Attached files
Exhibit 10.6
This
binding Settlement and Release Agreement (the “Agreement”) is made as of
the last date set forth below (the “Effective Date”), by and
between Exactus, Inc. (the “Company”), Ceed2Med, LLC
(“C2M”), Vladislav (Bobby)
Yampolsky (“BY”) and Jamie Goldstein
(“JG”)
(hereinafter referred to from time to time collectively as the
“Parties” and individually as a
“Party”).
WHEREAS, on January 8, 2019 the Company
and C2M entered into a Master Product Development and Supply
Agreement with C2M (the “MPA”): and
WHEREAS, on July 31, 2019, the Company
and C2M entered into a Management and Services Agreement with C2M
(the “MSA”); and
WHEREAS, on or about September 17, 2019
the Company and Skybar Holdings, LLC and an affiliate of BY entered
into a lease agreement (the “Skybar Lease”);
and
WHEREAS, on October 23, 2019, the
Company and C2M amended the MSA to expand the scope of services
among other things; and
WHEREAS, on November 14, 2019, the
Company and C2M entered into a Supply and Distribution Agreement
(the “Supply
Agreement”, and together with the MPA, the MSA and the
Skybar Lease, each as amended from time to time, the
“Agreements”) pursuant to
which C2M agreed to purchase a minimum of 10,000 pounds of 2019
hemp flower harvest and the Company acquired an option to purchase
the distribution operations of C2M; and
WHEREAS, the Company issued 8,385,691
shares of its common stock, par value $0.0001 per share
(“Common
Stock”) to C2M (the “C2M Common”) in
consideration for the MPA; and
WHEREAS, the Company authorized and
issued 10,000 shares of its Series E 0% Convertible Redeemable
Preferred stock, par value $0.0001 per share (“Series E Preferred”), to
C2M (the ‘C2M
Preferred”) pursuant to a Certificate of Designation
therefore (the “COD”) in consideration
for the MSA; and
WHEREAS, the Company issued to certain
farming partners associated with Exactus One World. LLC
(“EOW”)
2,418,964 shares of Common Stock (the “EOW Shares”);
and
WHEREAS, C2M and BY assert they have
from time to time advanced sums to or on behalf of the Company (the
“Advances”) and is owed a
minimum of $495,000, which the Company disputes; and
WHEREAS, certain disputes have arisen in
connection with the Agreements and the relationship of the Parties,
EOW, advances and the performance of the Agreements related to,
among other things, product yields, management and oversight,
duties and responsibilities, quality, payment, deliveries and
services, rent and advances; and
WHEREAS, the Company and C2M have each
asserted the other is in breach of various agreements and
understandings; and ,
WHEREAS, the Parties wish to settle all
disputes as between them, whether known or unknown, in law or in
equity from the beginning of time to the date hereof.
NOW, THEREFORE, in consideration of the
mutual covenants contained herein and intending to be legally bound
hereby, the Parties agree as follows:
1.
The Parties hereby
agree to resolve and compromise the disputed claims of breach
and/or non- performance of the Agreements and the Company and C2M
agree that they shall withdraw all demands and execute this final
settlement agreement and release and hereby terminate all of the
Agreements with no further liability or obligation thereunder
except as set forth herein.
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2.
The Company and C2M
represent and warrant that there has been no assignment, transfer
or sale of any of their rights under the Agreements to any of their
affiliates, related entities, owners, members or controlling
persons, any entity owned or controlled in whole or in part by any
of the foregoing, or to any third party.
3.
