RELEASE AGREEMENT
This
Release Agreement (the
“Agreement”)
is
entered into and dated effective as of this 22nd
day
of
February, 2007 (the “Effective
Date”)
by and
among Frezer, Inc., a Nevada corporation (the “Company"),
Xxxxx
X. Xxxx, an adult resident of the State of California (“Koos”),
Xxxxx
X. Xxxxxxx, an adult resident of the State of California (“Pockett”),
Xxxxxxxx X’Xxxxx, an adult resident of the State of California (“X’Xxxxx”),
and
Bombardier Pacific Ventures, Inc., a Nevada corporation (“Bombardier”).
Koos,
Pockett, X’Xxxxx and Bombardier are referred to herein individually as the
“Principal”
and
collectively as the “Principals.”
RECITALS
X. Xxxx,
Pockett and X’Xxxxx have been the executive officers and directors of the
Company since inception.
X. Xxxx
controls and has sole dispositive power over the shares of the Company’s common
stock owned by Bombardier.
C. The
Company and KI Equity Partners IV, LLC, a Delaware limited liability company
(“KI
Equity”)
have
entered into a certain securities purchase agreement dated February 1, 2007
(“Purchase
Agreement”)
under
which, among other things, the Company will sell 63,900,000 shares of the
Company’s common stock to KI Equity for a purchase price of $639,000, or $0.01
per share, and KI Equity will purchase the such shares from the Company.
D. All
capitalized terms set forth in this Agreement (unless otherwise defined herein)
shall have the meaning ascribed to them in the Purchase Agreement.
E. As
a
condition to the Closing of the transactions contemplated under the Purchase
Agreement (“Closing”),
the
Principals have agreed to indemnity and hold the Company harmless from all
liabilities and obligations related to the period prior to Closing, pursuant
to
the terms and conditions set forth in a certain indemnity agreement
(“Indemnity
Agreement”).
F. As
a
further condition to the Closing of transactions contemplated under the Purchase
Agreement, Pockett, X’Xxxxx and Bombardier shall have completed the sale of
6,100,000 shares of the Company’s Common Stock, in the aggregate, to the Buyer
for a for an aggregate purchase price of $61,000, or $0.01 per share (the
“Stock
Transfer”).
G. As
a
condition to the Closing of the transactions contemplated under the Purchase
Agreement, the Buyer has required the Principals to terminate any and all
agreements and contracts with the Company and irrevocably release the Company
from any and all debts, liabilities and obligations, with the exception of
the
obligations under the Indemnity Agreement and certain obligations that are
paid
by the Company to the Principals at the Closing out of the proceeds of the
funds
held in the Escrow Account as specifically set forth on the Disbursement
Schedule, a copy of which is attached hereto and incorporated by reference.
AGREEMENTS
Now,
Therefore,
in
consideration of the above recitals, the following representations, warranties,
covenants and conditions, and other good and valuable consideration, the receipt
of which is acknowledged, the parties agree as follows:
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1. Termination
of Agreements.
On the
Effective Date, the Company and each of the Principals, for himself and on
behalf of his affiliates, family members and related persons, hereby: (i)
mutually terminate and cancel any and all agreements and contracts (whether
oral
or written) between the Company, on the one hand, and each of the Principals
and
their respective affiliates, family members and related persons, pertaining
to
any matters between such parties including, without limitation, matters in
the
Principals’ capacities as employees, consultants, officers and directors of the
Company, including, without limitation, any employment and consulting agreements
(“Company
Agreements”),
and
(ii) release each other from any further liability and obligations under the
Company Agreements. The provisions of this Section 1 shall not apply to the
obligations under the Indemnity Agreement and certain obligations that are
paid
by the Company to the Principals at the Closing out of the proceeds of the
funds
held in the Escrow Account as specifically set forth on the Disbursement
Schedule, a copy of which is attached hereto and incorporated by reference.
2. Waiver
and Release.
Each
Principal, for himself and on behalf of his affiliates, family members,
successors and related persons, hereby waives, and forever releases and
discharges the Company and its respective successors and assigns, and their
respective past and present officers and directors, employees, shareholders,
members, consultants, attorneys, accountants, other professionals, insurers,
agents and all other related entities, including, but not limited to, assigns,
predecessors, successors, controlling corporations, subsidiaries or other
affiliates (jointly, the “Related
Parties”)
from
all liabilities and obligations owed by the Company to each Principal, and
from
any and all claims, demands, and causes of action of every kind and nature,
including, without limitation, those relating to or arising out of any federal,
state or local laws, and common law, claims for advances or other loans to
the
Company, claims for unpaid salary, compensation, benefits or expense
reimbursement; provided, however, that nothing contained herein shall be
construed to limit in any way the rights of either party, and their successors
and assigns, to enforce the terms of this Agreement or the Indemnity Agreement.
The Principals irrevocably
agree to refrain from directly or indirectly asserting any claim or demand
or
commencing (or causing to be commenced) any suit, action, or proceeding of
any
kind, in any court or before any tribunal, against the Company and its Related
Parties based upon any released claim.
