SETTLEMENT AGREEMENT
Exhibit
10.1
This
Settlement Agreement (the "Agreement") is made by and between Capital
Securities, LLC (“Capital Securities”), Blackstone Communications Company
(“Blackstone Communications”), Xxxxxx Xxxxxxxxxx (“Bertonatti”), Worldwide PIN
Payment Corp. (“Worldwide”), Qualmax, Inc./New World Brands, Inc.
(“Qualmax”), Bercos Communications, Inc. (“Bercos”), Xxxx Xxxxx
(“Xxxxx”), Blackstone Calling Cards, Inc. (“Blackstone Calling”), Pinserve, LLC
(“Pinserve”), Exigent Technology, Inc. (“Exigent”), Blackstone POS, Inc.
(“Blackstone POS”), Touch-N-Buy, LLC (“Touch”), Xxxxx Xxxxx (“Costa”), Xxxxx
Xxxxxxx (“Xxxxxxx”), and Xxx Xxxxxx (“Moffly”), an individual, (each referred to
herein from time to time as a “Party” and collectively, as the
“Parties”). The term “Effective Date” as used in this Agreement, as
between Qualmax on the one hand and Capital Securities, Bercos, Arias,
Blackstone Calling, Pinserve, Exigent, Blackstone POS, and Touch on the other
hand shall be March 31, 2008. With respect to any undertakings
involving parties other than Qualmax, the term “Effective Date” as used in this
Agreement shall be the date the last of the executing Parties signs
below.
Recitals
WHEREAS, Capital Securities and
Blackstone Communications (collectively, the “Plaintiffs”) filed a lawsuit
styled Capital
Securities, LLC v. Xxxxxx Xxxxxxxxxx in the Circuit Court of the Eleventh
Judicial Circuit of Florida in and for Miami-Dade County, Florida (the “Court”),
Case No. 06-15824 CA 02 (the "Litigation") wherein Plaintiffs asserted claims
against Defendants Bertonatti, Worldwide, and Qualmax;
WHEREAS, Bercos, Blackstone
Communications, Bertonatti, and Worldwide (the “Counter-Plaintiffs”) filed a
counterclaim against Xxxxx, Blackstone Calling, Pinserve, Exigent, Blackstone
POS, Capital Securities, and Touch in the Litigation;
WHEREAS, the Parties have denied each
other’s claims; and
WHEREAS, the Parties wish to avoid the
uncertainties and expense of further litigation in this matter;
WHEREAS,
in order to facilitate settlement and not as any admission of liability or
wrongdoing of any kind, Defendants have agreed to pay Blackstone Calling Cards,
Inc. the sum of $50,000 toward its legal expenses in connection with this
dispute, payable by cashiers check or attorney trust fund check within seven (7)
days after the Effective Date;
NOW
THEREFORE, in consideration of the mutual promises and for other valid
consideration, receipt of which is hereby acknowledged, the Parties agree as
follows:
Agreement
1. Incorporation
of Recitals. The Parties agree and acknowledge that the above
recitals are true and correct and are incorporated into the Agreement as if set
forth in full herein.
2. Dismissal
of Complaint with Prejudice. Immediately following the
Effective Date, the Plaintiffs agree to dismiss the Litigation, with prejudice,
and hereby direct their attorneys to sign and file with the Court a Notice of
Voluntary Dismissal With Prejudice of their complaint in the
Litigation.
3. Dismissal
of Counterclaim with Prejudice. Immediately following the
Effective Date, the Counter-Plaintiffs agree to dismiss the Litigation, with
prejudice, and hereby direct their attorneys to sign and file with the Court a
Notice of Voluntary Dismissal With Prejudice of their counterclaim in the
Litigation.
4. Attorney’s
Fees and Costs Incurred. Except as otherwise provided herein,
all of the Parties to the Litigation and this Agreement agree to bear their own
attorney’s fees and costs incurred in the Litigation and in the negotiation and
preparation of this Agreement.
