MUTUAL RELEASE AGREEMENT
This
Mutual Release (the “Agreement”),
made
as of January 31, 2008, is effective as of the date on which FORGEHOUSE,
LLC,
a
limited liability company organized under the laws of Georgia (“FH”),
and
MILK
BOTTLE CARDS INC.,
a
corporation organized under the laws of Nevada (“Publico”;
collectively with FH, the “US
Parties”),
consummate a transaction of the nature referenced in Publico’s Preliminary
Schedule 14C, as filed with the Securities and Exchange Commission on December
17, 2007 (the “Effective
Date”)
and is
entered into by and among FH, Publico, Arngrove Group Holdings Ltd, a company
organized under the laws of England (“Arngrove”),
After
All Ltd., a private limited company governed by the laws of England
(“After
All”;
collectively, with Arngrove, the “Noteholders”),
and
Xxxx
Xxxxxxxxxxxx, a
citizen
of the United Kingdom, Xxxxx
Xxxxxx,
a
citizen of the United Kingdom, Xxxxxx
Xxxxxxx,
a
citizen of the United Kingdom, and Xxx
Xxxx,
a
citizen of the United Kingdom (collectively, the “Investors”;
collectively with the Noteholders, the “UK
Parties”).
In
consideration of the mutual promises and undertakings contained herein, and
for
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, the parties do agree as follows:
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1.
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General
Release by the UK Parties.
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Release
of Claims Against the US Released Parties.
Subject
to the last sentence of this Section
1,
each of
the UK Parties, severally, for themselves, their respective
executors, heirs, administrators, Affiliates, successors and assigns, and
guardians, and each of their respective past, present, and future officers,
directors, interest holders or stockholders, owners, employees, consultants,
agents, attorneys, and representatives and others acting for, on behalf of,
or
claiming by, through, or under any of the foregoing,
hereby
irrevocably and unconditionally release and forever discharge each of the US
Parties and their respective executors, heirs, administrators, Affiliates,
successors, assigns, and guardians, and each of their respective past, present,
and future officers, directors, interest holders or stockholders, owners,
employees, consultants, agents, attorneys, and representatives and others acting
for, on behalf of, or claiming by, through, or under any of the foregoing
(collectively, the “US
Released Parties”)
from,
and with respect to, any and all past, present or future claims, assessments,
charges, causes of action or actions, costs, damages, debts, demands, expenses,
fees (attorneys’ and other), lawsuits, rights to defense or indemnity,
liabilities, and obligations whatsoever (the “UK
Parties Claims”),
that
the UK Parties now have, ever had, or may in the future have, against the US
Released Parties, whether the same be at law, in equity, or mixed, whether
sounding in tort, in contract or otherwise, whether known or unknown, suspected
or unsuspected, now existing or which may arise hereafter, contingent,
liquidated or accrued, but in each case arising out of or related to, any
matter, cause, or event which has happened, developed, or occurred on or before
the Effective Date, including but not limited to all UK Parties Claims arising
out of, based on, pertaining to, or in any way related to or connected with
any
of the following: breach, partial performance, or non-performance of oral or
written contracts, misrepresentation, negligence, gross negligence, willful
misconduct, fraud, breaches of any covenant of good faith and fair dealing,
breaches of any fiduciary duty (whether of care, loyalty or otherwise), the
Membership Interests in FH, the UK Parties’ relationship with any of the US
Released Parties, or the offer, sale, or repurchase of the Interests,
the
Promissory Notes of FH in favor of the Noteholders or the changes in terms
to or
amendments of the Promissory Notes,
or
relating to, based upon or connected with any decision, conduct, action,
omission, or undertaking by any of the US Released Parties on or prior to the
Effective Date or any Legal Requirement of the United States or any state
thereof or of any other U.S. or non-U.S. jurisdiction affecting or relating
to
the offer, sale or repurchase of the Interests or the modifications or
amendments of the Promissory Notes that any of the UK Parties, as appropriate,
ever had, now have, or claim to have against the US Released Parties.
Notwithstanding the foregoing releases, none of the UK Parties waives any rights
or claims against any of the US Released Parties that may arise from any breach
of this Agreement by any of the US Parties. Further, notwithstanding the
foregoing releases, none of the Investors waives any rights or claims against
any of the US Released Parties that any of the Investors may have against any
of
the US Released Parties that may arise from any breach by any of the US Parties
of that certain Interest Purchase Agreement, dated as of the date hereof, by
and
among Publico and the Investors.
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2.
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General
Release by the US Parties.
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Release
of Claims Against the UK Released Parties.
