IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA
Exhibit 10.1
IN THE UNITED STATES DISTRICT COURT
FOR
THE SOUTHERN DISTRICT OF CALIFORNIA
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NATURALSHRIMP, INC.
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Plaintiff
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vs.
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VISTA
CAPITAL INVESTMENTS, LLC
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And XXXXX
XXXXX
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Defendants
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___________________________
This Settlement Agreement and Release (the “Settlement
Agreement”) is entered into this
9th
day of April, 2020 by and between
NaturalShrimp, Inc. (“NaturalShrimp”) on the one hand
and Vista Capital Investments, LLC (“Vista”) and Xxxxx
Xxxxx, individually (“Xxxxx”) on the other hand. The
parties are referred to collectively herein as the
“Parties” and singularly, a
“Party.”
1.0
Definitions.
The following terms used herein shall have the meaning set out
opposite the term.
1.1
“Security Purchase Agreement” means
that certain security purchase agreement dated January 23, 2017 by
and between NaturalShrimp and Vista whereby Vista acquired a
promissory note and a five-year warrant.
1.2
“Convertible Note” means a promissory
note dated January 23, 2017 in the principal amount of $262,500.00
wherein NaturalShrimp is maker and Vista is
holder.
1.3
“Warrant” shall mean that certain
warrant dated January 23, 2017 authorizing sale to and purchase by
Vista of 70,000 shares of the common stock of
NaturalShrimp.
1.4
“Financing Transaction” means that
transaction represented by the Security Purchase Agreement and the
acquisition of the Convertible Note and the Warrant by Vista made
the basis of the Lawsuit.
1.5
“Lawsuit” means the above styled and
enumerated cause filed in San Diego County, California pending
before the U.S. District Court for the Southern District of
California.
1.6
“Closing”
shall mean the date that the Parties execute this Settlement
Agreement.
2.0
Recitals
2.1
This Lawsuit arises
out of the Financing Transaction and the exercise or attempted
exercise by Vista of Vista's alleged rights under the Warrant and
Convertible Note.
2.2
The
Parties have denied and contested the other Party’s
assertions and allegations.
2.3
Notwithstanding the foregoing, the Parties now
desire to compromise, resolve and settle, finally and forever, the
disputes, claims and causes of action that were asserted or could
have been asserted in the Lawsuit by each, one against the
other.
2.4
All money and other consideration of any
description passing hereunder is both less than the Party receiving
said consideration, and more than the Party yielding such
consideration believes is due. All Parties hereto agree that
neither the giving of any consideration hereunder nor its
acceptance shall operate as, or be evidence of, any admission,
either of liability for, or lack of merit in any claim hereby
released. The Parties also agree that by the execution of this
Settlement Agreement the Parties hereto do not admit to the
truthfulness of any of the claims or allegations made by the
opposing party; rather, such claims, allegations and liability have
been and are hereby expressly denied by each of the undersigned
Parties.
3.0
Settlement
Consideration:
3.1
For and in consideration of the mutual releases
and other consideration set forth in in this paragraph 3.0 and in
paragraph 5.0, below, the Parties, intending to be legally bound,
hereby agree as follows:
3.2
NaturalShrimp, subject to the conditions set forth
in this paragraph 3.2, agrees to pay or provide or cause to be
provided to Vista, the following:
(a)
Upon
Closing, NaturalShrimp will pay to Vista the sum of seventy-five
thousand and no/100 dollars ($75,000.00) by wire transfer or other
immediately available funds no later than one (1) business day
after the Closing;
(b)
At
or effective as of the Closing and subject to subparagraph 3.2(c),
3.2(d) and 3.2(e), NaturalShrimp will issue or cause to be issued
to Vista seventeen million, five hundred thousand (17,500,000)
unrestricted, freely trading common shares of NaturalShrimp
(the
18.
“Settlement
Shares”);
(c)
For
a period of time equal to ninety (90) days from the date of Closing
(the “BuyBack Period”), NaturalShrimp shall have the
right but not the obligation to purchase from Vista eight million
seven hundred fifty thousand (8,750,000) of the Settlement Shares
(the “Allotted Settlement Shares”) at Market Price
(defined below).
(d)
Vista will
not, during the Buy-Back Period, offer, pledge, sell, contract to
sell, grant, lend, or otherwise transfer or dispose of an amount of
shares equal to the Allotted Settlement Shares, directly or
indirectly, without the prior written consent of
NaturalShrimp.
