SETTLEMENT AGREEMENT AND RELEASE
This
Settlement Agreement and Release (“Agreement”) is entered into as of December
31, 2005, by and between AMERICANA DISTRIBUTION, INC., a Colorado corporation,
("Americana"); ACTION MEDIA GROUP, LLC, a California limited liability company
("Action Media"); and XXXXXX X. XXXXXXXX, XXXXXXXX X. XXXXXX (“Xxxxxx”) and
XXXXX X. XXXXXX, individuals ("collectively referred to as the
“Members").
WHEREAS,
Americana, Action Media and the Members entered into that certain Asset Purchase
Agreement dated April 19, 2004 and the Amendment thereto dated March 25, 2005
(the Asset Purchase Agreement and Addendum shall be referred to as the
“Agreement”) whereby Americana acquired all of the assets (as defined in the
Agreement) of Action Media in consideration for the issuance of a total of
8,000,000 Americana shares to the Members and a Consulting Agreement of $37,500
paid to with Xxxxxxxx X. Xxxxxx.
WHEREAS,
the parties to the Agreement have mutually determined to terminate the
Agreement.
WHEREAS,
in order to settle all claims known or unknown between them, the parties have
agreed to settle and compromise all claims between them on the terms set forth
herein.
NOW,
THEREFORE, in
consideration of the promises, covenants and releases set forth below, the
parties do hereby promise, covenant and agree as follows:
1.
The
parties acknowledge that the consideration tendered and received herein, the
promises, undertakings, representations and releases made or given, and the
execution of this Agreement are in compromise and settlement of disputed claims.
The parties are willing to perform their obligations hereunder for the purpose
of resolving their differences. Nothing herein is intended, and nothing herein
shall be construed, as an admission of fault or liability on the part of any
party hereto.
2. Americana,
Action Media and the Members agree that the Agreement is hereby terminated
effective immediately and, other than as set forth in this Agreement, there
shall be no further obligations by any of the parties to another party.
3. The
Members agree to return to Americana treasury all unsold shares, from the
8,000,000 shares of Americana common stock issued pursuant to the Agreement.
The
Members shall be entitled to keep any proceeds generated from sales of any
portion of the 8,000,000 shares. Furthermore, Xxxxxxxx Xxxxxx shall be entitled
to keep the Consulting Fees paid pursuant to the Agreement.
4. Americana
shall transfer all of the assets received from Action Media pursuant to the
Agreement to Xxxxxxxx X. Xxxxxx or another entity as designated by the Members.
Included in this transfer are: all source code used to power the action sports
DVD rental service, Coreflix, ownership of the Coreflix brand, the URL
“Xxxxxxxx.xxx”, the entire library of DVD inventory for the Coreflix service,
all mailing envelopes and other items related to the day-to-day operations
of
the Coreflix service, and all hardware and equipment including any computers,
and other items.
5. Americana
agrees to assist and cooperate with Action Media with regard to the transfer
of
all assets described in Section 4, including transfer of source code to Xxxxxx’
server hosted with Zerolag Communications in El Segundo, California.
6. The
Members agree to assist and cooperate with the Company with regard to any
reasonable due diligence request or any other corporate matter that requires
information from them with regard to Americana’s previous ownership of the
Assets.
7. The
parties acknowledge that, in the course of their prior business relationship,
they have exchanged certain information with one another. The parties agree
that
each party is free to use, for any purpose whatsoever, any and all information
disclosed to him/it by any other party.
8. Action
Media and its Members shall have no liability for any unpaid taxes or any other
claims by customers of Coreflix during the period from April 19, 2004 through
the execution of this transaction. This includes sales tax, customer claims,
including credit card charge-backs, any unpaid invoices for inventory, etc.
Upon
execution of this Agreement, Action Media and its Members acquire no
liabilities.
9. Americana
and its officers, directors, shareholders, employees, trustees, agents,
attorneys, representatives, heirs, beneficiaries, successors and assigns, and
all other parties acting or purporting to act for or on behalf of Americana,
jointly and severally, hereby agrees to defend, indemnify and hold harmless
Action Media and the Members, and each of them, and their heirs, joint
venturers, partners, affiliates, parent corporations, subsidiaries, officers,
directors, agents, employees, shareholders, legal counsel, predecessors,
successors and assigns, from and against any and all liabilities,
responsibilities, damages, claims, causes of action, judgments, costs and
expenses, including without limitation attorneys’ fees and expert witness fees,
in connection with any claim related to the Agreement.
10. Except
as
to those duties and obligations set forth herein, Americana, its officers,
directors, shareholders, employees, trustees, agents, attorneys,
representatives, heirs, beneficiaries, successors and assigns, and all other
parties acting or purporting to act for or on behalf of Americana, hereby
unconditionally release and forever discharge Action Media and the Members,
and
each of them, and each of their heirs, joint venturers, partners, affiliates,
parent corporations, subsidiaries, officers, directors, agents, employees,
shareholders, legal counsel, predecessors, successors and assigns, of and from
any and all manner of actions, causes, causes of action, claims, liabilities,
suits, threats, contracts, controversies, torts, agreements, promises, damages,
judgments, execution of claims, and demands whatsoever in law or in equity,
known or unknown, suspected or unsuspected, which Americana, and each of them,
ever had, now has or may hereafter have against Action Media and the Members,
by
reason of any matter, cause or thing, whatsoever, including, without limitation,
any claims for unknown damages or injuries, or unknown consequences or
complications of known damages or injuries.
