200,000 shares of Series C Preferred Stock were issued with an
aggregate stated value of $700,000. Upon the closing of the Westmark-Medical
Industries Agreement, the 200,000 shares of Series C Preferred Stock will be
redeemed by the Company and, for purposes of this Prospectus, are not deemed
outstanding.
SERIES D PREFERRED STOCK. In August 1996, the Board of Directors
established a series of shares setting forth the preferences, rights and
limitations and authorizing the issuance of up to 1,000,000 shares of series D
convertible preferred stock ("Series D Preferred Stock"). In August 1996, an
aggregate of 200,000 shares of Series D Preferred Stock were issued with an
aggregate stated value of $1,000,000. The Series D Preferred Stock pays interest
quarterly at 10% per annum. The Series D Preferred Stock has a liquidation
preference of $5 per share, is redeemable by the Company and does not have any
voting rights. The shares of Series D Preferred Stock are convertible by the
holders in shares of Common Stock at 100% of the closing bid price on the day of
conversion.
SERIES E PREFERRED STOCK. In July 1996, the Board of Directors
established a series of shares setting forth the preferences, rights and
limitations and authorizing the issuance of up to 130,000 shares of series E
convertible preferred stock ("Series E Preferred Stock"). In July 1996, an
aggregate of 130,00 shares of Series E Preferred Stock were issued with an
aggregate stated value of $1,300,000. The 130,000 shares of Series E Preferred
Stock will be converted by the holder at the price of $.45 per share, for the
issuance of 2,888,889 shares of Common Stock upon the closing of the
Westmark-GTB Agreement, and for purposes of this Prospectus are not deemed
outstanding.
SERIES F PREFERRED STOCK. In August 1996, the Board of Directors
established a series of shares setting forth the preferences, rights and
limitations and authorizing the issuance of up to 1,000,000 shares of series F
convertible
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preferred stock ("Series F Preferred Stock"). The Series F Preferred Stock has a
liquidation preference of $5 per share, is redeemable by the Company and does
not have any voting rights. The shares of Series F Preferred Stock are
convertible by the holders in shares of Common Stock at the greater of (i) $1.00
or (ii) the average closing bid price for the five days prior to conversion
(subject to adjustment).
WARRANTS
There are warrants outstanding authorizing the holders to purchase an
aggregate of 1,671,993 shares of Common Stock, currently exercisable and
expiring between one and eight years from the date of this Prospectus at
exercise prices between $1.00 and $9.00.
ITEM 6.INDEMNIFICATION OF DIRECTORS AND OFFICERS
A. The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction or upon a plea of NOLO CONTENDERE or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
B. The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
C. To the extent that a director, officer, employee or agent of the
Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (A) and (B), or in defense
of any claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
D. Any indemnification under subsections (A) and (B) (unless ordered by a
court) shall be made by the Corporation only as authorized in the specific case
upon a determination that indemnification of the director, officer, employee or
agent is proper in the circumstances because he has met the applicable standard
of conduct set forth in subsections (A) and (B). Such determination shall be
made (i) by a majority vote of the directors who are not parties to such action,
suit or proceeding, even though less than a quorum, or (ii) if there are no such
directors, or if such directors so direct, by independent legal counsel in a
written opinion, or (iii) by the stockholders.
E. Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the Corporation in advance of the
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final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the Corporation as authorized by the Certificate of Incorporation. Such expenses
(including attorneys' fees) incurred by other employees and agents may be so
paid upon such terms and conditions, if any, as the Board of Directors deems
appropriate.
F. The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this Article shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office.
G. The Corporation shall have the power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the Corporation would have the power to indemnify him
against such liability under the Certificate of Incorporation.
H. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
ITEM 8.EXHIBITS
The following exhibits are filed as part of this Registration Statement:
4.1(1) Form of specimen Common Stock
5.1(2) Opinion Regarding Legality
10.1(2) Settlement Agreement of Cassidy & Associates
24.1(2) Consent of Comiskey & Company, P.C.
24.2(2) Consent of Brewer & Pritchard, P.C. (Contained in
Exhibit 5.1)
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(1) The information required by this exhibit is incorporated by reference to
the exhibits filed in connection with the Company's Registration
Statement on Form SB-2 (Commission File No. 333-05599)
(2) Filed herewith.
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
i. To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
ii. To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the registration statement;
and
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iii. To include any additional or changed material
information with respect to the plan of
distribution.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
BONA FIDE offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining liability under the Securities Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial BONA FIDE offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form SB-2 and authorized this Registration Statement
to be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Delray, State of Florida, on the 12h day of February, 1997.
Westmark Group Holdings, Inc.
By /s/ MARK SCHAFTLEIN
Mark Schaftlein, President, Chief
Executive Officer and Director
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Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
SIGNATURE TITLE DATE
/s/ MARK SCHAFTLEIN President, Chief Executive February 12, 1997
Mark Schaftlein Officer and Director
/s/ NORMAN H, BIRMINGHAM Director and Chief Financial February 12, 1997
Norman J. Birmingham Officer
/s/ TODD WALKER Director February 12, 1997
Todd Walker
/s/ LOUIS RESWEBER Director February 12, 1997
Louis Resweber
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EXHIBIT 5.1
February 12, 1996
Westmark Group Holdings, Inc.
355 N.E. Fifth Avenue
Delray Beach, Florida 33483
Re: Westmark Group Holdings, Inc.
Registration Statement on Form S-8
Gentlemen:
We have represented Westmark Group Holdings, Inc., a Delaware
corporation ("Company"), in connection with the preparation of a registration
statement filed with the Securities and Exchange Commission on Form S-8
("Registration Statement") relating to the proposed issuance of up to 45,853
shares ("Shares") of the Company's common stock, par value $.001 per share
("Common Stock") pursuant to the terms of the Settlement Agreement of Cassidy &
Associates dated March 27, 1996 ("Plan"). In this connection, we have examined
originals or copies identified to our satisfaction of such documents, corporate
and other records, certificates, and other papers as we deemed necessary to
examine for purposes of this opinion, including but not limited to the Plan, the
Certificate of Incorporation of the Company, the Bylaws of the Company, and
resolutions of the Board of Directors of the Company.
We are of the opinion that the Shares will be, when issued pursuant to
the Plan, legally issued, fully paid and nonassessable.
We hereby consent to the filing of this Opinion as an Exhibit to the
Registration Statement.
Very truly yours,
BREWER & PRITCHARD
EXHIBIT 10.1
SETTLEMENT AGREEMENT AND
MUTUAL RELEASE OF ALL CLAIMS
This settlement Agreement and Mutual Release of All Claims ("Agreement"),
dated March 27, 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
owned 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.
Westmark shall
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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 follows:
"A general release does not extend to claims which the creditor does not
know
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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 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.
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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 be 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
and
Harry C. Coolidge, Esq.
1260 41st Ave., Suite N
Capitola, California 59010
4
<PAGE>
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: 4/2/96
CASSIDY & ASSOCIATES WESTMARK GROUP HOLDINGS, INC.
By: /s/ JAMES M. CASSIDY By: /s/ NORMAN BIRMINGHAM
Its: Its: President
EXHIBIT 24.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this Form S-8 registration
statement of our report, dual dated March 20, 1996 and April 19, 1996, on the
financial statements of Westmark Group Holdings, Inc., and to reference to our
firm under the caption "experts" in the prospectus.
Aurora, Colorado
February 11, 1997 COMISKEY & COMPANY, A
PROFESSIONAL CORPORATION