5. Cease and
Desist. Within one (1) business day following the Effective
Date, Blackstone Communications, Moffly, Pacheco, Bertonatti, Costa, Worldwide,
directly or indirectly, shall cease and desist from using the word “Blackstone”,
or any variations of the word “Blackstone”, in commerce or otherwise and shall
not at anytime thereafter, in perpetuity, be directly or indirectly associated
in any way with any business that uses the word “Blackstone,” for any purpose
whatsoever, including but not limited to, a business name, a website, or a
domain name.
6. Destruction
of Documents and Materials. Within one (1) business day
following the Effective Date, Bertonatti, Costa, Pacheco, and Blackstone
Communications shall destroy all materials bearing the word “Blackstone”,
including, but not limited to, inventory, stationary, letterhead, signage,
catalogs, contract forms, advertising and promotional materials, business forms,
invoices, purchase orders, and business cards. Blackstone
Communications shall also, within this period, remove the word “Blackstone” from
any and all vehicles and cancel any and all advertising utilizing the word
“Blackstone.”
7. Corporate
Name. Blackstone Communications, Bertonatti and Costa
hereby represent and warrant that within five (5) days of the Effective Date,
they will submit to the Florida Secretary of State suitable for filing all
required documentation for changing Blackstone Communications’ corporate name so
that it no longer employs the word “Blackstone”, or any formative variation
thereof. Blackstone Communications further agrees to undertake all
efforts necessary to ensure that the Florida Secretary of State has accepted and
filed Blackstone Communications’ name change such that all references to
Blackstone Communications as the name of an active corporation have been
removed. Within fifteen (15) days of the Effective Date, Blackstone
Communications shall furnish Blackstone Calling with certified copies of all
name change documents furnished to and filed by the Florida Secretary of State
and a certified copy of the name change which contains confirmation by the
Florida Secretary of State of the effective date of the name
change.
8. Blackstone
Communications Liabilities. Worldwide, Costa and Bertonatti
shall indemnify and hold harmless Capital, Blackstone Calling Card, Inc.,
Blackstone Calling the World, Inc., Blackstone Wireless, Inc., Blackstone OTC
Corporation, Blackstone Marketing, Inc., Blackstone Distribution, Inc.,
Blackstone Online, Inc., Blackstone E-Commerce, Inc., A Communications, Inc.,
Blackstone 00-00-000, Inc., Pre-Paid Internet Distributors, Inc., Blackstone One
Plus, Inc., Blackstone One Plus, Inc., Blackstone, Inc., Blackstone POS, Inc.,
Blackstone, ISP, Inc., xxx.xxxxxxxxxxxxxxxxxxxxx.xxx, inc., Blackstone Merchant
Services, Inc., and Xxxxx (collectively, the “Indemnified Parties”) from any and
all demands, liabilities, obligations, actions, claims, damages, penalties,
causes of action, judgments, interest, penalties, costs and expenses (including
without limitation, reasonable attorneys' fees at the trial, appellate and
post-judgment levels) asserted against, imposed upon or incurred by the
Indemnified Parties by reasons of or resulting from, or otherwise in connection
with, any obligation of Blackstone Communications unless the outstanding
obligation was incurred by Blackstone Communications prior to April 1,
2004.
9. Breach of
Agreement. In any action for breach of this Agreement, the
prevailing Party shall be entitled to recover its attorneys’ fees and costs
incurred in such action. The Agreement is specifically enforceable by
injunctive relief. In the event any Party breaches the non-monetary
provisions of this Agreement, all Parties agree that there is no adequate remedy
at law and that the granting of an injunction is appropriate to enforce
compliance with this Agreement.
10. Mutual
Release by All Parties Excepting the Obligations of this Agreement.
Except as specifically stated herein, each Party hereby releases each
other Party and that Party’s parents, subsidiaries, related entities, heirs,
assigns, successors in interest, and its or their respective officers,
directors, shareholders, members, employees, agents, and attorneys, from any and
all claims, demands, causes of action and damages, known or unknown, whether for
injury or damage to person or to property or otherwise, at law or in equity,
which now exist or may hereafter accrue in their favor upon the basis of facts
existing, whether known or unknown, from the beginning of time to the Effective
Date, including without limitation, any claims which were raised or could have
been raised in the Litigation; except that Qualmax does not hereby release
Worldwide, Bertonatti, Costa, and Moffly for any claims, and Worldwide,
Bertonatti, Costa, and Moffly do not hereby release Qualmax for any
claims.
