SETTLEMENT AGREEMENT
EXHIBIT
10.4
THIS
SETTLEMENT is made this 7th day of December 2007, by and between King of Energy
West (“KOEW”), and Who’s Your Daddy, Inc. (“Company”). Collectively,
KOEW and the Company are considered to be “Parties” to this
agreement.
RECITALS
WHEREAS, KOEW is owed a total
amount of $408,000;
WHEREAS, KOEW has $402,358 of
the Company’s energy drinks that the Company wishes to purchase from KOEW;
and
WHEREAS, the Company wishes to
settle this claim and make this purchase through the issuance of
stock.
NOW, THEREFORE, in
consideration of the mutual covenants and agreements contained herein, and for
other good and valuable consideration, the adequacy of which is acknowledged by
the parties hereto, and intending to be legally bound, the parties agree as
follows:
SETTLEMENT
1. Settlement and
Purchase.
The Company will issue 449,725
restricted shares of its Par Value $0.001 Common Stock to KOEW (“Shares”) to
settle the amount owed to KOEW, which both Parties agree have a value at the
time of issuance equal to the amount owed by the Company to the KOEW and will be
full and final settlement and payment of any and all amounts owed by the Company
to the KOEW as of the date hereof. The Company will issue 443,505
Shares to purchase the energy drinks from KOEW, which both Parties agree have a
value at time of issuance equal to the inventory being purchased by the
Company.
2. General Release by the
Parties of All Known and Unknown Claims.
The Parties hereto do hereby jointly
and severally irrevocably and unconditionally release and forever discharge each
other, their agents, directors, officers, employees, business partners,
representatives, attorneys, insurers, affiliates/subsidiaries, parent
corporations, sister corporations, (and agents, directors, officers, employees,
representatives, attorneys of such affiliates/subsidiaries parent corporations,
sister corporations), and their predecessors, successors, heirs, executors,
administrators, and assigns, and all persons and entities acting by, through,
under or in concert with any of them (hereinafter collectively the "Releasees"),
or any of them, from any of all actions, causes of action, suits, debts,
charges, complaints, claims, liabilities, obligations, promises, agreements,
controversies, damages and expenses (including attorneys' fees and costs
actually incurred), of any nature whatsoever, in law or equity, known or
unknown, suspected or unsuspected, which either party ever had, now has, or may
now have against each other by reason of any act, event, or omission concerning
any matter or thing, including, without limiting the generality of the
foregoing, the $408,000 owed by the Company to the
KOEW. Notwithstanding anything herein set forth to the contrary, no
provision of this Agreement shall constitute or be construed as a release or
discharge of any obligations, claims or causes of action hereafter arising out
of the breach of any of the terms, provisions or conditions of this
Agreement. As part of this settlement and purchase, KOEW will receive
a five-year warrant to purchase 250,000 Shares at $0.75 per Share.
3. KOEW
Representations.
A) KOEW
is experienced in evaluating companies such as the Company, is able to fend for
itself in transactions such as the one contemplated by this Agreement, has such
knowledge and experience in financial and business matters that such KOEW is
capable of evaluating the merits and risks of KOEW’s prospective investment in
the Company, and has the ability to bear the economic risks of the
investment.
B) KOEW
is accepting the Shares for such KOEW’s own account and not with the view to, or
for resale in connection with, any distribution thereof. KOEW
understands that the Shares have not been registered under the Securities Act by
reason of a specific exemption from the registration provisions of the
Securities Act which depends upon, among other things, the bona fide nature of
the investment intent as expressed herein. KOEW further represents that it does
not have any contract, undertaking, agreement or arrangement with any person to
sell, transfer or grant participation to any third person with respect to any of
the Shares. KOEW understands and acknowledges that the offering of
the Shares pursuant to this Agreement will not be registered under the
Securities Act on the ground that the sale provided for in this Agreement and
the issuance of securities hereunder is exempt from the registration
requirements of the Securities Act.
C) Accredited
Investor. KOEW acknowledges that it is an “Accredited Investor” as
defined in Rule 501 of Regulation D as promulgated by the Securities and
Exchange and available on the internet at xxx.xxx.xxx.