In reliance upon
the Company’s and C2M’s claims and representations and
warranties in paragraph 2, but without conceding the validity of
the claims, and to effectuate the compromise and settlement
contemplated herein:
(a)
BY shall pay the
Company $100,000 no later than February 5, 2021 by wire transfer of
immediately available funds to an account designated by the
Company;
(b)
JG shall pay the
Company $100,000 no later than February 5, 2021 by wire transfer of
immediately available funds to an account designated by the
Company;
(c)
C2M hereby
voluntarily assigns and conveys and authorizes conversion to Common
Stock of all 10,000 shares of Series E Preferred owned by C2M and
instructs the Company’s transfer agent to assign and deliver
to such persons or entities as are designated by the representative
for the Company 6,250,000 shares of Common Stock as directed by the
Company Representative designated on Schedule A annexed hereto (the
“Company
Representative”), which Series shall thereupon be
transferred and upon transfer such Series E COD shall be cancelled
at the direction of the Company Representative, subject to the
issuance under Par 5 hereof; and
(d)
Company shall issue
to each of BY and JG 4,000,000 (8,000,000 total) shares of newly-
issued shares of restricted Common Stock.
4.
This Agreement is
intended to be binding upon the Parties. Upon the execution of this
Agreement, to the extent that they have not previously been
terminated the Agreements and all debts, claims and liabilities
between the Parties shall be terminated other than the obligation
to make the payments and issuances required herein.
5.
The Company hereby
transfers and assigns 2,000,000 shares of Common Stock as
contemplated in Par 2(c) hereof to BY in consideration of this
Agreement.
6.
Except for the
obligations undertaken herein, other than with respect to Excluded
Released Persons as defined below, the Parties hereby mutually
release each other, together with all of their respective officers,
directors, successors, assigns, affiliates, subsidiaries, agents
and employees, from any and all liabilities, charges, complaints,
claims, demands, causes of action, or suits at law or equity of
whatever kind or nature, known or unknown, which they may now have
or may hereafter have or assert based in whole or in part on any
manner or thing occurring prior to this date, including but not
limited to, any claims, obligations or duties arising from the
Agreements, and any claims that have been or could have been
asserted in any arbitration, court or tribunal, and any
counterclaims, crossclaims, defenses, or set offs the Company or
such released persons could assert against the other (the
“Mutual Release”). The Excluded Released Persons shall
mean Emiliano Aloi, the Company’s Chief Executive Officer and
Director, and Kenneth Puzder, the Company’s Chief Financial
Officer and Director.
7.
The Parties
acknowledge and agree on behalf of themselves and all of their
affiliated or related entities, subsidiaries, employees, agents,
representatives, owners and controlling persons that they
have no
right, title or interest to any ongoing business or operations,
purchase orders, contracts or other agreements or understandings of
the other. The Parties further agree on behalf of themselves and
all of their affiliated or related entities, subsidiaries,
employees, agents, representatives, owners and controlling persons
that they will not pursue any claims against any third parties
related to the other Parties’ agreements or properties and
will indemnify the other and its affiliates for cost and damages in
connection with any action, claim or proceeding to which the other
may become a part related to the matters herein.
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8.
The Parties agree
that except for the representations, warranties and covenants made
in this Agreement, and excluding only the Parties’
communications with their respective accountants, bankers, vendors,
investors, partners, joint venture parties, customers, legal
representatives and communications with regulatory, including but
not limited to the SEC, and tax authorities or as required by law,
no Party shall communicate with any third party or any media outlet
(or representative thereof) concerning this Agreement or the claims
made by the Parties, which led to this Agreement or this Agreement
itself or any fact or circumstances related to the same.
Notwithstanding anything to the contrary, The Company shall not
disclose the existence of this Agreement without the prior written
consent of the other Party.
9.
The Parties agree
that, unless required to do so by legal process, their officers and
directors and anyone affiliated with either of the Parties will not
make any public disparaging statements or representations, either
directly or indirectly, whether orally or in writing, by word or
gesture, to any person whatsoever, about the other Party or its
attorneys, representatives, affiliates, directors, officers,
employees, consultants or agents in connection with the subject
matter of this Agreement. For purposes of this paragraph a
disparaging statement or representation is any communication which,
if publicized to another, would cause or tend to cause the
recipient of the communication to question the business condition,
integrity, competence, morality, legality, good character, or
product quality of the person or entity to whom the communication
relates.
10.
