SETTLEMENT AGREEMENT AND RELEASE
Exhibit 10.1
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release (this “Agreement”) is entered into effective as of September 30,
2016, by and between (a) Xxxxxxx Xxxxxxxx and Xxxxxxxx Xxxxxxxx (“Creditors”) and (b) Arvana Inc.
(“Arvana”). Collectively, Creditors and Arvana shall be referred to as the “Parties”.
BACKGROUND
WHEREAS, Arvana and Creditors entered into a loan agreement dated April 7, 2008, pursuant to which
Creditors are entitled to the repayment of an aggregate amount due of seventy four thousand four hundred
and fifty U.S. dollars ($74,450), which amount includes accrued interest of twenty four thousand four
hundred and fifty U.S. dollars ($24,450) as of September 30, 2016 (the “Debt”).
WHEREAS, Arvana and Creditors desire and agree to provide for the payment of the above-stated
indebtedness in accordance with terms and provisions different from, and in substitution of, the
terms and obligations of the Debt as described above.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, and intending to be legally bound hereby, Creditors and Arvana hereby
agree as follows:
AGREED TERMS AND CONDITIONS
1. Settlement of Debt. Arvana will issue to Creditors one hundred and forty eight thousand nine hundred
(148,900) shares of its restricted common stock (the “Settlement Shares”) as provided herein valued for
the purposes of this Agreement at fifty U.S. cents ($0.50) per share in full and complete satisfaction of the
Debt.
2. Closing. The Settlement Shares shall be issued to Creditors not later than four (4) business days after the
execution of this Agreement and delivered to Creditors not later than ten (10) business days thereafter.
3. Securities Act Exemption. The Parties are executing and delivering this Agreement in reliance upon
exemptions from securities registration from the rules and regulations as promulgated by the U.S. Securities
and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the
“Securities Act”).
4. Investment Representations of Creditors. Creditors represent and warrant that:
a. Investment Purpose. Creditors are acquiring the Settlement Shares for their own account and not with a
present view towards the public sale or distribution thereof, except pursuant to sales registered or exempted
from registration under the Securities Act.
b. Accredited Investor Status. Each of the Creditors is an “accredited investor” as that term is defined in
Rule 501(a) of Regulation D of the Securities Act (an “Accredited Investor”).
c. Non-United States Residency Status. Neither of the Creditors is a “U.S. person” as that term is defined
in Rule 902 of Regulation S of the Securities Act, nor is either Creditor acquiring the Settlement Shares for
the account or benefit of any U.S. person.
d. Availability of Exemptions in the Country of Residence. The Creditors certify to Arvana that Creditors
are utilizing an exemption applicable to the nation in which Creditors are resident to enter into this
Agreement, as required under national and local securities laws, reflected by hand-writing each of the
Creditors initials on the following lines: JL VL.
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Exhibit 10.1
e. Reliance on Exemptions. Creditors understand that the Settlement Shares are being offered and sold to
them in reliance upon specific exemptions from the registration requirements of U.S. federal securities laws
and that Arvana is relying upon the truth and accuracy of, and Creditors compliance with, the
representations, warranties, agreements, acknowledgments and understandings of Creditors set forth herein
in order to determine the availability of such exemptions and the eligibility of Creditors to acquire the
Settlement Shares.
f. Transfer or Re-sale. Creditors understand that except as provided herein, the sale or re-sale of the
Settlement Shares has not been and is not being registered under the Securities Act, and the Settlement
Shares may not be transferred unless the Settlement Shares are sold pursuant to an effective registration
statement under the Securities Act or an exemption from registration.
g. Legends. Creditors understand that the Settlement Shares will bear a restrictive legend in substantially
the following form (and a stop-transfer order may be placed against transfer of the certificates for such
Settlement Shares):
“The securities represented by this certificate have not been registered under the Securities Act of
1933, as amended. The securities may not be sold, transferred or assigned in the absence of an
effective registration statement for the securities under said Act, or an opinion of counsel, in form,
substance and scope customary for opinions of counsel in comparable transactions, that registration
is not required under said Act or unless sold pursuant to Rule 144 or Regulation S under said Act.”
h. Authorization; Enforcement. Creditors (i) have the requisite authority to enter into and to perform this
Agreement, and to consummate the transactions contemplated hereby in accordance with the terms hereof,
(ii) the execution and delivery of this Agreement has been duly executed and delivered by Creditors and no
further consent or authorization is required; and (iii) this Agreement constitutes a legal, valid and binding
obligation of Creditors enforceable against Creditors in accordance with its terms, except to the extent that
enforceability may be limited by bankruptcy, insolvency or similar laws affecting creditors’ rights generally
or by general principles of equity.
i. Residency. Creditors are residents of the United Kingdom.
