SETTLEMENT AND RELEASE AGREEMENT
Exhibit
10.1
SETTLEMENT
AND RELEASE AGREEMENT
This
SETTLEMENT
AND RELEASE AGREEMENT (this
“Agreement”), is entered into as of this 10th 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 Xxxxx Xxxxx, an individual, with his principal place of
business at 0000 Xx Xxxxx Xxxxxxxx Xxxxxx, Xxxxx Xx, Xxxxxxxxxx 00000 (“Price”)
(each of Benacquista and Price, individually, a “Party”, and collectively, the
“Parties”).
WHEREAS,
on
January 31, 2003 Price and Benacquista entered into an agreement for the
sale of
certain collectible, investment grade works of art held in Price’s personal
collection, and in consideration for which Benacquista issued Price an unsecured
promissory note in the principal amount of $862,127, bearing interest at
a rate
of five percent (5%) per annum, and payable in full on or before June 30,
2005,
with no prior periodic payments due (the “Note”);
WHEREAS,
as of
the date hereof the Note remains unpaid, with the outstanding principal balance
together with all interest accrued thereon at $1,104,187.01;
WHEREAS,
in
addition to the Note, Benacquista has accumulated a total outstanding debt
of
approximately $226,652.95 payable to Price for accrued but as yet unpaid
salary,
rent and certain cash advances (the “Additional Obligations”);
WHEREAS,
as of
the fiscal year ended September 31, 2006, Benacquista had the works of art
remaining in its inventory, as set forth in Schedule A annexed hereto (the
“Works of Art”), valued by a third party appraiser at approximately $1,404,500 ;
and
WHEREAS,
Price
desires to acquire and Benacquista desires transfer all of its rights, title
and
interest in and to the Works of Art in settlement of any and all remaining
obligations under the terms of the Note and of all Additional
Obligations;
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 of All Obligations.
Upon
execution of this Agreement or as at a time as soon as reasonably practicable
thereafter, Benacquista shall deliver to Price all of the remaining Works
of
Art, as set forth in Schedule A, in full satisfaction of the outstanding
principal balance of the Note, all interest accrued thereon and of all
Additional Obligations accrued through the date hereof.
2. Mutual
and General Release.
2.1 Price
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
he 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 or other Additional
Obligations.
2.2 Benacquista
hereby fully, forever, irrevocably and unconditionally releases, remises
and
discharges Price and his 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 Price
or his
attorneys, agents and employees, including, without limitation, any and all
claims arising out of the Note or other Additional Obligations.
2. Representations
and Warranties of Price. Price
hereby represents and warrants to Benacquista, as of the date
hereof:
2.1 No
other
person has any interest in or rights to the Note, any of the obligations
thereunder or any of the other Additional Obligations;
2.2 Neither
the Note, the proceeds thereof, nor the proceeds of the Additional Obligations
have been assigned, pledged, hypothecated, discharged or otherwise encumbered
by
Price;
2.3 Price
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 Price and, upon due
execution and delivery by Price, this Agreement shall constitute the valid
and
binding obligation of Price, enforceable in accordance with its terms, except
to
the extent that enforceability may be limited by applicable law or general
principles of equity.
3. Representations
and Warranties of Benacquista. Benacquista
hereby represents and warrants to Price, as of the date hereof:
3.1 No
other
person has any right, title or interest in or to any of the Works of
Art;
3.2 The
Works
of Art have not been encumbered, pledged, hypothecated, sold, assigned,
transferred or otherwise disposed of by Benacquista;
3.2 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. Miscellaneous.
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.
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.
|
BENACQUISTA
GALLERIES, INC.
|
||
|
By:
|
/s/
Xxxxx
Xxxxx
|
|
|
Xxxxx
Xxxxx
|
||
|
Chief
Executive Officer
|
||
|
By:
|
/s/
Xxxxx
Xxxxx
|
|
|
Xxxxx
Xxxxx
|
||
