AGREEMENT
Exhibit
10.1
This
AGREEMENT
(this
“Agreement”), is entered into as of this 2nd day of February, 2007, by and
between Benacquista Galleries Inc., a Nevada corporation, with its principal
place of business at 0000 Xx Xxxxx Xxxxxxxx Xxxxxx, Xxxxx Xx, Xxxxxxxxxx
00000
(“Benacquista”), and Whole In One Organics, Inc., a privately-held Nevada
corporation, with its principal executive offices at 1375 Xxxxxx, Xxx Xxxxxxx,
Xxxxxxxxxx 00000 (“Whole In One”) (each of Benacquista and Whole In One,
individually, a “Party”, and collectively, the “Parties”).
WHEREAS,
on
December 18, 2006 the Parties hereto entered into a certain stock purchase
agreement (the “Stock Purchase Agreement”), pursuant to the terms of which
Benacquista acquired four million nine hundred thousand (4,900,000) unregistered
shares of Whole In One common stock (the “Common Shares”) in consideration of
certain services provided and funds in the aggregate amount of ten thousand
dollars ($10,000) (the “Purchase Price”); and
WHEREAS,
as a
consequence of certain subsequent events, the Parties now desire to void
the
Stock Purchase Agreement
ab
initio,
and
exchange mutual and general releases, so as to restore each to its respective
position prior to execution and delivery of the Stock Purchase
Agreement;
NOW,
THEREFORE,
in
consideration of the forgoing, and of the mutual covenants and agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties, intending
to be legally bound, do hereby covenant and agree as follows:
1. Voiding
of the Stock Purchase Agreement.
Benacquista and Whole In One do hereby agree that the Stock Purchase Agreement
is null and void ab
initio,
having
no force or effect whatsoever, with the result of the Common Shares being
restored to the status of authorized but unissued shares.
2. Remittance
of Purchase Price and Deliver of Common Shares. Upon
execution hereof or as at a time as soon as reasonably practicable thereafter,
Whole In One shall pay to the order of Benacquista, in same day immediately
available funds, the aggregate Purchase Price, upon receipt of which Xxxxxxxxxx
shall take, or cause to be taken, all actions reasonably necessary to deliver
to
Whole In One any certificate or certificates representing the Common Shares
and
registered in its name or in the name of its nominees.
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3.
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Mutual
and General Release.
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3.1 Benacquista
hereby fully, forever, irrevocably and unconditionally releases, remises
and
discharges Whole In One and its officers, directors, stockholders, affiliates,
attorneys, agents and employees from any and all claims, charges, complaints,
demands, actions, causes of action, suits, rights, debts, sums of money,
costs,
accounts, reckonings, covenants, contracts, agreements, promises, doings,
omissions, damages, executions, obligations, liabilities, and expenses
(including attorneys’ fees and costs), of every kind and nature whatsoever which
it may have ever had or now has against Whole In One or its officers, directors,
stockholders, affiliates, attorneys, agents and employees, including, without
limitation, any and all claims arising out of the Stock Purchase Agreement
and
the voiding thereof.
3.2 Whole
In
One hereby fully, forever, irrevocably and unconditionally releases, remises
and
discharges Benacquista and its officers, directors, stockholders, affiliates,
attorneys, agents and employees from any and all claims, charges, complaints,
demands, actions, causes of action, suits, rights, debts, sums of money,
costs,
accounts, reckonings, covenants, contracts, agreements, promises, doings,
omissions, damages, executions, obligations, liabilities, and expenses
(including attorneys’ fees and costs), of every kind and nature whatsoever which
it may have ever had or now has against Benacquista or its officers, directors,
stockholders, affiliates, attorneys, agents and employees, including, without
limitation, any and all claims arising out of the Stock Purchase Agreement
and
the voiding thereof.
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4.
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Miscellaneous.
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4.1 Expenses.
Each
of
the Parties hereto shall bear their own expenses in connection with the
transactions contemplated by this Agreement, including, without limitation,
attorneys’ fees and costs and any expenses incurred in relation to the filing of
notices with federal or state securities commissions or regulatory
authorities.
4.2 Further
Action. Each
of
the Parties hereto shall execute and deliver all documents, provide all
information, and take or forbear from taking all such action as may be
reasonably necessary or appropriate to achieve the purpose of this Agreement
and
to restore each
Party to its respective position prior to execution and delivery of the Stock
Purchase Agreement.
4.3 Entire
Agreement. This
Agreement constitutes the full and entire Agreement by and between the Parties
with regard to the subject matter hereof and supersedes all prior agreements
between the Parties, whether written or verbal. The failure by either Party
to
enforce any rights under this Agreement shall not be construed as a waiver
of
any rights of such Party. Any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived, generally or in a
particular instance and either retroactively or prospectively, only with
the
written consent of the Parties hereto.
4.4 Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of each of the Parties
hereto and their respective successors, legal representatives and
assigns.
4.5 Notices.
Any
notice or other communication required or permitted by this Agreement shall
be
given in writing and shall be deemed sufficient when delivered personally,
or on
the first attempted date of delivery after being mailed by certified or
registered mail, return receipt requested, to the Parties at the addresses
first
set forth at the beginning of this Agreement or at such other address as
shall
be specified by the Parties by like notice.
4.6 Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original, but all of which taken together shall constitute one
instrument.
4.7 Severability.
If one
or more provisions of this Agreement are held to be unenforceable under
applicable law, the validity of this Agreement shall not be affected thereby
and
the remaining provisions shall continue in full force and effect, construed
as
if such unenforceable provision was not a part of this Agreement.
4.8 Headings.
The
headings and captions contained in this Agreement are for reference purposes
only and shall not affect, in any way, the meaning or interpretation of this
Agreement.
4.9 Governing
Law; Jurisdiction; Jury Trial.
This
Agreement shall be governed in all respects by the laws of the State of Nevada,
without giving effect to any choice of law or conflict of law provision or
rule
(whether of the State of Nevada or any other jurisdictions) that would cause
the
application of the laws of any jurisdictions other than the State of Nevada.
Each Party hereby irrevocably submits to the exclusive jurisdiction of the
state
and federal courts sitting in the City of Reno, Nevada, for the adjudication
of
any dispute hereunder or in connection herewith, and hereby irrevocably waives,
and agrees not to assert in any suit, action or proceeding, any claim that
it is
not personally subject to the jurisdiction of any such court, that such suit,
action or proceeding is brought in an inconvenient forum or that the venue
of
such suit, action or proceeding is improper. Each Party hereby irrevocably
waives personal service of process and consents to process being served in
any
such suit, action or proceeding by mailing a copy thereof to such Party at
the
address for such notices to it under this Agreement and agrees that such
service
shall constitute good and sufficient service of process and notice thereof.
Nothing contained herein shall be deemed to limit in any way any right to
serve
process in any manner permitted by law. EACH
PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.
[THIS
SPACE IS INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF,
the
Parties hereto have executed this Agreement as of the date first appearing
above.
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BENACQUISTA
GALLERIES, INC.
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By:
/s/ Xxxxx
Xxxxx
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Xxxxx
Xxxxx
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Chief
Executive Officer
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WHOLE
IN ONE ORGANICS, INC.
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By:
/s/ Xxxxxx
Xxxxxx
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Xxxxxx
Xxxxxx
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President
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