SETTLEMENT AND RELEASE AGREEMENT
Exhibit
10.1
SETTLEMENT
AND RELEASE AGREEMENT
This
SETTLEMENT
AND RELEASE AGREEMENT (this
“Agreement”), is entered into as of this 6th day of April, 2007, by and between
Benacquista Galleries Inc., a Nevada corporation, with its principal executive
offices at 0000 Xx Xxxxx Xxxxxxxx Xxxxxx, Xxxxx Xx, Xxxxxxxxxx 00000
(“Benacquista”), and Monarch Consulting, LLC, a privately-held limited liability
company, with its principal executive offices at 0 Xxxxxxxxx Xx., Xxxxxxxxxxxx,
Xxxxxxxx 00000 (“Monarch”) (each of Benacquista and Monarch, individually, a
“Party”, and collectively, the “Parties”).
WHEREAS,
on
January 31, 2003 Benacquista issued a certain common stock purchase warrant
to
acquire up to one million (1,000,000) shares of its common stock, par value
$0.001 per share, at a price of $1.00 per share to XCL Partners (the
“Warrant”);
WHEREAS,
XCL
Partners, in accordance with the terms and conditions of the Warrant,
transferred to Monarch the right to acquire up to four hundred thousand
(400,000) shares of the common stock underlying the Warrant;
WHEREAS,
on
January 31, 2006 Monarch exercised that portion of the Warrant entitling
it to
acquire four hundred thousand (400,000) common shares (the “Common Shares”) in
consideration of a full recourse promissory note in the principal sum of
four
hundred thousand dollars ($400,000), bearing interest at a rate of five percent
(5%) per annum and payable in full on or before January 31, 2008, with no
prior
periodic payments due (the “Note”);
WHEREAS,
on
January 8, 2007 Benacquista effectuated a consolidation of its common shares
on
a ten-for-one basis;
WHEREAS,
as of
the date hereof, Monarch has made payments in the aggregate amount of
$121,650.00, with an outstanding balance of $303,899.58 in principal and
interest remaining; and
WHEREAS,
after
careful analysis and negotiation, each Party hereto now desires to enter
into
this Agreement to settle any and all of their respective remaining rights
and
obligations under the terms of the Note;
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. Settlement
and Satisfaction.
Upon
execution of this Agreement or as at a time as soon as reasonably practicable
thereafter, Monarch shall take any and all actions necessary or reasonably
advisable to remit to Benacquista twenty-five thousand (25,000) of the Common
Shares it received upon exercise of the Warrant in consideration of the full
satisfaction of the outstanding principal balance of the Note together with
all
interest accrued thereon through the date hereof.
2. Mutual
and General Release.
2.1 Benacquista
hereby fully, forever, irrevocably and unconditionally releases, remises
and
discharges Monarch 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 Monarch or its officers, directors,
stockholders, affiliates, attorneys, agents and employees, including, without
limitation, any and all claims arising out of the Note.
2.2 Monarch
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 Note.
3. Representations
and Warranties of Benacquista. Benacquista
hereby represents and warrants to Monarch, as of the date hereof:
3.1 No
other
person has any interest in or rights to the Note or any of the obligations
thereunder;
3.2 Neither
the Note nor the proceeds thereof have been assigned, pledged, hypothecated,
discharged or otherwise encumbered by Benacquista;
3.3 Benacquista
has all requisite power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery
of
this Agreement and the consummation of the transactions contemplated hereby
have
been duly authorized by all necessary action on the part of Benacquista and,
upon due execution and delivery by Benacquista, this Agreement shall constitute
the valid and binding obligation of Benacquista, enforceable in accordance
with
its terms, except to the extent that enforceability may be limited by applicable
law or general principles of equity.
4. Representations
and Warranties of Monarch. Monarch
hereby represents and warrants to Benacquista, as of the date
hereof:
4.1 The
Common Shares have not been encumbered, pledged, hypothecated, sold, assigned,
transferred or otherwise disposed of by Monarch;
4.2 Monarch
has all requisite power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery
of
this Agreement and the consummation of the transactions contemplated hereby
have
been duly authorized by all necessary action on the part of Monarch and,
upon
due execution and delivery by Monarch, this Agreement shall constitute the
valid
and binding obligation of Monarch, enforceable in accordance with its terms,
except to the extent that enforceability may be limited by applicable law
or
general principles of equity.
5. Miscellaneous.
5.1 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.
5.2 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.
5.3 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.
5.4 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.
5.5 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.
5.6 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.
5.7 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.
5.8 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.
5.9 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 first set forth at the beginning of 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:
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/s/
Xxxxx
Xxxxx
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Xxxxx
Xxxxx
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Chief
Executive Officer
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MONARCH
CONSULTING, LLC.
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By:
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/s/
Xxxxx
Xxxxx
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Xxxxx
Xxxxx
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President
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