11. Action
Media and the Members, their officers, directors, shareholders, employees,
trustees, agents, attorneys, representatives, heirs, beneficiaries, successors
and assigns, and all other parties acting or purporting to act for or on behalf
of the Action Media and the Members jointly and severally, hereby agrees to
defend, indemnify and hold harmless Americana, and its joint venturers,
partners, affiliates, parent corporations, subsidiaries, officers, directors,
agents, employees, shareholders, legal counsel, predecessors, successors and
assigns, from and against any and all liabilities, responsibilities, damages,
claims, causes of action, judgments, costs and expenses, including without
limitation attorneys’ fees and expert witness fees, in connection with any claim
related to the Agreement.
12. Except
as
to those duties and obligations set forth herein, Action Media and the Members,
their officers, directors, shareholders, employees, trustees, agents, attorneys,
representatives, heirs, beneficiaries, successors and assigns, and all other
parties acting or purporting to act for or on behalf of Americana and each
of
them, hereby unconditionally release and forever discharge Americana and its
joint venturers, partners, affiliates, parent corporations, subsidiaries,
officers, directors, agents, employees, shareholders, legal counsel,
predecessors, successors and assigns, of and from any and all manner of actions,
causes, causes of action, claims, liabilities, suits, threats, contracts,
controversies, torts, agreements, promises, damages, judgments, execution of
claims, and demands whatsoever in law or in equity, known or unknown, suspected
or unsuspected, which Action Media and the Members, and each of them, ever
had,
now has or may hereafter have against Americana, by reason of any matter, cause
or thing, whatsoever, including, without limitation, any claims for unknown
damages or injuries, or unknown consequences or complications of known damages
or injuries.
13. Americana
represents and warrants to Action Media and the Members that the individual(s)
signing this Agreement has been duly authorized to sign the Agreement on behalf
of Americana, and Americana further represents and warrants that, upon
execution, this Agreement shall be valid, legally binding and enforceable
against Americana in accordance with its terms.
14. Action
Media and the Members each represent and warrant to Americana that the
individual(s) signing this Agreement have been duly authorized to sign this
Agreement on behalf of the respective entities, and Action Media and the Members
further represent and warrant that, upon execution, this Agreement shall be
valid, legally binding and enforceable against each of the Action Media and
the
Members in accordance with its terms.
15. This
Agreement shall be construed and interpreted as a whole and in accordance with
its fair meaning, and without regard to, or taking into account, any presumption
or other rule of law requiring construction or interpretation against the party
preparing this Agreement or any part hereof.
16. The
parties shall each bear their own expenses, legal costs and attorneys’ fees
incurred in connection with the negotiation and execution of this
Agreement.
17. This
Agreement contains the entire agreement and understanding of the parties
concerning the subject matter hereof. All prior and contemporaneous agreements,
representations, negotiations, and understandings of the parties, oral or
written, are merged herein and/or expressly declared void and are superseded
by
this Agreement. The parties warrant that no representations have been made
to or
relied upon by any party to induce the execution of this Agreement except as
set
forth herein.
18. This
Agreement, its application and interpretation, and all rights and obligations
of
the parties hereunder shall be governed by and construed exclusively in
accordance with the laws of the State of Colorado, excluding any choice of
law
rules which would apply the laws of another jurisdiction.
19. Any
disputes regarding this Agreement shall be exclusively resolved in the state
or
federal courts, as applicable, located in Colorado. Each party consents to
the
exclusive jurisdiction of such courts and agrees not to bring any action under
this Agreement except in Colorado.
20. This
Agreement may not be altered, modified or amended, except in writing signed
by
the party to be bound.
21. The
parties shall make, execute and deliver all such documents and perform all
such
acts from time to time, prior to and following the consummation of this
Agreement, to carry out the full intent and purpose of this
Agreement.
22. The
parties hereto each represent and warrant that they have read this Agreement,
understand its terms, have authority to enter into this Agreement, and intend
to
be legally bound thereby.
23. The
parties hereto each represent and warrant that they have been given an
opportunity to consult with an attorney regarding this settlement and the terms
of this Agreement.
24. This
Agreement may be executed in multiple counterparts, each of which shall be
an
original, and all of which shall constitute one and the same
agreement.
25. This
Agreement shall be effective only when it has been fully executed and delivered
by all of the parties hereto.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on this day
of
February , 2006.
AMERICANA
Distribution INC.
By:_____________________________
Its
_____________________________
ACTION
MEDIA GROUP, INC.
By:_____________________________
Its
_____________________________
By:______________________________ By:___________________________
XXXXXX
X.
XXXXXXXX XXXXXXXX
X. XXXXXX
By:______________________________
XXXXX
X.
XXXXXX