5. Representations and Warranties of Arvana. Arvana represents to Creditors, that (i) Arvana has all
requisite corporate power and authority to enter into and perform this Agreement, and to consummate the
transactions contemplated hereby and thereby and, to issue the Settlement Shares, in accordance with the
terms hereof; (ii) the execution and delivery of this Agreement and the consummation by it of the
transactions contemplated hereby have been duly authorized by Arvana’s Board of Directors; (iii) this
Agreement has been duly executed and delivered by Arvana through its authorized representative, and such
authorized representative has the authority to sign this Agreement; and (iv) this Agreement constitutes a
legal, valid and binding obligation of Arvana enforceable against Arvana in accordance with its terms,
except to the extent that enforceability may be limited by bankruptcy, insolvency or similar laws affecting
creditors’ rights generally or by general principles of equity.
6. No Outstanding or Known Future Claims/Causes of Action. Each Party affirms that it has not filed with
any governmental agency or court any type of action or report against the other Party, and currently knows
of no existing act or omission by the other Party that may constitute a claim or liability excluded from the
release in section 10 below.
7. Acknowledgment of Settlement. The Parties, as described in section 10 below, acknowledge that (i) the
consideration set forth in this Agreement, which includes, but is not limited to, the Settlement Shares, is in
full settlement of all claims or losses of whatsoever kind or character that they have, or may ever have had,
against the other Party, including by reason of the Debt and (ii) by signing this Agreement, and accepting
the consideration provided herein and the benefits of it, they are giving up forever any right to seek further
monetary or other relief from the other Party, for any acts or omissions up to and including the date of this
Agreement as set forth in section 10, including, without limitation, the Debt.
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Exhibit 10.1
8. Legal Fees. The Parties acknowledge and agree that they are solely responsible for paying any attorneys’
fees and costs they incurred and that neither Party nor its attorney(s) will seek any award of attorneys’ fees
or costs from the other Party, except as provided herein.
9. Taxes. Creditors shall be solely responsible for, and is legally bound to make payment of, any taxes
determined to be due and owing (including penalties and interest related thereto) by it to any federal, state,
local, or regional taxing authority as a result of the Settlement Shares. Creditors understand that Arvana has
not made, and it does not rely upon, any representations regarding the tax treatment of the Settlement Shares
paid pursuant to this Agreement. Moreover, Creditors agrees to indemnify and hold Arvana harmless in the
event that any governmental taxing authority asserts against Arvana any claim for unpaid taxes, failure to
withhold taxes, penalties, or interest based upon the payment of the Settlement Shares.
10. Mutual Release. The Parties, on behalf of themselves, their predecessors, successors, direct and indirect
parent companies, direct and indirect subsidiary companies, companies under common control with any of
the foregoing, affiliates and assigns, and its and their past, present, and future officers, directors,
shareholders, interest holders, members, partners, attorneys, agents, employees, managers, representatives,
assigns, and successors in interest, and all persons acting by, through, under, or in concert with them, and
each of them, hereby release and discharge the other Party, together with their predecessors, successors,
direct and indirect parent companies, direct and indirect subsidiary companies, companies under common
control with any of the foregoing, affiliates and assigns and its and their past, present, and future officers,
directors, shareholders, interest holders, members, partners, attorneys, agents, employees, managers,
representatives, assigns and successors in interest, and all persons acting by, through, under or in concert
with them, and each of them, from all known and unknown charges, complaints, claims, grievances,
liabilities, obligations, promises, agreements, controversies, damages, actions, causes of action, suits,
rights, demands, costs, losses, debts, penalties, fees, wages, medical costs, pain and suffering, mental
anguish, emotional distress, expenses (including attorneys’ fees and costs actually incurred), and punitive
damages, of any nature whatsoever, known or unknown, which either Party has, or may have had, against
the other Party, whether or not apparent or yet to be discovered, or which may hereafter develop, for any
acts or omissions related to or arising from the Debt.
This Agreement resolves any claim for relief that could have been alleged, no matter how characterized,
including, without limitation, compensatory damages, damages for breach of contract, bad faith damages,
reliance damages, liquidated damages, damages for humiliation and embarrassment, punitive damages,
costs and attorneys fees related to or arising from the Debt.