This
release shall not apply to the obligations under the Indemnity Agreement and
certain obligations that are paid by the Company to the Principals at the
Closing out of the proceeds of the funds held in the Escrow Account as
specifically set forth on the Disbursement Schedule, a copy of which is attached
hereto and incorporated by reference
3. Representations
and Warranties of the Company.
The
Company represents and warrants to the Company that: (i) on the date of this
Agreement, the Company has all necessary authority to execute this Agreement;
(ii) there is no claim, action, suit or other proceeding pending, threatened
or
known, which, if decided adversely, would interfere with the consummation of
the
transaction contemplated hereby; (iii) no approval or consent of any
governmental authority or third party is required for the Company to enter
into
or perform this Agreement; (iv) this Agreement is enforceable in accordance
with
its terms, subject to the laws of insolvency and general principles of equity;
and (v) this Agreement has been duly authorized and adopted by the
Company.
4. Representations
and Warranties of the Principals.
The
Principals represent and warrant to Company that: (i) on the date of this
Agreement, each of them has all necessary authority to execute this Agreement;
(ii) there is no claim, action, suit or other proceeding pending, threatened
or
known against them, which, if decided adversely, would interfere with the
consummation of the transaction contemplated hereby; (iii) no approval or
consent of any governmental authority or third party is required for the
Principals to enter into or perform this Agreement; and (iv) this Agreement
is
enforceable against the Principals in accordance with its terms, subject to
the
laws of insolvency and general principles of equity.
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5. Delivery
and Cooperation.
If
either party requires any further documentation, the other party will promptly
respond to any reasonable requests for additional documentation.
6. Miscellaneous.
(a) Successors
and Assigns.
This
Agreement shall be binding upon the parties hereto and their respective
successors and assigns.
(b) Survival
of Covenants and Representations.
All
agreements, covenants, representations and warranties made by the parties herein
shall survive the delivery of this Agreement.
(c) Severability.
Should
any part of this Agreement for any reason be declared invalid or unenforceable,
such decision will not affect the validity or enforceability of any remaining
portion, which remaining portion will remain in force and effect as if this
Agreement had been executed with the invalid portion thereof eliminated, and
it
is hereby declared as the intention of the parties hereto that the parties
would
have executed the remaining portion of this Agreement without including therein
any such part or portion that may, for any reason, be hereafter declared invalid
or unenforceable.
(d) Governing
Law and Venue.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Nevada, without reference to choice of law principles.
(e) Captions.
The
descriptive headings of the various Sections or parts of this Agreement are
for
convenience only and shall not affect the meaning or construction of any of
the
provisions hereof.
(f) Entire
Agreement.
This
Agreement constitutes the entire agreement among the parties hereto concerning
the subject matter contained herein, and supersedes all prior agreements or
understanding of the parties. No provision of this Agreement may be waived or
amended except in a writing signed by both parties. A waiver or amendment of
any
term or provision of this Agreement shall not be construed as a waiver or
amendment of any other term or provision.
(g) Counterparts.
This
Agreement may be executed by facsimile or electronic signatures and in multiple
counterparts, each of which shall be deemed an original. It shall not be
necessary that each party executes each counterpart, or that any one counterpart
be executed by more than one party so long as each party executes at least
one
counterpart.
(h) Arbitration.
All
disputes, controversies or claims (“Disputes”)
arising out of or relating to this Agreement shall in the first instance be
the
subject of a meeting between a representative of each party who has
decision-making authority with respect to the matter in question. Should the
meeting either not take place or not result in a resolution of the Dispute
within twenty (20) business days following notice of the Dispute to the other
party, then the Dispute shall be resolved in a binding arbitration proceeding
to
be held in San Diego, California in accordance with the international rules
of
the American Arbitration Association. The arbitrators may award attorneys’ fees
and other related arbitration expenses, as well as pre- and post-judgment
interest on any award of damages, to the prevailing party or parties, in their
sole discretion. The parties agree that a panel of three arbitrators shall
be
required, all of whom shall be fluent in the English language, and that the
arbitration proceeding shall be conducted entirely in the English language.
Any
award of the arbitrators shall be deemed confidential information for a minimum
period of five years.
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IN
WITNESS WHEREOF, this Agreement has been executed as of the date first written
above.
| FREZER, INC. | ||
| |
|
|
| By: | /s/ Xxxxx X. Xxxx | |
|
Xxxxx X. Xxxx, CEO |
||
| PRINCIPALS: | ||
| |
|
|
| /s/ Xxxxx X. Xxxx | ||
|
Xxxxx X. Xxxx, Individually |
||
| /s/ Xxxxx X. Xxxxxxx | ||
|
Xxxxx X. Xxxxxxx, Individually |
||
| /s/ Xxxxxxxx X’Xxxxx | ||
|
Xxxxxxxx X’Xxxxx, Individually |
||
|
Bombardier
Pacific Ventures, Inc.
|
||
| |
|
|
| By: | /s/ Xxxxx X. Xxxx | |
|
Xxxxx X. Xxxx, CEO |
||
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