PROPOSED SETTLEMENT AGREEMENT AND RELEASE WITH MR. GRANVILLE-SMITH
Proposed Settlement Agreement
This Settlement Agreement (the "Agreement") is made and entered into by and
among Equity Growth Systems, inc., a publicly held Delaware corporation with a
class of securities registered under Section 12(g) of the Securities and
Exchange Act of 1934, as amended ("Equity Growth Systems" and the "Exchange
Act," respectively) and Edward Granville-Smith, a Florida resident who for
longer than the past three years has served as the sole director and the chief
executive officer of Equity Growth Systems (the "Retiring Principal;" Equity
Growth Systems and the Retiring Principal being collectively referred to as the
"Parties" and each being sometimes hereinafter generically referred to as a
WHEREAS, the Retiring Principal desires to retire from his official roles as
an officer and director of Equity Growth Systems and in order to induce new
individuals to assume successor roles, has offered to settle all claims he may
have under employment, consulting and creditor relationships
with Equity Growth Systems, as hereinafter described:
NOW, THEREFORE, in consideration of the premises, as well as the mutual
covenants hereinafter set forth, the Parties, intending to be legally bound,
hereby agree as follows:
First: Terms of Settlement
The Retiring Principal and Equity Growth Systems hereby agree to settle all
of their outstanding claims against each other and their members, partners,
officers, directors, agents and affiliates, on the following terms:
O. In full payment of all obligations to the Retiring Principal and his
affiliates owed by Equity Growth Systems, Inc., and its affiliates, from the
beginning of time until the date of this Agreement, as well as in
consideration for the extinguishment of all agreements between them, Equity
Growth Systems will, within 72 hours after receipt of a copy of the Bolina
Note (as hereinafter described), pay to the Retiring Principal the sum of
P. The Retiring Principal hereby relinquishes all rights under any agreements
between him or his affiliates and Equity Growth Systems and its affiliates,
other than those created by this Agreement.
Q. The Retiring Principal will, subject to physical capabilities and limitations
based on his health:
8. Cooperate with successor management to terminate all agreements with
former officers, directors and consultants not specifically ratified by
new management and in recovery of securities issued pursuant thereto,
including, without limitation, Messrs.
Holman, Moffitt and Salyer;
9. Cooperate with successor management to negotiate with and identify
10. Make management aware of Equity Growth Systems business operations and
provide assistance in its continuation or termination; and,
11. Upon resumption of normal physical capabilities, resume a more active
role in management, subject to negotiation of reasonable compensation
R. The Retiring Principal will, as soon as possible after execution of this
Agreement, provide to Leonard Miles Tucker of Boca Raton, Florida, copies of
the notes reflected in correspondence from Equity Growth Systems to WEFT
Trust dated June 14, 1996 (hereinafter and heretofore collectively referred
to as the Bolina Note[s]"), together with an estoppel letter pertaining
thereto from Mr. Spellman, the principal of the WEFT Trust, attesting to the
current status of all obligations pertaining thereto or arising thereunder.
S. The Retiring Principal hereby represents and warrants that, to the best of
his knowledge under his current physical and mental circumstances, Equity
Growth Systems has no liabilities not reflected in the financial statements
heretofore filed by it with the securities and Exchange Commission, except
as specified in exhibit 1-D annexed hereto and made a part hereof.
Second Mutual Releases
In consideration for the exchange of covenants reflected above but excepting
only the obligations created by this Agreement, the Parties hereby each release,
discharge and forgive the other, and each of the others' members, officers,
directors, partners, agents and employees from any and all liabilities, whether
current or inchoate, from the beginning of time until the date of this
No modification, waiver, amendment, discharge or change of this Agreement
shall be valid unless the same is evinced by a written instrument, subscribed by
the Party against which such modification, waiver, amendment, discharge or
change is sought.
All notices, demands or other communications given hereunder shall be in
writing and shall be deemed to have been duly given on the first business day
after mailing by United States registered or unaudited mail, return receipt
requested, postage prepaid, addressed as follows:
To Equity Growth Systems:
902 Clint Moore Road, Suite 136; Boca Raton, Florida 33487
Attention: Charles J. Scimeca, Acting President.
To the Retiring Principal:
3821 B Tamiami Trail, Suite 201; Port Charlotte, Florida 33949
or such other address or to such other person as any Party shall designate to
the other for such purpose in the manner hereinafter set forth.
