EXHIBIT 10.2
MUTUAL RELEASE AGREEMENT
This Mutual Release Agreement (the "Agreement") is entered into as of
June 5,2003, by and between Xxx Xxxxx, a California resident ("Dante") and
Kirshner International, Inc., a Delaware corporation ("KI; Dante and KI are
referred to collectively as the "Parties"), and is made with reference to the
following:
A. This Agreement is entered into in connection with the resignation
of Dante, as of the date hereof, as a Director of KI.
NOW, THEREFORE, in consideration of the foregoing, the respective
covenants and agreements herein contained, and in consideration of other good
and valuable consideration, each to the other, the sufficiency and receipt of
which is hereby acknowledged, the Parties hereby agree, covenant and consent
as follows:
1. Except with respect to the matters, rights and obligations specified in
Paragraph 2 hereof, the Parties, for themselves and on behalf of (as
applicable) their respective principals, officers, directors, shareholders,
partners, employees, trustees, trust beneficiaries, agents, representatives,
attorneys, administrators, executors, heirs, assigns,
predecessors-in-interest, successors-in-interest, and all other persons and
entities with whom any of the former have been, or are now, affiliated
(collectively, the "Releasing Parties"), hereby release and forever discharge
(a) each other, (b) each of their respective past and present principals,
officers, directors, shareholders, partners, employees, trustees, trust
beneficiaries, agents, representatives, attorneys, administrators, executors,
heirs, assigns, predecessors-in-interest, successors-in-interest, and all
other persons and entities with whom any of the former have been, or are now,
affiliated, and (c) each principal, officer, director, shareholder, partner,
employee, trustee, trust beneficiary, agent, representative, attorney,
administrator, executor, heir, assign, predecessor-in- interest or
successor-in-interest, and all other persons and entities with whom any of
the former have been, or are now, affiliated (collectively, the "Released
Parties"), from alt past, present and future claims, demands, obligations,
and causes of action of any nature whatsoever, whether in tort (including,
without limitation, acts of active negligence), contract or any other theory
of recovery in law, admiralty or equity, whether or not wrongful, whether for
compensatory or punitive damages, equitable relief or otherwise, and whether
now known or unknown, suspected or unsuspected, which are based upon or arise
out of or in connection with any matter, cause or thing existing at any time
prior to the date hereof, or anything done, omitted or suffered to be done or
omitted to be done at any time prior to the date hereof (collectively, except
as set forth in Paragraph 2 below, the "Released Matters").
2. Notwithstanding the foregoing, however, the following claims, demands,
obligations and causes of action are not released hereby;
(a) any claim of any Party against any other Party arising
from or related to any executory provision of this Agreement, and
(b) any claim against KI by Dante for indemnification to
which Dante may be entitled, whether pursuant to contract or applicable law.
3. Each Party hereby agrees, for itself and each of the other Releasing Parties
related to or affiliated with it that (a) neither it nor they will ever file,
commence, join in or in any manner further prosecute or enforce, or assert
any defense, offset or cross-claim with respect to, or otherwise assert,
defend or seek relief through, any lawsuit or action arising out of, based
upon or relating to any Released Matter and (b) if that Party or any such
other Releasing Party hereafter at any time voluntarily commences, joins in
or in any manner seeks relief through any proceeding or action arising out
of, based upon or relating to any such claims or in any manner asserts
against any Released Party any such claim, then that Party shall pay to the
affected Released Party, in addition to any other damages caused thereby to
such Released Party, all attorneys' fees incurred by such party in defending
or otherwise responding to said proceeding, action or assertion. The filing
or bringing by any Releasing Party of any claim, demand, obligation or cause
of action against any Released Party in connection with any Released Matter
shall constitute a breach of this Agreement
4. Without limiting the generality of the foregoing, the Parties expressly
release any and all past, present and future claims in connection with the
Released Matters, but which said parties do not know of or suspect to exist
in their favor, whether through ignorance, oversight error, negligence or
otherwise, and which, if known, would materially affect their decision to
enter into this Agreement, and to this end they and each of them, therefore,
waive all rights under Section 1542 of the Civil Code of California which
states in full as follows:
"A general release does not extend to claims which
the creditor does not know or suspect to exist in his favor
at the time of executing the release, which if known by him
must have materially affected his settlement with the
debtor."
