SETTLEMENT AGREEMENT AND GENERAL RELEASE
Exhibit
10.1
SETTLEMENT AGREEMENT AND
GENERAL RELEASE
THIS
SETTLEMENT AGREEMENT AND GENERAL RELEASE ("Agreement") is made as of the 13th
day of October, 2010 between XXX CONSULTING, INC. (“XXX”), on the one hand, and
BELMONT PARTNERS, LLC (“Belmont”), on the other hand, each of whom may hereafter
be referred to as the “Parties.”
RECITALS
A. XXX
owes Belmont 750,000 shares of XXX common stock pursuant to that certain Common
Stock Purchase Agreement dated September 2, 2009 by and among Liberator, Inc.
and the Parties (the “Equity Issuance”);
B. XXX
alleges that Belmont may have violated the short swing profit rules enacted
under Section 16(b) of The Securities Exchange of Act of 1934 (the “Section 16
Claim”).
C. Belmont
denies that it has violated the short swing profit rules enacted under Section
16(b) of the Securities Exchange Act of 1934.
D. The
Parties wish to reach an amicable solution in order to avoid the costs and
uncertainties of protracted and time consuming litigation, therefore, the
Parties have agreed that the Equity Issuance owed to Belmont by XXX will be
considered as satisfied in full by Belmont with the issuance of three hundred
fifty thousand (350,000) restricted shares of XXX common stock (the
“Shares”).
D. The
parties wish to compromise and forever settle the Equity Issuance and the
Section 16 Claim between them pursuant to the terms of this
Agreement.
AGREEMENT
NOW,
THEREFORE, for good and valuable consideration, the receipt of which is hereby
acknowledged, and in consideration of the mutual promises, covenants and
conditions herein contained, the Parties agree as follows:
1. Settlement
Payment. Upon full execution of this Agreement, XXX shall
issue the Shares to Belmont or its assignee(s) in full satisfaction of the
Equity Issuance. The 350,000 Shares shall be unregistered, but shall otherwise
have no restriction (the “Restricted Shares”). The Restricted Shares shall be
issued in the name of Belmont Partners, LLC.
2. Release. Except
for the rights and obligations of Belmont arising from this Agreement, XXX
hereby, for itself and its officers, directors, employees, agents, partners,
members, representatives, predecessors, successors, insurers and assigns,
discharge and release Belmont, and its respective past and present employees,
officers, directors, affiliates, subsidiaries, partners, shareholders, agents,
executors, administrators, trustees, heirs, spouses, attorneys, insurers,
representatives, assigns, predecessors, successors and related entities (the
“Belmont Released Parties”), from any and all claims, damages, actions,
judgments, obligations, attorneys' fees, indemnities, subrogations, duties,
demands, controversies and liabilities of every nature at law or in equity,
liquidated, or unliquidated, known or unknown, matured or unmatured, foreseeable
or unforeseeable, which they had or have arising out of any circumstance, thing,
or event alleged, related or pertaining to a Section 16 Claim against a Belmont
Released Party, or the Equity Issuance.
3. Entire
Agreement. This Agreement contains the sole, complete and
entire agreement and understanding of the Parties concerning the matters
contained herein and may not be altered, modified, or changed in any manner
except by a writing duly executed by the Parties. No Party is relying
on any representations other than those expressly set forth
herein. No conditions precedent to the effectiveness of this
Agreement exist, other than as expressly provided for herein. All
prior discussions and negotiations have been and are merged, integrated into and
superseded by this Agreement.
4. Waiver. The
delay or failure of a Party to exercise any right, power or privilege hereunder,
or failure to strictly enforce any breach or default shall not constitute a
waiver with respect thereto; and no waiver of any such right, power, privilege,
breach or default on any one occasion shall constitute a waiver thereof on
subsequent occasion unless clear and express notice thereof in writing is
provided.
5. Attorneys’ Fees Upon
Breach. If any action at law or in equity, or any motion, is
brought to enforce this Agreement, the prevailing Party shall be entitled to all
of its costs in bringing and prosecuting said action or motion, including
reasonable attorneys’ fees.
6. Applicable
Law. This Agreement shall be construed according to the laws
of the State of Georgia in effect as of the date of
execution.
7. Advice of
Counsel. The Parties represent that prior to the execution of
this Agreement they had the opportunity to seek the benefit of independent legal
counsel of their own selection regarding the substance of this
Agreement.
8. No
Liability. This Agreement is executed by the Parties hereto
for the sole purpose of settling the matters involved in the dispute, and it is
expressly understood and agreed, as a condition hereof, that this Agreement
should not constitute nor be construed to be an admission of the truth or
correctness of any claim asserted.
9. Warranties. The
Parties, and each of them, warrant, severally and not jointly: (i)
that no other person or entity had or has or claims, any interest in any of the
claims, demands, causes of action, or damages covered in this Agreement; (ii)
that they, and each of them, have the sole right and exclusive authority to
execute and perform this Agreement; (iii) that they have not sold, assigned,
transferred, conveyed or otherwise disposed of any claim, demand, cause of
action, obligation, damage or liability covered in this Agreement; and (iv) that
they have not filed any complaints, charges or other actions against any other
Party with any local, state or federal agency or court, or any other
forum.
10. Representation of
Authority. Each individual executing this Agreement on behalf
of any Party expressly represents and warrants that he has authority to execute
and thereby bind the Party on behalf of which he executes this Agreement to the
terms of this Agreement and agrees to indemnify and hold harmless each other
party from any claim that such authority did not exist.
11. Headings. The
headings included in this Agreement are for convenience only and do not limit,
alter, or affect the matters contained in this Agreement or the paragraphs they
encaption.
12. Counterparts. This
Agreement may be executed in one or more counterparts, all of which together
constitute one single document.
13. Telefacsimile
Signatures. This Agreement and any documents relating to it
may be executed and transmitted to any other Party by telefacsimile, which
telefacsimile shall be deemed to be, and utilized in all respects as, an
original, wet-inked document.
14. Date of
Execution. The Parties execute this Agreement as of the date
first above set forth.
15. Further
Cooperation. The Parties agree to cooperate with one another
to accomplish the purposes of this Settlement Agreement.
16. No
Assignment. The Parties agree that neither this Agreement, nor
any rights or obligations created hereunder, may be assigned or transferred
without the prior written consent of the Party or Parties affected, and any
attempt to do so without such consent shall be null and void.
XXX
CONSULTING, INC.
By: /s/
Xxxxx X. Xxxxxxxx
Xxxxx
Xxxxxxxx, CEO
BELMONT
PARTNERS, LLC
By: /s/
Xxxxxxxx Xxxxxxx
Xxxxxxxx
Xxxxxxx, General Counsel
