SETTLEMENT AGREEMENT AND GENERAL RELEASE
SETTLEMENT
AGREEMENT AND GENERAL RELEASE
THIS
SETTLEMENT AGREEMENT AND GENERAL RELEASE ("Agreement")
is made as of the 27th day
of
February, 2006 by and among Americana Distribution,
Inc. (the "Company") and Xxxxxxxxxx Capital Partners ("Xxxxxxxxxx"),
on the
one hand (collectively, the "ADEN Parties"), and Xxxxxxx Xxxxx, Xxxxx
Xxxxxxxxxx, Xxxxxx Xxxxx, Xxxxx Xxxxxxxxx, Xxxx Xxxxx, RP Capital LLC, and
Xxxxxxxxxx
& Xxxxx LLP (collectively, the "RP Parties") on the other hand, all of
whom
may
hereafter be referred to as the "Parties."
A. The
RP
Parties claim the Company owes the following amounts for loans
made to
the Company, including interest through March 31, 2006:
|
Xxxxxxx
Xxxxx
|
$29,731.94
|
|
Xxxxxx
Xxxxx
|
$6,143.06
|
|
Xxxxx
Xxxxxxxxxx
|
$41,730.56
|
|
Xxxx
Xxxxx
|
$11,794.44
|
|
RP
Capital LLC
|
$70,750.00
|
|
Xxxxx
Xxxxxxxxx
|
$14,722.22
|
|
Xxxxxxxxxx
& Xxxxx LLP
|
$27,276.10
|
(the
"Convertible Debt").
X. Xxxxxxxxxx
& Xxxxx
LLP claims
the
Company owes it an additional $135,029
for unpaid legal fees and costs advanced
(the "Legal Fees").
C. The
Convertible Debt has certain conversion rights into common stock of the
Company based on the lowest 30 day average closing price of the
stock.
D. Whereas,in
connection with the
Convertible Debt,
the
RP Parties have received
warrants to purchase shares of common stock of the Company at various
prices (the
"Warrants").
E, Whereas,
certain of the RP Parties have rendered legal services to the Company in the
past.
The
parties wish to compromise and forever settle all
claims related to the
foregoing
matters pursuant to the terms of this Agreement.
NOW,
THEREFORE, for good and valuable consideration, the
receipt of which is hereby
acknowledged, and in consideration of the
mutual
promises, covenants and conditions
herein contained, the Parties agree as
follows:
1. Cash
Payment Promptly
following full execution hereof, and in any event no later than March 31, 2006,
the
ADF3N
Parties
shall cause checks to be delivered to the RP Parties representing a cash payment
of
7.5%. The checks
shall all be delivered to Attn: Xxxxxxx Xxxxx, Xxxxxxxxxx & Xxxxx LLP, 00000
Xxxxxxxx Xxxx., Xxxxx 000, Xxx Xxxxxxx, XX 00000, The checks shall be issued
to
the following persons or entities and in the following amounts:
|
Xxxxxxx
Xxxxx
|
$2,229.90
|
|
Nil»ish
Patef
|
$460.73
|
|
Xxxxx
Xxxxxxxxxx
|
53,129.79
|
|
Xxxx
Xxxxx
|
$884.58
|
|
RP
Capital LLC
|
$5,306.25
|
|
Xxxxx
Xxxxxxxxx
|
$1,104.17
|
|
Xxxxxxxxxx
& Xxxxx LLP
|
$12,172.88
|
|
TOTAL
|
$25,288.30
|
2. Stock
Payment.
The ADBN
Parties shall cause shares of common stock of the Company to be issued to
the
RP
Parties
equal
to
an aggregate of 5% of the restructured Company
(after
taking into account
any stock split,
reverse stock split, stock dividend, conversion of outstanding debt into stock,
payment of
liabilities
with stock in lieu
of cash, and exercise of any
outstanding options, warrants, or other convertible securities and
agreements for the issuance
of additional shares of stock). Certificates shag
be
issued to the RP Parties in pro-rata amounts based upon the above referenced
cash
payments, and
shall
be delivered no later than March 31, 2006 to Am: Xxxxxxx Xxxxx, Xxxxxxxxxx
&
Xxxxx LLP, 00000 Xxxxxxxx Xxxx.,
Xxxxx
000, Xxx Xxxxxxx, XX 00000.
2. Mutual
Release. Except
fur
the
rights and obligations of the Pathos arising from this Agreement, the ADBH
Parties, on the one hand, and the RP Parties, on the other hand, hereby, for
themselves, their employees, agents, partners, members, representatives,
successors and assigns, discharge and release one another, their past and
present employees, agents,
executors, administrators, trustees, heirs, spouses, attorneys,
partners,
insurers, representatives, assigns, predecessors, successors and related
entities (the 'Released Parties"), from any and all claims, damages, actions,
judgments, obligations, attorneys' fees, indemnities, subrogations,duties,
demands, controversies and liabilities of every nature at law or in equity,
liquidated, or unliquidated, known or unknown, matured or unniatured,
foreseeable or unforeseeable, which they had or have arising out of any
circumstance, thing,or
event
alleged, or arising out of the matters set forth in the Recitals, above. This
Release includes, by way of clarification and not limitation, any obligation
of
the Company to repay the Convertible Now or the Legal pees,
or
to issue shares upon a conversion of the Convertible Notes or art exercise
of
the Warrants.
