Agreement of Sale
This
Agreement of Sale (“Agreement”) is entered into by and between Vibe Records,
Inc., a Delaware Corporation (“Vibe”), Benacquista Galleries, Inc., a Nevada
corporation (“Benacquista”), Xxxxx Xxxxx, an Individual and Xxxxxxx Xxxxxx, an
individual (and together the “Parties”) as of January 11, 2008.
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1.
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Full
Agreement and
Settlement. The Parties have previously been involved in
a transaction concerning the purchase of shares of Benacquista
by Olphie
and the exchange of shares between Benacquista and Vibe. There
have been some disputes related to these transactions and in an
effort to
resolve those disputes, the Parties have entered into this
Agreement. This Agreement constitutes a full and final
settlement between the parties with respect to any business matters
of any
kind or character that exist or have ever existed between
them. All prior Agreements by and between Vibe Records
and Benacquista are hereby cancelled and are void. The prior
Agreement for sale between Messrs. Price and Olphie is hereby cancelled
and is void. This includes the complete waiver and discharge of
any claims
for deposits made with respect to the transactions. A prior
deposit paid on behalf of Olphie by Xxx XxXxx is forfeited and
any claim
for refund thereof is hereby waived and released. This
Agreement fully supersedes and replaces any other documents or
understandings of any kind between the Parties. In
consideration for the mutual promises contained in this Agreement,
the
Parties agree, now and forever, on behalf of themselves, their
officers,
directors, employees, shareholders, service providers, affiliates,
subsidiaries, heirs, assignees, legatees to forever release and
discharge
each other for any claims or causes of action, known or unknown,
of any
kind or character whatsoever. This waiver of unknown claims is
made specifically and with knowledge of its consequences.
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2.
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Share
Purchase. In consideration of the conditions and
covenants hereof, Xxxxx Xxxxx hereby grants to Xxxxxxx Xxxxxx,
or his
assignee, an Option to purchase 496,910 common shares of Benacquista
for a
purchase price of $500,000, under, the Payment Schedule listed
in Section 3 hereof, without exception. Time is of the essence
with respect to these payments and there will be no notice of default,
grace period, presentment or demand of any kind with respect to
the
payments. Any payment not received on or before the date due
will result in the immediate cancellation of the option. Any
payments made are non-refundable and represent liquidated damages
to be
retained by Xxxxx Xxxxx, in compensation for transaction costs
and missed
opportunities, which would be very difficult to quantify.
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3.
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Payment
Schedule. A $25,000 non-refundable deposit must be
received by wire transfer within three business days of the date
of this
Agreement. The balance of $475,000 must be received within 45
days of the date of this Agreement, unless payment of One Time
Only
Extension Fee is made. The One Time Only Extension Fee must be
received within 45 days of the date hereof. The One Time Only
Extension Fee consists of an additional non-refundable deposit
of
$25,000. If the One Time Only Extension Fee is paid, final
payment of the remaining $450,000 must be received within 60 days
of the
date of this Agreement. Failure to make any payment exactly as
noted in this section results in immediate cancellation of the
Option
above and retention of any non-refundable deposits as liquidated
damages
by Xxxxx Xxxxx.
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4.
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Vibe,
Olphie and
Benacquista Covenants. Xxxxx Xxxxx owns 896,910 common
shares of Benacquista as of the date of this
Agreement. Assuming that the Option is exercised in accordance
with its terms, Price will own 400,000 common shares of Benacquista
(“Price Shares”). Vibe, Benacquista and Olphie hereby covenant
that the Price Shares will be equal to at least 5% of the issued
and
outstanding stock of Benacquista, on a fully-diluted, fully converted
basis for a period of 180 days from the exercise of the Option
(“Price
Share Percentage”). In the event of the exercise of
the One Time Only Extension, the Price Share Percentage hereunder
shall be
increased to 5.5%. During the 180 days following closing, each
and every time that Benacquista, after the exercise of the Option,
causes
common shares, options or warrants to purchase common shares, preferred
stock, convertible debt or any other instrument which provides
for
conversion into common shares in an amount that causes the Price
Shares to
drop below the Price Share Percentage, Benacquista shall immediately
and
without further demand issue the number of fully paid, non-assessable
common shares to Price necessary for the newly issued shares and
the Price
Shares together to equal the Price Share Percentage (the “Additional
Shares”). This paragraph 4 shall be a continuing covenant
surviving the closing under this Agreement. Vibe, Olphie and
Benacquista also covenant to allow Price to sell the Price Shares
as
permitted under Rule 144 and not to object or interfere in any
way with
the removal of restrictions on the Price Shares, as long as they
receive
an opinion from counsel of Mr. Price’s choosing that such restrictions may
be appropriately removed. The penalty for failure to
issue the Additional Shares within three business days or the failure
to
cause any restrictive legends to be removed from the Price Shares
after an
opinion of counsel, will be a liquidated damages amount of $10,000
for
each and every business day that such a failure shall
occur. Such damages shall be due immediately and without demand
or presentment.
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5.
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Benacquista
Covenants
and Representations. During the period of this Option,
Benacquista agrees not to issue any common or preferred shares
or options
or warrants to purchase the same, enter into any contracts or obligations
outside of the ordinary course of business or to take on any material
indebtedness. The public filings of Benacquista are accurate in
all material respects when taken as a whole. There has
been no material change in the business or circumstance of Benacquista
since its last public filing, other than concerns the transactions
previously discussed in this Agreement. In the event of a
violation of the covenants and representations contained in this
section,
the sole and exclusive remedy for such a violation shall be the
return of
whatever portion of the $50,000 in deposits under this Agreement
have been
made. This covenant and representation shall apply only until
full payment is received hereunder for the Option, at which time
it shall
be null and void.
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6.
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Due
Diligence. Vibe and Olphie acknowledge and affirm that
they have been provided with all due diligence materials they require
to
enter into this transaction and do so, with full awareness of all
of the
conditions and circumstances of Benacquista, and hereby waive any
claim of
material non-disclosure.
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7.
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Miscellaneous. All
Parties understand that there are serious legal consequences to
this
Agreement. All Parties represent that they are proceeding with
this Agreement after consultation with their legal
counsel. All parties have the authority to enter into
this Agreement. This Agreement is governed by Nevada law and
the parties agree that the State Courts of Xxxxx, County, Nevada
have
proper venue and personal jurisdiction over the parties. This
Agreement may be signed in counterparts, which together will constitute
an
original.
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8.
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Resignation
of
Director. As a condition hereof Xxx XxXxx shall resign
as Director of Benacquista concurrent with or prior to the execution
hereof.
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Agreed
and Accepted as of the date first written above,
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X
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/s/
Xxxxx
Xxxxx
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Xxxxx
Xxxxx, an Individual
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X
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/s/ Xxxxx
Xxxxx
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Benacquista
Galleries, Inc., a Nevada corporation
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By
Xxxxx Xxxxx, President and CEO
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X
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/s/
Xxxxxxx
Xxxxxx
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Xxxxxxx
Xxxxxx, an Individual
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X
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/s/
Xxxxxxx
Xxxxxx
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Vibe
Records Inc., a Delaware corporation
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By
Xxxxxxx Xxxxxx, President and
CEO
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