D) Certificate
Legend. KOEW acknowledges that the Shares shall contain a legend
substantially as follows: “THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE “SECURITIES ACT”) OR UNDER APPLICABLE STATE
SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS
REGISTERED UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR
PURSUANT TO AVAILABLE EXEMPTIONS FROM SUCH REGISTRATION, PROVIDED THAT THE
SELLER DELIVERS TO THE COMPANY AN OPINION OF COUNSEL (WHICH OPINION IS
REASONABLY SATISFACTORY TO THE COMPANY) CONFIRMING THE AVAILABILITY OF SUCH
EXEMPTION. THE FOREGOING RESTRICTIONS EXPIRE WITHOUT FURTHER ACTION TWO YEARS
FROM THE DATE OF ORIGINAL ISSUANCE OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE.” To the best of the Company’s knowledge these shares
will be eligible for sales under Rule 144 as may then be in effect.
4. Confidentiality.
The Parties to this Agreement and its
attorneys agree to keep confidential the identity of the parties to this
Agreement and the amount paid under this Agreement, and not to publicize,
advertise, communicate, or otherwise disclose voluntarily to the media, members
of the public, and/or any legal publication, the identity of parties and the
amounts paid under this Agreement. It is understood and agreed that
this Agreement of confidentiality is important and valuable consideration for
the above-stated payment.
5. No Assignment/No Actions
Filed.
KOEW represents and warrants that he
has made no assignment, and will make no assignment, of any claim, chose in
action, right of action, or any right of any kind whatsoever, embodied in any of
the claims and allegations which are being released, as set forth herein, and
that no other person or entity of any kind had or has any interest in any of the
claims, demands, obligations, actions, causes of actions, debts, liabilities,
rights, contracts, damages, attorneys' fees, costs, expenses, losses, or claims
referred to herein.
6. Assumption of Risk of
Different Facts.
The Parties acknowledge that they may
hereafter discover facts different from or in addition to those they now know or
believe to be true with respect to the claims, demands, causes of action,
obligations, damages, and liabilities of any nature whatsoever that are the
subject of this Agreement, and the parties expressly agree to assume the risk of
the possible discovery of additional or different facts, and agree that this
Agreement shall be and remain effective in all respects regardless of such
additional or different facts.
7. Governing
Law.
This Agreement and its terms and
provisions shall be interpreted, enforced and governed by and under the laws of
the State of California.
8. Severability.
If any portion of this Agreement shall
be held invalid or inoperative, insofar as reasonable and possible, the
remainder of this Agreement shall be considered valid and operative and effect
shall be given to the intent manifested by the portion held invalid or
inoperative, and the parties authorize any modifications necessary to these
provisions held invalid or inoperative so the parties' intent may be carried
out.
9. Entire
Agreement/Modification.
This Agreement supersedes any and all
agreements, either oral or written, Among the Parties hereto and contains all of
the covenants and agreements between the parties. Each party to this
Agreement acknowledges that no representations, inducements, promises, or
agreements, oral or otherwise, have been made by any party, or anyone acting on
behalf of any party, which are not embodied herein, and that no other agreement,
statement, or promise not contained in this Agreement shall be valid or
binding. Any modification of this Agreement will be effective only if
it is in writing signed by the party to be charged.
10. Further
Assurances.
The Parties hereto hereby agree to
execute such other documents and to take such other action as may be reasonably
necessary to further the purposes of the Agreement.
11. No
Waiver.
No breach of any provision hereof can
be waived unless in writing. Waiver of any one breach of any
provision hereof shall not be deemed to be a waiver of any other breach of the
same or any other provision hereof.
12. Authority to Execute
Agreement.
The Parties represent and warrant that
each of them is fully competent and authorized to execute this Agreement by
their signatures hereto.
13. Captions and
Interpretations.
Paragraph titles or captions contained
herein are inserted as a matter of convenience and for reference only, and in no
way define, limit, extend or describe the scope of this Agreement or any
provision hereof. This Agreement is to be interpreted without regard
to the draftsman. The terms and intent of this Agreement, with
respect to the rights and obligations of the parties, shall be interpreted and
construed on the express assumption that each party participated equally in its
drafting.
14. Counterparts.
This Agreement may be executed in
counterparts by facsimile, with original signatures to follow, each of which
shall constitute an original, but all of which shall constitute one and the same
agreement.
15. Certificate and
Warrant
The KOEW hereby requests, and the
Company agrees, that both the 893,230 restricted shares of its Par Value $0.001
Common Stock and the warrant to purchase 250,000 to be issued to KOEW per this
agreement will be issued in the name of Xxx Xxxxxxxxxxxx.
Executed
on the dates set forth below.
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KOEW:
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___________________________________
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Dated:
___________________
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WHO’S
YOUR DADDY, INC.
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By:
__________________________
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Dated:
___________________
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Xxxx
Xxxxx, CEO
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