11. Covenant
Not to Xxx. The Parties agree that from this day
forward they will not file any legal action against any other Party or any
Affiliate of any Party alleging violation of any intellectual property rights
including, but not limited to, copyright, patent, and/or trade secrets.
For the purposes of this paragraph, Affiliate is defined as any business entity
which is or at any time has been owned, in whole or in part, by any Party or
combination of Parties.
12. Authority. The
Parties, and those persons executing this Agreement on behalf of the Parties,
represent that those persons executing this Agreement are authorized to do
so.
13.
Construction. Each
Party has been represented by counsel, or has had the opportunity to be
represented by counsel, and each Party had the opportunity to review and revise
this Agreement. No Party to this Agreement (nor any attorney for any
Party) shall be deemed to be the drafter of this Agreement. Any rule
of construction under Florida law requiring that ambiguities be resolved against
the drafting Party shall not be employed in the interpretation of this
Agreement.
14. Choice of
Law/Venue Law Governing. This Agreement shall be interpreted,
construed, and governed in accordance with the laws of the State of Florida,
without regard to any conflicts of law principles of Florida law. The
Parties agree that in any action arising from or relating to the Agreement all
Parties are subject to personal jurisdiction in the State of
Florida. Further, any action arising from or relating to this
Agreement, venue shall exclusively be in a court of competent jurisdiction in
Miami-Dade County, Florida.
15. Counterparts
and Facsimile. This
Agreement may be executed in one or more counterparts, all of which taken
together will constitute one in the same instrument. Legible facsimile
signatures shall be acceptable as originals; provided, however, that upon
request by any Party, any other Party shall provide an originally executed
signature page to such Party.
16.
Entire
Agreement and Amendement. This Agreement constitutes the
complete and final agreement between the Parties, and supersedes all prior
negotiations, agreements, and understandings between the Parties concerning
its subject matter. This Agreement may be amended or modified in
whole or in part, at any time only by an agreement in writing, signed by both
Parties, and supported by additional consideration.
17.
Survival. The
respective rights and obligations of the Parties hereunder shall survive any
termination of this Agreement to the extent necessary to the intended
preservation of such rights and obligations.
18.
Further
Acts. The Parties shall each, without further consideration,
execute such additional documents as may be reasonably required in order to
carry out the purposes and intent of this Agreement and to fulfill the material
obligations of the respective Parties hereto.
19. No
Waiver; Remedies Cumulative. No failure on the part of a Party
hereunder to exercise and no delay in exercising any right hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the exercise
of any other right. Except as otherwise set forth herein, remedies
herein provided are cumulative and not exclusive of any other remedy provided by
law.
20. Notices. Unless
otherwise provided in this Agreement, any notice, request, instruction or other
communication to be given hereunder by any Party to the other shall be in
writing and (i) delivered personally, (ii) electronically mailed or faxed, if
such information has been provided (such notice effective with delivery
confirmation), (iii) mailed by certified mail, postage prepaid, (such notice to
be effective three (3) business days after the date it is mailed), or (iv) sent
by recognized international over-night courier such as Federal Express (such
notice to be effective one (1) business day after the date it is sent) at the
address set forth under each Party’s signature below (or such other address as
shall be given in writing by either Party to the other).
21. Assignment. The
Parties agree that this Agreement may not be assigned by any Party.
22. Severability. Whenever
possible, each provision of this Agreement will be interpreted in such a manner
as to be effective and valid under applicable law, but if any provision of this
Agreement is held to be prohibited by or invalid under applicable law, such
provision will be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provisions or the
remaining provisions of this Agreement; provided that if the prohibition or
invalidation of any provision of this Agreement materially diminishes the
consideration payable to any Party hereunder, such Party shall have the right to
rescind this Agreement and the transactions contemplated hereunder.
