Exhibit 2
MUTUAL RESCISSION AGREEMENT
AND RELEASE OF ALL CLAIMS
This Mutual Exclusive Supplier Rescission Agreement and Release of all
Claims (hereinafter "Agreement") is made by and among Xxxxx Rolling, an
individual, Make Your Move, Inc., a Nevada corporation, and its assignees, and
Viscus Coffee International, Inc., Corporation, a Delaware corporation, Xxxxxxx
Xxxxxx , a unmarried man, (collectively the "parties"), with reference to the
following facts:
X. Xxxxx Rolling is an individual and a married man who is the CEO of Make
Your Move, Inc., a Nevada corporation.
B. Make Your Move, Inc. ("MYM") is a publicly owned Nevada corporation
located in Reno, Nevada. MYM originated as DCP, Limited, a Nevada limited
liability company, in 1996, and DCP Limited manufactured and distributed board
games. At the end of the calendar year 2000, MYM's CEO, Xxxxx Rolling, began to
explore the possibility of merging with, or entering into some other type of
business relationship with another business entity that could bring a "high
tech" element to game play.
C. Viscus Coffee International, Inc. is a Delaware corporation ("Viscus"),
located in 0000 Xxxxxxx Xxxxx Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000. Viscus is
engaged in the business of developing coffee shops, selling coffee and related
products under the "Viscus" name and xxxx.
D. Xxxxxxx Xxxxxx is an individual and an unmarried man who is the
replacement CEO of for Viscus.
E. In or about August, 2001, the principals of MYM and Viscus entered into
negotiations regarding a exclusive supplier agreement for future Viscus coffee
shops. A draft of an "Exclusive Supplier Agreement" was circulated and discussed
which set forth in detail the contemplated exclusive supplier agreement and
arrangement between MYM and Viscus, in which MYM would supply all of the
computers, monitors and related products and also provide the service for all
the high tech equipment associated with the Viscus coffee shops. The "Exclusive
Supplier Agreement " was never finalized or executed by the parties due to
Viscus failing to secure an agreement with Wal*Mart Stores, Inc.
F. Certain issues have arisen, such that the parties desire not to proceed
with the exclusive supplier agreement and the parties desire, through this
Agreement, to dissolve and rescind any agreements made between them during the
negotiations pertaining to the written "Exclusive Supplier Agreement." Through
this Agreement, the parties desire to rescind any relationship that may have
arisen between them, and to bring this entire matter to a final conclusion and
settlement to avoid incurring any further costs and expenses incident to the
above-described negotiations. Therefore, the parties each give their full,
complete, and Mutual Release of all Claims to the other, expressly recognizing
that by the making of this Agreement and by its execution, the parties do not
admit liability or wrongdoing of any kind on their part, or on the part of
anyone else.
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Based upon the foregoing, and for good and valuable consideration,
including, without limitation, the mutual promises and covenants contained
herein, the receipt and sufficiency of which is hereby acknowledged by each of
the parties, the parties agree as follows.
2. Incorporation of Recitals. The parties agree that the Recitals set forth
above are true and correct and are incorporated into this Agreement by
reference.
3. Rescission. Upon mutual execution of this Agreement by both parties
hereto, MYM and Viscus agree to completely dissolve, rescind and abrogate the
"Exclusive Supplier Agreement," any and all oral or verbal agreements or
understandings that may have been made between any of the parties hereto, or any
collateral written agreements that may have been made prior to the contemplated
"Exclusive Supplier Agreement."
4 Mutual Release. Xxxxx Rolling, MYM, Viscus and Xxxxxxx Xxxxxx, for and on
behalf of themselves, and their respective officers, directors, employees,
managers, affiliates, insurers, attorneys, successors, representatives,
contractors, agents, and assigns hereby fully, irrevocably, and unconditionally
forever mutually release and discharge each of the other parties hereto, and all
of their respective officers, directors, employees, managers, affiliates,
insurers, agents, attorneys, representatives, contractors, successors, and
assigns, and each of them, from and against any and all actions, causes of
action, claims, judgments, liabilities, obligations, claims for compensation,
demands, costs, fees, and expenses of whatever kind or nature, including,
without limitation, attorneys' fees and costs, whether known or unknown,
foreseen or unforseen, related in any way, directly or indirectly, to the
"Exclusive Supplier Agreement." Notwithstanding any other provision of this
Agreement, the releases contained herein shall not limit, affect, or apply to
any of the parties' obligations under this Agreement.
5. Return of Property. Each of the parties to this Agreement agrees to
return any stock certificates or any other tangible or intangible personal
property that was exchanged during negotiations over the ""Exclusive Supplier
Agreement," and to take whatever steps are necessary to return the stock
certificates or other property to the transferor.
6. Mutual Contribution. This Agreement has been drafted on the basis of
mutual contribution of language and is not to be construed against any parties
hereto as being the drafter or causing the same to be drafted.