(e)
Vista will
not, following the Closing, on any given trading day, offer,
pledge, sell, contract to sell, grant, lend, or otherwise transfer
or dispose of the Settlement Shares (not including the Allotted
Settlement Shares during the Buy-Back Period, which are subject to
sub-section (3.1(d)), directly or indirectly, in an amount greater
than twenty percent (20%) of the average daily trading volume of
the common stock on said given trading day, on the OTCQX, OTCQB, or
the OTC Pink marketplaces, NASDAQ Capital Markets, NYSE, or other
trading market on which the common stock is then trading. Vista
shall only offer, pledge, sell, contract to sell, grant, lend, or
otherwise transfer or dispose of the Settlement Shares in open
market transactions and shall not offer, pledge, sell, contract to
sell, grant, lend, or otherwise transfer or dispose of the
Settlement Shares in private transactions without the prior written
consent of NaturalShrimp. For the avoidance of doubt, following the
Buy-Back Period, the Allotted Settlement Shares shall also be
subject to the restrictions contained in this sub-section
3.1(e).
4.0
Buy-Back
procedure:
4.1
To
affect the re-purchase of the Allotted Settlement Shares,
NaturalShrimp will give written notice by electronic mail to Vista
of NaturalShrimp’s intention to re-purchase the Allotted
Settlement Shares along with NaturalShrimp’s determination of
the Market Price and aggregate purchase price. The sending of such
notice shall create an enforceable obligation upon NaturalShrimp to
consummate such a purchase.
4.2
Payment
for the shares shall be via wire transfer to Vista’s account
of the Aggregate Purchase Price, and shall be made three (3)
business days after transmitting the written notice. The shares
re-purchased hereunder shall transfer two (2) business days after
receipt of the payment for the shares purchased hereunder. The
transfer of the Allotted Settlement Shares will be affected through
brokers or other persons able to cause the transfer of the relevant
shares of the Parties’ choosing.
4.3
“Market Price” shall be the greater of
(a) the volume weighted average trading price
(“VWAP”)
of the common shares over the five (5) preceding trading days prior
to the date of the delivery by electronic mail of the written
notice of the re-purchase, and (b) $0.02 per
share.
“Aggregate
Purchase Price” as used in this Section 4 shall mean the
Allotted Settlement Shares multiplied by the Market
Price.
4.4
The
right of NaturalShrimp to re-purchase the Allotted Settlement
Shares shall expire on the earlier to occur of (a) the lapsing of
ninety (90) calendar days from the date of Closing; (b) the failure
of NaturalShrimp to timely tender payment to Vista after providing
notice of NaturalShrimp’s intention to re-purchase Allotted
Settlement Shares; or (c) Natural Shrimp ceases to be a reporting
company under the Securities Exchange Act of 1934 .
5.0
5.0 Joint and Mutual Release
5.1
Except for the affirmative obligations set forth
herein, NaturalShimp, on behalf of itself and its respective direct
or indirect predecessors, successors, parent companies, divisions,
subsidiaries, agents, affiliates, subrogees, insurers, trustees,
trusts, administrators, representatives, personal representatives,
legal representatives, transferees, assigns and successors in
interest of assigns, and any firm, trust, corporation, partnership,
investment vehicle, fund or other entity managed or controlled by
NaturalShrimp or in which NaturalShrimp has or had a controlling
interest and the respective consultants, employees, legal counsel,
officers, directors, managers, shareholders, stockholders, owners
of any of the foregoing, agrees to and does hereby release, acquit
and forever discharge Vista and Xxxxx, their representatives,
successors, subsidiaries and affiliates and all present and former
officers, directors, partners, principals, employees, attorneys,
insureds, agents and assigns (the “Vista Released
Parties”), from any and
all claims, demands, suits (including, but not limited to, the
Lawsuit), debts, promises, damages, judgments, executions,
guaranties or warranties whatsoever in law or in equity, actions
and causes of action of whatever kind and character whether in
contract or in tort, known or unknown and arising out of or having
to do with the Securities Purchase Agreement, the Convertible Note,
the Warrant and/or the
Financing
Transaction, the claims, causes of action or allegations described
in NaturalShrimp’s pleadings in this matter or any actions or
conduct of Vista and Xxxxx prior to the date of this Agreement. It
is the intention of NaturalShrimp that this release shall fully and
completely release Vista and Xxxxx. The releases contained in this
Agreement shall not operate to release obligations under this
Agreement.
