TERMINATION,
SETTLEMENT & RELEASE OF CLAIMS AGREEMENT
This termination, settlement and release
of claims agreement (the “ Settlement Agreement
”) dated as of November 30, 2004 is entered into by
RAúL ENRIQUE
GRANILLO OCAMPO (“
RGO ”), NELIDA BARROS REYES DE GRANILLO
OCAMPO (“ NBR
”) and BODEGAS Y VIñEDOS ANGUINAN
S.A. (“ Anguinan
” and, together with RGO and NBR, the “ Granillo
Parties ”) on the one hand and KNIGHTSBRIDGE FINE WINES,
INC. (“ KFW
”), KFWBA
ACQUISITION CORP. (“
KFWBA ”) and RAUL MAROZOF (“ Marozof ” and, together with
KFW and KFWBA, the “ KFW Parties ”) on the
other. Capitalized terms used in this Settlement Agreement shall
have the meanings given to them in Section 18 of this Settlement
Agreement.
WHEREAS, the Parties to this Settlement
Agreement wish to fully and finally terminate the Agreements,
compromise all Claims, provide for a complete reciprocal release of
all Claims, provide for certain Settlement & Release Payments
to be made as consideration for such termination, settlement and
release of Claims and provide for a reciprocal
indemnity;
NOW, THEREFORE, in consideration of the
terms and conditions set forth herein, the Parties hereby agree as
follows:
Section 1. Termination of the
Agreements . The KFW
Parties and the Granillo Parties desire to terminate all of the
Agreements. Therefore, the KFW Parties and the Granillo
Parties hereby fully and finally terminate and extinguish all of
the Agreements.
Section 2. Complete Release of
Claims . The KFW Parties
and the Granillo Parties wish to release each other from any and
all the Claims. Therefore, the Granillo Parties hereby release and
forever discharge the KFW Related Parties and the KFW Parties
hereby release and forever discharge the Granillo Related Parties
from any and all Claims. The Granillo Parties and the KFW Parties
expressly state they have nothing else to claim against the KFW
Related Parties and the Granillo Related Parties,
respectively.
Section 3. Payment .
In consideration for the termination,
settlement and the releases contained herein, the following
payments (the “ Settlement & Release Payments
”) are made:
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a)
The Granillo Parties hereby transfer to
KFW and KFWBA, and KFW and KFWBA hereby accept, all of the KFW
Shares and Interests. The KFW Certificates are hereby received by
Raul Marozof in the name of KFW and KFWBA, being the present
sufficient proof of delivery and receipt of such KFW Certificates.
Marozof receives the KFW Certificates for custody purposes only and
agrees to deliver the KFW Certificates pursuant to the instructions
received by KFW and/or KFWBA.
b)
The KFW Parties hereby transfer to RGO
and NBR, in the proportions mentioned below, and RGO and NBR hereby
accept, all of the Anguinan Shares and Interests. The Anguinan
Certificates are hereby received by RGO and NBR, being the present
sufficient proof of delivery and receipt of such Anguinan
Certificates. The Anguinan Shares and Interests are transferred to
RGO and NBR in the following proportions: 95% of all Anguinan
Shares and Interests are transferred to RGO and 5% of all Anguinan
Shares and Interests are transferred to NBR. To that effect, the
KFW Parties hereby execute the letter attached to this Settlement
Agreement as Annex I through which they inform Anguinan of the
transfer of all of Anguinan Shares and Interests to RGO and NBR.
Except for the Settlement & Release
Payments, there shall be no further payment, reimbursement or other
consideration owed or payable by the KFW Parties to the Granillo
Related Parties or by the Granillo Parties to the KFW Related
Parties in relation to the matters covered by this Settlement
Agreement.
Section 4. Further Cooperation
. The KFW Parties and the
Granillo Parties hereby assume the irrevocable obligation to
cooperate, or to make the appropriate KFW Related Parties or
Granillo Related Parties, as the case may be, fully cooperate with
any Granillo Related Party or KFW Related Party, as the case may
be, for the purpose of giving effect to this Settlement Agreement.
The Parties also hereby commit to take any and all actions
necessary or required to fully implement this Settlement
Agreement.
Section 5. No Future Lawsuits or
Claims . Each of the
Parties agrees never to file, or to participate or assist in any
manner, in any lawsuit or claim asserting any claims that are
terminated, settled or released in this Settlement Agreement. The
Parties further agree that
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they shall take all appropriate actions
to impede any of the Granillo Related Parties and the KFW Related
Parties, as the case may be, to file, or participate or assist in
any manner, in any lawsuit or claim asserting any claims that are
terminated, settled or released in this Settlement
Agreement.
Section 6. Consequences of
Violation of Promises . If
any of the Parties breaches Section 5 of this Settlement Agreement
and a claim or lawsuit based on claims that were terminated,
settled or released in this Settlement Agreement is filed, such
party (i) shall pay as they accrue all costs incurred by the other,
including all expenses of investigation and attorney’s fees
incurred in defending against such claim, (ii) shall indemnify and
hold harmless the other party and its respective parents,
subsidiaries, related companies, Affiliates, divisions,
predecessors, successors, trustees in bankruptcy and assigns, past,
present and future and with respect to all such entities, their
shareholders, partners, officers, directors, agents, attorneys and
employees, past, present and future from any and all damages
resulting from such claim or lawsuit, and (iii) shall satisfy any
judgment resulting from or settlement of any such claim or
lawsuit.
Section 7. Non-Disparagement
. Each Party agrees not to
make any public statement, whether directly or through a third
party except, as required by law, which is or could be detrimental
in any material respect to the reputation or goodwill of the KFW
Related Parties or Granillo Related Parties.
Section 8. No Admission of
Liability . Nothing
contained in this Settlement Agreement, (including the payment of
the Settlement & Release Payments made pursuant to Section 3)
is intended as an admission or acknowledgement by any Party to the
validity of any of the claims, facts or rights asserted by any
other Party.
Section 9. Representations and
Warranties .
The Granillo Parties hereby represent and
warrant to KFW Parties as follows: (i) that each of them has taken
all necessary action, corporate or otherwise to authorize their
entering into this Settlement Agreement (ii) that this Settlement
Agreement constitutes a legal, valid and binding obligation
enforceable against each of them in accordance with its terms, and
(iii) that no portion of any Claim, right, demand, action, or cause
of action, or
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other matter released herein, nor any
portion of any recovery or settlement to which they might be
entitled from any of the KFW Related Parties has been assigned or
transferred to any other person or entity, in any manner, including
by way of subrogation or operation of law.
The KFW Parties hereby represent and
warrant to the Granillo Parties as follows: (i) that it has taken
all necessary action, corporate or otherwise to authorize its
entering into this agreement, (ii) that this Settlement Agreement
constitutes a legal, valid and binding obligation enforceable
against it in accordance with its terms, and (iii) that no portion
of any Claim, right,