7. Further Assurances. The parties agree to cooperate with one another with
respect to the completion of the transactions contemplated by this Agreement to
take such reasonable actions and execute such other documents as the other
party(ies) may reasonably require to carry out the intent of this Agreement.
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8. Covenant of Non-Disparagement. The parties hereby covenant and agree
that each shall not make, at any time or place, any disparaging remarks,
verbally or in writing, concerning any of the parties' actions or perceived
omissions, regarding any matter connected with the "Exclusive Supplier Agreement
" or otherwise take any action that would disparage or cast doubt upon the
business acumen or judgment of any other party. Each party understands and
acknowledges that each other party's business and reputation are of special,
unique, and extraordinary character, which gives them a particular value, the
loss of which cannot reasonably be compensated in damages in an action at law.
Accordingly, each party further agrees that in addition to any other rights or
remedies that any other party may possess at law, any aggrieved party shall be
entitled to injunctive and other equitable relief in order to prevent or remedy
a breach of the provisions of this Section 4. by any other party hereto.
9. No Assignment. The parties to this Agreement represent and warrant that
they or their affiliated persons or entities have not assigned or transferred
any claims or any interest therein or authorized any other person or entity to
assert any claim or claims on its or their behalf with respect to the subject
matter of this Agreement.
10. Comprehensive Nature of Agreement. The parties to this Agreement
understand and expressly agree that this Agreement is completely comprehensive,
and extends to all claims of every nature and kind whatsoever arising out of any
matter related to the "Exclusive Supplier Agreement", known or unknown, foreseen
or unforeseen, suspected or unsuspected, including, but not limited to, any and
all claims under Nevada or California or other states' statutes, common law, or
case law, or federal law, and any other claim of any type whatsoever.
11. Governing Law, Venue, and Jurisdiction. This Agreement and the legal
relations between the parties shall be governed by and construed in accordance
with the laws of the State of Nevada governing contracts made and to be
performed in that state, except insofar as the internal law of any other
political entity or jurisdiction shall specifically and mandatorily apply to any
of the transactions contemplated thereby. The parties hereby agree that all
litigation resulting under this Agreement shall be under the sole and exclusive
jurisdiction of the Second Judicial District Court in and for the County of
Washoe, State of Nevada, and the parties hereby submit to exclusive jurisdiction
and venue thereunder.
12. Counterparts and Facsimile Execution. This Agreement may be executed in
two (2) or more counterparts and via facsimile transmission, each of which shall
be deemed an original, but all of which together shall constitute one in the
same instrument. If the Agreement is executed via facsimile transmission the
party so executing the Agreement shall forward an original executed document to
the other parties as soon as possible.
13. Binding Effect. This Agreement and all provisions herein shall be
binding on and inure to the benefit and detriment of the parties and their
respective legal representatives, successors and assigns.
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14. Entire Agreement; Modification. This written Agreement represents and
contains the entire understanding between the parties hereto in connection with
the subject matter of this Agreement. This Agreement shall not be altered or
varied except in writing duly executed by the parties hereto affected. There are
no other agreements, restrictions, promises, warranties, covenants, or
undertakings, other than those expressly set forth or referred to herein. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to the subject matter.
15. Representation. The parties to this Agreement represent that they have
carefully read this Agreement and particularly its provisions that this is a
mutual full and complete release of all claims, that it has been fully explained
to each party by competent counsel of each party's own independent selection,
that each party fully understands its final and binding effect, that each party
needs no further time to consider this Agreement, that the only promises made to
induce each party to sign this Agreement are those stated hereinabove, and that
each party is signing this Agreement voluntarily and with the full intent that
this is a full and final settlement and mutual release of all claims with
covenant of non-disparagement.
16. Attorneys' Fees. The prevailing party in any proceeding brought to
interpret or enforce the provisions of this Agreement, or for damages for any
alleged breach, shall be entitled to an award of reasonable attorneys' fees and
costs incurred at both the trial and appellate levels incurred in enforcing its,
her or his rights hereunder.
17. Representation of Authority. Each individual executing this Agreement
on behalf of himself, herself, or limited liability company, corporation, or
other legal entity represents and warrants that he or she has all requisite
right, power, and authority to do so and to bind such person or entity to each
and all of the terms hereof.
18. Headings. The headings and captions of the sections and articles of
this Agreement are inserted for convenience only and shall not constitute a part
hereof.
Dated: November 17, 2001. By /s/ Xxxxx Rolling
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Xxxxx Rolling
Dated: November 17, 2001. Make Your Move, Inc.
A Nevada corporation
By /s/ Xxxxx Rolling
Name: Xxxxx Rolling
Title: President
Dated: November 17, 2001. Viscus Coffee International, Inc.,
A Delaware corporation
By/s/Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: President
Dated: November 17, 2001
Xxxxxxx Xxxxxx
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