23. Headings. The
headings to the paragraphs and sections of this Agreement are intended for the
convenience of the Parties only and shall in no way be held to explain, modify,
amplify, or aid in the interpretation of the provisions hereof.
24. Binding. The
provisions of this Agreement shall be binding upon the successors, heirs,
personal representatives and assigns of each Party executing this Agreement and
shall inure to the benefit of the successors, heirs, personal representatives
and assigns of the other Parties executing this Agreement. It is
expressly understood that the failure of any Party named herein to execute this
Agreement does not affect the validity or enforceability of this Agreement with
respect to any executing Party.
[SIGNATURE
PAGES TO FOLLOW]
CAPITAL
SECURITIES, LLC
By: /s/ Xxxxxxx
Xxxxx
Xxxxxxx
Xxxxx, President
Print
Name
Title:
_______________________________
Date:_______________________________
Address:_____________________________
____________________________________
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BLACKSTONE
COMMUNICATIONS COMPANY
By: /s/
Xxxxxxx
Xxxxx
Xxxxxxx
Xxxxx, President
Print
Name
Title:
_______________________________
Date:_______________________________
Address:_____________________________
____________________________________
|
XXXXXX
XXXXXXXXXX
By:_________________________________
___________________________________
Print
Name
Title:_______________________________
Date:
_______________________________
Address:_____________________________
____________________________________
|
WORLDWIDE
PIN PAYMENT CORP.
By:__________________________________
_____________________________________
Print
Name
Date:________________________________
Address:_____________________________
____________________________________
|
QUALMAX, INC./NEW WORLD
BRANDS, INC.
By: M. Xxxxx
Xxxxxx
M. Xxxxx
Xxxxxx, CEO
Print
Name
Title:
_______________________________
Date:________________________________
Address:_____________________________
____________________________________
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BERCOS
COMMUNICATIONS, INC.
By: /s/
Xxxxxxx Xxxxx
Xxxxxxx
Xxxxx, President
Print
Name
Title:
_______________________________
Date:_______________________________
Address:_____________________________
____________________________________
|
XXXX
XXXXX
By: /s/ Xxxx
Xxxxx
Xxxx
Xxxxx
Print
Name
Title:
_______________________________
Date:_______________________________
Address:_____________________________
____________________________________
|
BLACKSTONE
CALLING CARDS, INC.
By: /s/
Xxxxxxx
Xxxxx
Xxxxxxx
Xxxxx, President
Print
Name
Title:
_______________________________
Date:_______________________________
Address:_____________________________
____________________________________
|
PINSERVE,
LLC
By: /s/ Xxxxxxx
Xxxxx
/s/
Xxxxxxx Xxxxx, President
Print
Name
Title:_______________________________
Date:
_______________________________
Address:_____________________________
____________________________________
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EXIGENT
TECHNOLOGY, INC.
By:
/s/ Xxxxxxx
Xxxxx
Xxxxxxx
Xxxxx,
President
Print
Name
Date:________________________________
Address:_____________________________
____________________________________
|
XXXXXXXXX POS,
INC.
By: /s/ Xxxxxxx
Xxxxx
Xxxxxxx
Xxxxx,
President
Print
Name
Title:
_______________________________
Date:________________________________
Address:_____________________________
____________________________________
|
TOUCH-N-BUY,
LLC.
By: /s/
Xxxxxxx Xxxxx
Xxxxxxx
Xxxxx, President
Print
Name
Title:
_______________________________
Date:_______________________________
Address:_____________________________
____________________________________
|
XXXXX
XXXXX
By:_________________________________
____________________________________
Print
Name
Title:
_______________________________
Date:_______________________________
Address:_____________________________
____________________________________
|
XXXXX
XXXXXXX
By:________________________________
__________________________________
Print
Name
Title:
_______________________________
Date:_______________________________
Address:_____________________________
____________________________________
|
XXX
XXXXXX
By:_________________________________
____________________________________
Print
Name
Date:________________________________
Address:_____________________________
____________________________________
|
By: __________________________________
_____________________________________
Print
Name
Date:_________________________________
Address:_____________________________
____________________________________
|