11. Entire Agreement. The recitals set forth at the beginning of this Agreement are incorporated by reference
and made a part of this Agreement. This Agreement constitutes the entire agreement and understanding of
the Parties and supersedes all prior negotiations and/or agreements, proposed or otherwise, written or oral,
concerning the subject matter hereof. Furthermore, no modification of this Agreement shall be binding
unless in writing and signed by each of the parties hereto.
12. New or Different Facts: No Effect. Except as provided herein, this Agreement shall be, and remain, in
effect despite any alleged breach of this Agreement or the discovery or existence of any new or additional
fact, or any fact different from that which either Party now knows or believes to be true. Notwithstanding
the foregoing, nothing in this Agreement shall be construed as, or constitute, a release of any Party’s rights
to enforce the terms of this Agreement.
13. Interpretation. Should any provision of this Agreement be declared or be determined by any court to be
illegal or invalid, the validity of the remaining parts, terms or provisions shall not be affected thereby and
said illegal or invalid part, term or provision shall be deemed not to be a part of this Agreement. The
headings within this Agreement are purely for convenience and are not to be used as an aid in interpretation.
Moreover, this Agreement shall not be construed against either Party as the author or drafter of the
Agreement.
14. Counterparts. This Agreement may be executed by the Parties in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same instrument.
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Exhibit 10.1
15. Notices. All notices required or permitted to be given under this Agreement will be in writing and will
be deemed given (i) when delivered in person, (ii) seven (7) business days after being deposited in the
United States mail, postage prepaid, registered or certified mail addressed as set forth below, (iii) on the 2nd
business day after being deposited with a nationally recognized overnight courier service addressed as set
forth below or (iv) upon dispatch if sent by facsimile with telephonic confirmation of receipt from the
intended recipient to the facsimile number set forth below:
Xxxxxxx and Xxxxxxxx Xxxxxxxx
Xxx Xxxxx Xxxxx
Xxx Xxxxx
Xxxxxxxxxxxxx
Xxxxxxxxxxxxxx
Xxxxxx Xxxxxxx WR1 27HJ
Arvana, Inc.
000 Xxxxx Xxxx Xxxxxx, 00xx Xxxxx
Xxxx Xxxx Xxxx
Xxxx 00000
Xxxxxx Xxxxxx of America
16. Governing Law and Venue. This Agreement shall be deemed to be a contract made under the laws of
the State of Utah and for all purposes it and any related or supplemental documents and notices, shall be
construed in accordance with and governed by the laws of such state. In respect of any action or claim
arising out of or relating to this Agreement (x) the parties hereby irrevocably submit to the jurisdiction of
the United States District Court for the District of Utah (Salt Lake City) and/or in the Utah state courts
located within Salt Lake County, Utah, over any action or proceeding arising out of or related to this
Agreement and the documents related hereto or executed in connection herewith, (y) the Parties hereby
irrevocably agree that all claims in respect of such actions or proceedings may be heard and determined in
the courts referenced in the foregoing clause (x), and (z) the Parties hereto hereby irrevocably waive, to the
fullest extent they may effectively do so, the defense of an inconvenient forum to the maintenance of such
action or proceeding in Utah.
17. Reliance on Own Counsel. In entering into this Agreement, the Parties acknowledge that they have
relied upon the legal advice of their respective attorneys, who are the attorneys of their own choosing, that
such terms are fully understood and voluntarily accepted by them, and that, other than the consideration set
forth herein, no promises or representations of any kind have been made to them by the other Party. The
Parties represent and acknowledge that in executing this Agreement they did not rely, and have not relied,
upon any representation or statement, whether oral or written, made by the other Party or by that other
Party’s agents, representatives or attorneys with regard to the subject matter, basis or effect of this
Agreement or otherwise.
READ THE FOREGOING DOCUMENT CAREFULLY. IT INCLUDES A RELEASE OF
KNOWN AND UNKNOWN CLAIMS.
IN WITNESS WHEREOF, and intending to be legally bound, each of the Parties hereto has caused this
Agreement to be executed as of the date(s) set forth below.
Arvana, Inc.
Creditors
/s/ Xxxxxxxx Xxxxxxxx
/s/ Xxxxxxx Xxxxxxxx
By: Xxxxxxxx Xxxxxxxx
Xxxxxxx Xxxxxxxx
Its: Chief Executive Officer
Dated: October 25, 2016
/s/ Xxxxxxxx Xxxxxxxx
Xxxxxxxx Xxxxxxxx
Dated: October 20, 2016
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