TERMINATION AND RELEASE AGREEMENT
THIS TERMINATION AGREEMENT ("Agreement") is dated and effective this
7th day of April, 2006 ("Effective Date") by and between Xxxxx Xxxxxxxx
("Xxxxxxxx") and Liberty Diversified Holdings, Inc., a California
corporation ("Liberty"). Liberty and Xxxxxxxx shall sometimes be referred
to individually as the "Party" and collectively as the "Parties."
RECITALS
A. Liberty and Xxxxxxxx, as purchaser and seller respectively, have
engaged in a series of transactions for the purchase and sale of Peaceful
Feet, Inc., a Georgia corporation, pursuant to a written purchase agreement
and securities purchase agreement, each dated and effective as of August
30th 2005 ("Purchase Agreements").
B. Neither of the Parties has performed pursuant to the Purchase
Agreements.
C. The Parties desire to cancel and rescind the Purchase Agreements,
terminate their business relationship, and extinguish any and all
obligations each Party has in relation to the other Party.
TERMINATION
1. Termination. In consideration of (1) the forfeiture by Liberty
of delivery of 100% of the issued and outstanding stock of Peaceful Feet,
Inc. in accordance with the Purchase Agreements and (2) Xxxxxxxx'
forfeiture of any and all payments, in the form of preferred stock of
Liberty, as contemplated by the Purchase Agreements, the Parties hereby
agree to terminate, rescind and cancel the Purchase Agreements as of the
date first set forth above, and the parties thereto shall have no further
rights or obligations thereunder.
2. Release by Liberty. Except as to the obligations created by this
Agreement, Liberty, on behalf of itself and its subsidiaries, affiliates,
officers, directors, shareholders, representatives, agents, employees,
consultants, accountants, attorneys, and each of their successors, and
assigns, and all others claiming by or through or associated in any respect
with any of the foregoing (collectively, the "ALiberty Group"), hereby
releases, remises and forever discharges Xxxxxxxx, Peaceful Feet, Inc. and
its subsidiaries, affiliates, officers, directors, shareholders,
representatives, agents, employees, consultants, accountants, attorneys,
and each of their successors and assigns, and all others claiming by or
through or associated in any respect with any of the foregoing
(collectively, the "AWilliams Group") from any and all, and hereby waives
any and all, claims, demands, liabilities, damages, costs, expenses,
responsibilities, and causes or rights of action of any kind, type or
nature, past and present, including unknown claims that might presently
exist, accrued or yet to accrue, which the Liberty Group may possess,
acquire, or otherwise have or obtain against the Xxxxxxxx Group, arising
out of, in connection with or otherwise related to (i) the Purchase
Agreements; and (ii) all aspects of the Parties= dealing and relation with
respect to each other prior to the Effective Date, including by way of
example and not limitation, statements made to third parties; fiduciary
claims; contract claims; tort claims; demands, causes of action, judgments,
debts, liabilities, or other obligations of any kind or nature, whether
known or unknown, accrued or unaccrued, existing as of the date of this
Agreement, with the intent that this release, waiver and discharge be a
general release, waiver and discharge.
3. Release by Xxxxxxxx. Except as to the obligations created by
this Agreement, the Xxxxxxxx Group hereby releases, remises and forever
discharges the Liberty Group from any and all, and hereby waives any and
all, claims, demands, liabilities, damages, costs, expenses,
responsibilities, and causes or rights of action of any kind, type or
nature, past and present, including unknown claims that might presently
exist, accrued or yet to accrue, which the Xxxxxxxx Group may possess,
acquire, or otherwise have or obtain against the Liberty Group, arising out
of, in connection with or otherwise related to (i) the Purchase Agreements;
and (ii) all aspects of the Parties= dealings and relation with respect to
each other prior to the Effective Date, including by way of example and not
limitation, statements made to third parties; fiduciary claims; contract
claims; tort claims; demands, causes of action, judgments, debts,
liabilities, or other obligations of any kind or nature, whether known or
unknown, accrued or unaccrued, existing as of the date of this Agreement,
with the intent that this release, waiver and discharge be a general
release, waiver and discharge.
4. Waiver. The Parties each acknowledge that the release of claims
under this Agreement covers any and all rights and benefits each Party and
its affiliated companies, partners, executors, administrators, agents,
servants, stockholders, officers, directors, employees, representatives,
assigns, successors, and predecessors have or may have in the future,
whether known or unknown, and the Liberty Group and the Xxxxxxxx Group
waive any rights under the laws of any state (expressly including but not
limited to Section 1542 of the California Civil Code) as follows (or which
is substantially similar in wording or effect):
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THIS TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT
WITH THE DEBTOR.
5. Binding Effect. This Agreement shall be binding on and inure to
the benefit of the parties hereto and their respective successors and
assigns.
6. Governing Law. The validity, construction and enforceability of
this Agreement shall be governed by the laws of the State of California,
without giving effect to conflict of laws principles thereof. Each of the
Parties to this Agreement irrevocably consents to any suit, action, or
proceeding with respect to this Agreement being brought in any court of
competent jurisdiction located in Orange County, California.
7. Integration. This Agreement incorporates the complete and entire
agreement among the parties with reference to the subject matter thereof,
and there are no other oral agreements, understandings, or representations
or warranties, express or implied, between the Parties. No modification,
waiver, or amendment of this Agreement shall be binding on the Parties
unless executed in writing by both Parties.
8. Attorneys' Fees. In the event of any litigation or arbitration
to enforce the terms of this Agreement, the prevailing party in the
litigation or arbitration is entitled to recover from the other Party the
prevailing Party=s costs of litigation or arbitration, including without
limitation reasonable attorneys= fees.
9. Further Assurances. Each Party agrees to do all acts and things
and to make, execute, and deliver such written instruments as shall be
reasonable necessary to carry out the terms and provisions of this
Agreement.
10. Counterparts. This Agreement may be executed in counterparts,
each of which when so executed will be deemed an original and all of which
taken together will constitute but one and the same instrument.
11. Independent Counsel. The Parties hereby acknowledge and agree
that they
have had the opportunity to have this Agreement reviewed by their own
independent counsel and therefore agree that this Agreement shall be deemed
to have been jointly drafted and shall not be construed in favor or against
either Party.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on
the date first written above.
LIBERTY DIVERSIFIED HOLDINGS, INC.
By: _________________________________
Xxxxxx X. Xxxxxxxx, CEO
XXXXX XXXXXXXX
By: _________________________________
Xxxxx Xxxxxxxx, an individual
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