This instrument, together with the instruments referred to herein, contains
all of the understandings and agreements of the Parties with respect to the
subject matter discussed herein. All prior agreements whether written or oral
are merged herein and shall be of no force or effect.
The several representations, warranties and covenants of the Parties
contained herein shall survive the execution hereof and shall be effective
regardless of any investigation that may have been
made or may be made by or on behalf of any Party.
If any provision or any portion of any provision of this Agreement, other
than one of the conditions precedent or subsequent, or the application of such
provision or any portion thereof to any person or circumstance shall be held
invalid or unenforceable, the remaining portions of such provision and the
remaining provisions of this Agreement or the application of such provision or
portion of such provision as is held invalid or unenforceable to persons or
circumstances other than those to which it is held invalid or unenforceable,
shall not be affected thereby.
3.6 Governing Law.
This Agreement shall be construed in accordance with the laws of the State
of Florida and any proceedings pertaining directly or indirectly to the rights
or obligations of the Parties hereunder shall, to the extent legally permitted,
be held in Palm Beach County, Florida.
Each Party hereby irrevocably agrees to indemnify and hold the other Parties
harmless from any and all liabilities and damages (including legal or other
expenses incidental thereto), contingent, current, or inchoate to which they or
any one of them may become subject as a direct, indirect or incidental
consequence of any action by the indemnifying Party or as a consequence of the
failure of the indemnifying Party to act, whether pursuant to requirements of
this Agreement or otherwise; provided that, such claims are asserted by third
parties unrelated to the Parties. In the event it becomes necessary to enforce
this indemnity through an attorney, with or without litigation, the successful
Party shall be entitled to recover from the indemnifying Party, all costs
incurred including reasonable attorneys' fees throughout any negotiations,
trials or appeals, whether or not any suit is instituted.
In any action between the Parties to enforce any of the terms of this
Agreement or any other matter arising from this Agreement, the prevailing Party
shall be entitled to recover its costs and expenses, including reasonable
attorneys' fees up to and including all negotiations, trials and appeals,
whether or not litigation is initiated.
3.9 Benefit of Agreement.
The terms and provisions of this Agreement shall be binding upon and inure
to the benefit of the Parties, their successors, assigns, personal
representatives, estate, heirs and legatees.
The captions in this Agreement are for convenience and reference only and in
no way define, describe, extend or limit the scope of this Agreement or the
intent of any provisions hereof.
3.11 Number and Gender.
All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine, neuter, singular or plural, as the identity of the Party or
Parties, or their personal representatives, successors and assigns may require.
3.12 Further Assurances.
The Parties agree to do, execute, acknowledge and deliver or cause to be
done, executed, acknowledged or delivered and to perform all such acts and
deliver all such deeds, assignments, transfers, conveyances, powers of attorney,
assurances, stock certificates and other documents, as may, from time to time,
be required herein to effect the intent and purpose of this Agreement.
Nothing in this Agreement shall be construed or shall constitute a
partnership, joint venture, employer-employee relationship, lessor-lessee
relationship, or principal-agent relationship, rather, the relationships
established hereby are those of settling debtor and creditor.
(a) This Agreement may be executed in any number of counterparts.
(b) All executed counterparts shall constitute one Agreement notwithstanding
that all signatories are not signatories to the original or the same
(c) Execution by exchange of facsimile transmission shall be deemed legally
sufficient to bind the signatory; however, the Parties shall, for aesthetic
purposes, prepare a fully executed original version of this Agreement, which
shall be the document filed with the Securities and Exchange Commission.
(a) This Agreement is the property of the Yankee Companies, Inc, a Florida
(b) The use hereof by the Parties is authorized hereby solely for purposes of
this transaction and, the use of this form of agreement or of any derivation
thereof without Yankees' prior written permission is prohibited.
(c) The Parties hereby acknowledge that Yankees is not a law firm or regulated
entity and has not provided any Party with any advice concerning this
Agreement, rather, it has informed each Party, as a condition to their use
of this form that they must obtain independent legal advice.
* * *
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
effective as of the ____ day of December, 1998.
Signed, sealed and delivered
In Our Presence:
Equity Growth Systems, inc.
Charles J. Scimeca, Acting President
The Retiring Principal:
- --------------------------------- ---------------------------------
Edward Granville-Smith by Mark Granville-
Smith, his son and attorney-in-fact acting by
virtue of his power of attorney, a copy of
which is annexed hereto and made a part
hereof, immediately following this signature