5. The Parties represent, warrant and agree that in entering into this Agreement
they are not relying and have not relied upon any representation, promise or
statement made by anyone which is not recited, contained or embodied in this
Agreement. The Parties understand and expressly assume the risk that any fact
not recited, contained or embodied herein or therein may turn out hereafter
to be other than, different from or contrary to the facts now known to them
or believed by them to be true. Nevertheless, the Parties intend by this
Agreement and with the advice of their own independently selected counsel, to
release fully, finally and forever all Released Matters and agree that this
Agreement shall be effective in all respects notwithstanding any such
difference in facts and shall not be subject to termination, modification or
rescission by reason of any such difference in facts.
6. The Parties hereby represent and warrant that they have not heretofore
assigned or transferred or purported to assign or transfer to any person or
entity, whether by act operation of law or otherwise, all or any part of or
any interest in any claim, contention, demand or cause of action relating to
any Released Matters.
Each Party hereto agrees to indemnify and to hold harmless the Released
Parties against any claim, contention, demand, cause of action, obligation
and liability of any nature, character or description whatsoever, including
the payment of attorneys' fees and costs actually incurred, whether or not
litigation is commenced, which may be based upon or which may arise out of or
in connection with any such assignment or transfer or purported assignment or
transfer.
7. Neither the execution nor delivery of this Agreement by any Party, nor the
payment of any consideration by any Party incident to this Agreement, is an
admission of any wrongdoing whatsoever on the part of any Released Party.
8. Miscellaneous Provisions:
(a) This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective principals, officers, directors,
shareholders, partners, employees, trustees, trust beneficiaries, agents,
representatives, attorneys, administrators, executors, heirs, assigns,
predecessors-in-interest, successors-in-interest, and all other persons and
entities with whom any of the former have been, or are now, affiliated
(b) This Agreement constitutes and is intended to constitute the entire
agreement of the Parties concerning the subject matter hereof. No covenants,
agreements, representations or warranties of any kind whatsoever have been
made by any Party hereto, except as specifically set forth herein or therein.
All prior discussions and negotiations with respect to the subject matter
hereof and thereof are superseded by this Agreement.
(c) If any provision of this Agreement is determined by a court of
competent jurisdiction to be invalid or unenforceable, in whole or in part,
the remaining provisions, and any partially invalid or unenforceable
provisions, to the extent valid and enforceable, shall nevertheless be binding
and valid and enforceable. Notwithstanding the foregoing severability
provision, the Parties reserve the right to rescind this Agreement in the
event that a court of competent jurisdiction holds that a provision of this
Agreement is unenforceable, in whole or in part, provided that such
unenforceability constitutes a material failure of consideration for the
Parties entering into this Agreement.
(d) The Parties shall, from time to time, promptly execute and deliver
such further instruments, documents and papers and perform such further acts
as may be necessary or proper to carry out and effect the terms of this
Agreement.
(e) This Agreement may not be modified or terminated orally and no
modification, termination or waiver shall be valid unless in writing and
signed by all of the Parties.
(f) When necessary herein, all terms used in the singular shall apply to
the plural, and vice versa, and all terms used in the masculine shall apply to
the neuter and feminine genders, and vice versa.
(g) This Agreement shall be construed according to and governed by the
laws of the State of California.
IN WITNESS WHEREOF, the Parties have executed this Agreement as
of the date first set forth above.
/S/ Xxx Xxxxx
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XXX XXXXX
XXXXXXXX INTERNATIONAL, INC.
/s/ Xxxxxxx Xxxxxxxx
By: Xxxxxxx Xxxxxxxx
Its: CEO and President