5.2
Except for the affirmative obligations set forth
herein, Vista and Xxxxx, on behalf of themselves and their
respective direct or indirect predecessors, successors, parent
companies, divisions, subsidiaries, agents, affiliates, subrogees,
insurers, trustees, trusts, administrators, representatives,
personal representatives, legal representatives, transferees,
assigns and successors in interest of assigns, and any firm, trust,
corporation, partnership, investment vehicle, fund or other entity
managed or controlled by Vista and Xxxxx or in which Vista and
Xxxxx has or had a controlling interest and the respective
consultants, employees, legal counsel, officers, directors,
managers, shareholders, stockholders, owners of any of the
foregoing, agree to and do hereby release, acquit and forever
discharge NaturalShrimp, its representatives, successors,
subsidiaries and affiliates and all present and former officers,
directors, partners, principals, employees, attorneys, insureds,
agents and assigns (the “NaturalShrimp Released
Parties”), from any and
all claims, demands, suits (including, but not limited to, the
Lawsuit), debts, promises, damages, judgments, executions,
guaranties or warranties whatsoever in law or in equity, actions
and causes of action of whatever kind and character whether in
contract or in tort, known or unknown and presently existing,
arising out of or having to do with the Securities Purchase
Agreement, the Convertible Note, the Warrant and/or the Financing
Transaction, the claims, causes of action or allegations described
in the pleadings of Vista and/or Xxxxx in this matter or any
actions or conduct of NaturalShrimp prior to the date of this
Agreement. It is the intention of Vista and Xxxxx that this release
shall fully and completely release NaturalShrimp. The releases
contained in this
Agreement
shall not operate to release obligations under this
Agreement.
5.3
For
the avoidance of doubt, it is specifically, understood and agreed
that the Securities Purchase Agreement, the Convertible Note and
the Warrant are hereby cancelled and are of no further force or
effect and shall be as if same had never been prepared, signed or
existed. All obligations and rights contained therein or associated
with the Financing Transaction are terminated.
5.4
The
releases in Section 5.2 shall not be effective until the delivery
of the Shares promised under Section 3.
6.
Dismissal of
Litigation. On or before the
expiration of fifteen (15) days from the date of the Closing, the
Parties will file or cause their attorneys to file agreed orders of
dismissal in the Lawsuit dismissing with prejudice all actions and
counterclaims filed therein and deliver evidence of same to the
other Party. The Parties covenant and agree not to commence or
prosecute any action or proceeding against the other Party based on
any claims released by the Parties pursuant
hereto.
7.0
Miscellaneous
7.1
Entire
Agreement. This Agreement
constitutes the entire understanding and agreement of the parties
hereto, and supersedes prior understandings and agreements, if any,
among such Parties with respect to the subject matter. There are no
representations, agreements, arrangements or understandings, oral
or written, concerning the subject matter of this Agreement between
and among the Parties hereto, which are not fully expressed or
incorporated by reference herein. The Parties hereto have consulted
with their respective attorneys concerning the meaning and import
of this Agreement, and each has read this Agreement, as signified
by the signatures hereto.
7.2
Binding
Effect: This Agreement and its
terms, covenants, conditions, provisions, obligations,
undertakings, rights and benefits, shall be binding upon, and shall
inure to the benefit of, the undersigned Parties and their
respective heirs, executors, administrators, representatives,
officers, directors, shareholders, successors, agents, servants,
employees, principals, partners, limited and general, and
assigns.
7.3
No
Assignment: The Parties
represent and warrant that they have not sold or assigned any part
of their claims against each other to any other party, person, or
entity and that they are fully authorized to execute this
Agreement.
7.4
Counterparts:
This Agreement may be executed in counterparts by the undersigned
and all such counterparts so executed shall together be deemed to
constitute one final agreement, as if one document had been signed
by all parties hereto; and each such counterpart shall be deemed to
be an original, binding the party subscribed thereto, and multiple
signature pages affixed to a single copy of this Agreement shall be
deemed to be a fully executed original
Agreement.
7.5
Waiver:
Any failure or forbearance by any Party hereto to exercise any
right or remedy with respect to enforcement of this Agreement or
any instrument executed in connection herewith shall not be
construed as a waiver of any of such Party's rights or remedies,
nor shall such failure or forbearance operate to modify this
Agreement or such instruments in the absence of a writing as
provided above.
7.6
Amendment.
This Agreement may not be modified except by a written instrument
signed by the same Parties or their legal
representatives.
Dated as of the 9th
day of April, 2020 but effective as of
the date first set forth above.
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VISTA
CAPITAL INVESTMENTS, LLC
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Date: April 13,
2020
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By:
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/s/ Xxxxx
Xxxxx
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Xxxxx
Xxxxx
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President
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/s/ Xxxxx
Xxxxx
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Individually
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NATURALSHRIMP,
INC.
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Date: April 13,
2020
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By:
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/s/ Xxxxxx
Xxxxxxxxxx
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Xxxxxx
Xxxxxxxxxx
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President
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