3. Waiver
of Unknown Claims.
It is
understood and agreed that the Parties` releases
set forth hereinabove extend to all claims of every kind, nature and description
whatsoever, known or unknown, suspected or unsuspected and any and all rights
under the
provisions of Section 1542 of the Civil Code of California or under any
comparable statute of any other jurisdiction. The Parties expressly acknowledge
that they are familiar with
and expressly waive and relinquish every right or
benefit they have or may have under the provisions of Section 1542 of the Civil
Code of California which reads as follows:
"A
general release does not extend to claims which the creditor does not know
or
suspect 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."
4. Entire
Agreement.
This
Agreement contains the sole, complete and entire agreement
and understanding of the Parties concerning the matters contained herein and
may
not
be altered, modified, or changed in any xxxxxx except by a writing duly executed
by
the
Parties. No
Parry
isrelying
on any
representationsother
than those expressly set forth herein. No conditions precedent to the
effectiveness of
this Agreement exists, other
than as expressly provided for herein. There are no oral or written collateral
agreements All priordiscussions
and negotiations have been and are merged,integrated
into and superseded by this Agreement.
5. Waiver.
The
delay or failure of a Parry to exercise any right, power or privilege
hereunder, or failure to strictly enforce any breach or default shall not
constitute a
waiver
with respect thereto and
no waiver of any such right, power, privelige, breach
or
default
on any one occasion shall constitute a waiver thereof on subsequent occasion
unless clear and express notice
thereofin
writing is provided.
6. Attorneys'
fees
Upon Breach.
If any
action at law or in equity, or any motion,
is brought to enforce
this Agreement,
the prevailing
Party shall be entitled
to all of
its
costs in bringing and prosecuting said action or motion, including reasonable
attorneys'
fees.
7. Applicable
Law.
This
Agreement shall be construed according to the laws of the State of California
in
effect as of the date of execution.
8. Advice
of Counsel.
The
Parties represent that prior to the execution of this Agreement they had the
opportunity to seek the benefit of independent legal counsel of their own
selection regarding the
substance
of
this
Agreement. It is expressly understood and acknowledged that Xxxxxxxxxx &
Xxxxx LLP does not represent any Party to this Agreement
9. Costs.
The
Parties to this Agreement agree to bear their own costs
and
attorneys' fees in conneotion with this matter.
10. No
Liability. This
Agreement is executed by the Parties hereto for
the
sole
purpose of settling the matters involved in the dispute, and it is expressly
understood and agreed, as a
condition
hereof; that this Agreement should not constitute nor be construed to be an
admission of the truth or correctness of any claim asserted,
11. Warranties.
The
Parties, and each of them, warrant: (i) that no other person or entity had
or
has or claims, any interest in any of
the
claims, demands, causes of action, or damages covered in this Agreement; (ii)
that they, and each of them, have the sole right and exclusive authority to
execute this Agreement; and (iii) that they have not sold, assigned,
transferred, conveyed or otherwise disposed of
any claim,
demand, cause of action, obligation, damage or liability covered in this
Agreement.
12. Representation
of Authority. Each
individual executing this Agreement on behalf
of
any
Partyexpressly
represents
andwarrants thathe/she
has authorityto
execute
and
thereby bind the Xxxxx on behalf of which he/she executes this Agreement to
the
terms of this Agreement and agrees to indemnify and hold harmless each other
party from any claim that
such
authority did
not
exist.
13. Headings.
The
headings included in this Agreement are for convenience only and do not limit,
alter, or affect the matters contained in this Agreement
or the
paragraphs
they encaption.
14. Counterparts.
This
Agreement may be executed in one or more
counterparts, all of which together constitute one single document.
15. Telefascimile Signatures. This
Agreement and anydocuments
relating to
it may
be executed and transmitted to any other party by telefacsimile, which
telefacsimIle
shall be
deemed
to be, and utilized in all respects as, an original, wet inked
document.
AMERICANA
DISTRIBUTION, INC.
By:
/s/
Xxxxx Xxxxxxxxx Date:
3/16/06
Xxxxx
Xxxxxxxxx, CEO
XXXXXXXXXX
CAPITAL PARTNERS
By:
/s/ Date: 3/9/06
Name:
Title:
XXXXXXXXXX
& P'ATEL LLP
By:
/s/
Xxxxx Xxxxxxxxxx Date:
3/7/06
Xxxxx
Xxxxxxxxxx, Partner
RP
CAPI'T'AL LLC
By:
/s/
Xxxxx Xxxxxxxxxx Date:
3/7/06
Xxxxx Xxxxxxxxxx, President
By:
/s/
Xxxxx Xxxxxxxxxx Date:
3/7/06
Xxxxx Xxxxxxxxxx
By:
/s/
Xxxxxxx Xxxxx Date:
3/7/06
Xxxxxxx Xxxxx
By:
/s/
Xxxxxx Xxxxx
Date:
3/7/06
Xxxxxx Xxxxx
By:
/s/
Xxxxx Xxxxxxxxx
Date:
3/7/06
Xxxxx Xxxxxxxxx
By:
/s/
Xxxx Xxxxx Date:
3/7/06
Xxxx
Xxxxx