This agreement will
be interpreted and governed by the internal laws of the State of
Florida without regard to conflicts of law rules. The exclusive
forum for the adjudication of any disputes arising under this
binding agreement or any of the Parties shall be the United States
District Court for the Southern District of Florida or, in the
event that the United States District Court for the Southern
District of Florida lacks subject-matter jurisdiction, the Circuit
Court of the State of Florida sitting in Palm Beach County. Each
Party accepts and consents to personal jurisdiction and waives any
objection to venue in the identified courts.
11.
The parties agree
to execute and deliver such other documents or agreements and to
take such other action as may be reasonably necessary or desirable
for the implementation of this Agreement and the consummation of
the transactions contemplated hereby.
12.
This Agreement
constitutes the entire agreement between the Parties with respect
to the subject matter hereof, and supersedes all prior discussions,
agreements, and understandings, both written and oral, between the
Parties with respect hereto. Except as explicitly set forth in this
Agreement, there are no representations, warranties, or
inducements, whether oral, written, expressed or implied, that in
any way affect or condition the validity of this Agreement or any
of its conditions or terms. All prior negotiations, oral or
written, are merged in this Agreement. No change or modification to
this Agreement shall be valid unless it is contained in writing and
signed by all of the Parties hereto.
13.
The Parties hereby
agree that the provisions of this Agreement, including, without
limitation, the representations, warranties, covenants,
indemnities, and releases made herein, shall survive the
execution of this
Agreement and the performance by the Parties of their respective
obligations under this Agreement.
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14.
If any provision in
this Agreement shall be adjudged void or unenforceable, the same
shall not affect the validity of this Agreement as a
whole.
15.
The Parties agree
that this Agreement reflects the joint drafting efforts of all
Parties. In the event any dispute, disagreement or controversy
arises regarding this Agreement, the Parties shall be considered
joint authors and no provision shall be interpreted against any
Party because of authorship.
16.
Any individual
signing this Agreement on behalf of an entity represents and
warrants that he or she has full authority to do so. The
signatories to this Agreement respectively warrant that they are
fully authorized to enter into this Agreement on behalf of their
respective entity or individual; that entities which are
corporations, partnerships or limited liability companies are duly
organized, validly existing and in good standing; and that the
making, execution and performance of this Agreement have been duly
approved by the entities’ governing bodies and do not violate
any provision of the entity’s respective articles of
incorporation, charters, by-laws, or partnership
agreements.
17.
Each Party hereto
acknowledges that it has been represented by independent legal
counsel in the preparation of the Agreement. Each party recognizes
and acknowledges that the Company has been represented by Harvey
Kesner, an attorney, as consultant and advisor and agrees and
acknowledges that none of the services shall be claimed to be the
provision of legal services, and separate counsel to the Parties
has represented such Parties in all legal matters contemplated
herein, including this Agreement, the releases herein and other
agreements, and in connection with various legal matters and the
Parties waive any conflicts of interest or other allegations that
it has not been represented by its own counsel and which could be
asserted to constitute malpractice. Company acknowledges and agrees
that it has not and will not rely upon such person for legal, tax,
accounting or similar professional advice.
18.
The Company
Representative is hereby granted an irrevocable power of attorney
to effectuate any and all transfers and assignments contemplated by
this Agreement and is acting in an administrative capacity and the
Parties agree he shall be indemnified and held harmless in respect
of all such acts and actions hereunder.
19.
This Agreement may
be executed in any number of counterparts (including facsimile or
PDF), each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
[SIGNATURE PAGE TO
FOLLOW]
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WHEREOF, the
Parties hereto have caused this Agreement to be executed as of the
date last set forth below.
|
Dated:
1/21/2021
|
EXACTUS,
INC.
By:
_____________________________
Name: Title:
|
|
Dated:
1/21/2021
|
CEED2MED,
LLC
By:
_____________________________
Name: Title:
|
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Dated:
1/21/2021
|
VLADISLAV
(BOBBY) YAMPOLSKY
|
|
Dated:
1/21/2021
|
JAMIE
GOLDSTEIN
|
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SCHEDULE A
Company
Representative – Andrew Johnson
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