Subject
to the last sentence of this Section
2,
each of
the US Parties, severally, for themselves, their respective executors, heirs,
administrators, Affiliates, successors and assigns, and guardians, and each
of
their respective past, present, and future officers, directors, interest holders
or stockholders, owners, employees, consultants, agents, attorneys, and
representatives and others acting for, on behalf of, or claiming by, through,
or
under any of the foregoing, hereby irrevocably and unconditionally release,
and
forever discharge each of the UK Parties and their respective executors, heirs,
administrators, Affiliates, successors, assigns, and guardians, and each of
their respective past, present, and future officers, directors, interest holders
or stockholders, owners, employees, consultants, agents, attorneys, and
representatives and others acting for, on behalf of, or claiming by, through,
or
under any of the foregoing (collectively, the “UK
Released Parties”)
from,
and with respect to, any and all past, present or future claims, assessments,
charges, causes of action or actions, costs, damages, debts, demands, expenses,
fees (attorneys’ and other), lawsuits, rights to defense or indemnity,
liabilities, and obligations whatsoever (“US
Parties Claims”)
that
the US Parties now have, ever had or may in the future have against the UK
Released Parties, whether the same be at law, in equity or mixed, whether
sounding in tort, in contract or otherwise, whether known or unknown, suspected
or unsuspected, now existing or which may arise hereafter, contingent,
liquidated, or accrued, but in each case arising out of or related to, any
matter, cause or event which has happened, developed or occurred on or before
the Effective Date, including but not limited to all US Parties Claims arising
out of, based on, pertaining to, in any way related to or connected with any
of
the following: breach, partial performance, or non-performance of oral or
written contracts, misrepresentation, negligence, gross negligence, willful
misconduct, fraud, breaches of any covenant of good faith and fair dealing,
breaches of any fiduciary duty (whether of care, loyalty or otherwise), the
Membership Interests in FH, the US Parties’ relationship with any of the UK
Released Parties FH, any other FH Releasees, or the offer, sale or repurchase
of
the Interests, the Promissory Notes of FH in favor of the Noteholders or the
changes in terms to or amendments of the Promissory Notes, or relating to,
based
upon or connected with any decision, conduct, action, omission or undertaking
by
any of the UK Released Parties on or prior to the Effective Date or any Legal
Requirement of the United States, or any state thereof or of any other U.S.
or non-U.S. jurisdiction affecting or relating to the offer, sale or repurchase
of the Interests or the modifications or amendments of the Promissory Notes
that
any of the US Parties, as appropriate, ever had, now has, or claims to have
against the UK Released Parties. Notwithstanding the foregoing releases, none
of
the US Parties waives any rights or claims against any of the UK Released
Parties that may arise from any breach of this Agreement by any of the UK
Parties. Further, notwithstanding the foregoing releases, none of the US Parties
waives any rights or claims against any of the Investors that any of the US
Parties may have against any of the Investors that may arise from any breach
by
any of the Investors of that certain Interest Purchase Agreement, dated as
of
the date hereof, by and among Publico and the Investors.
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3.
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Certain
Representations and
Warranties.
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(a) Volitional
Action; Knowing Waiver; No Reliance.
Each
party represents and warrants that: the execution of this Agreement is knowing
and voluntary, that such party has read this Agreement and fully understands
its
meaning and intent, has executed this Agreement without duress, coercion, or
undue influence exerted by or on behalf of any person or entity, and that such
party’s waivers and releases contained in this Agreement are made knowingly,
consciously, and with full appreciation that such party shall be forever
foreclosed from pursuing any of the rights so waived and released. Each party
further represents and warrants that the Claims waived and released by this
Agreement have been waived and released in exchange for consideration in
addition to anything of value to which such party is already entitled and that
such party has had an opportunity to consult with an attorney prior to execution
of this Agreement. Investors represent and warrant that they have not relied
upon any legal counsel for FH or Publico for any legal advice with respect
to
the terms of this Agreement, including the General Release contained herein,
or
any other matter for any purpose whatsoever.
(b) Ownership
of Released Claims.
Each
party hereby represents and warrants to the other party that such party is
the
sole and exclusive owner of the Claims being released by this Agreement (except
from and to the extent the releasing party attempts to effectuate a release
of
Claims by third parties not signatory to this Agreement), that the releasing
party has not conveyed or assigned any interest in such Claims to any person
or
entity, and, subject to the ability of the parties to release Claims by third
parties not signatory to this Agreement, that such Claims have been fully and
effectively released for all purposes. FH and Publico disclaim any
representation or warranty as to its power or authority to release Claims of
any
third party.
(c) Survival
of Representations, Warranties, and Covenants.
Each of
the representations, warranties, and covenants described in this Agreement
shall
survive the Effective Date and shall continue after the Effective Date in full
force and effect thereafter (subject to any applicable statute of
limitations).
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4.
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Miscellaneous.
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(a) Certain
Definitions.
“Affiliate”
means,
with respect to any specified natural person, such person’s relatives,
beneficiaries, spouse or ex-spouse, and as to any other specified person or
entity, any other person that, directly or indirectly, through one or more
intermediaries, controls, or is controlled by, or is under common control with,
such specified person. The term “control” means the possession, directly or
indirectly, of the power to direct or cause the direction of the actions,
management, or policies of a person or entity, whether through ownership of
voting securities, by contract or otherwise.
“Legal Requirement”
means
any federal, state, local, municipal, foreign, international, multinational,
or
administrative constitution, law, order, ordinance, principle of common law,
regulation, rule, statute, or treaty.
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(b) Entire
Agreement.
This
Agreement constitutes the entire agreement and understanding between the parties
and all previous discussions, undertakings, representations, promises,
negotiations and agreements with respect to the matters included in this
Agreement are merged into this Agreement. It is further agreed and understood
that this Agreement cannot be changed, altered or amended except in a subsequent
writing signed by each of the parties hereto.
(c) Choice
of Law; Jurisdiction; Venue.
It is
further understood and agreed that this Agreement shall be subject to and
construed in accordance with the laws of the State of Georgia without regard
to
conflict of law provisions and not of any other jurisdiction. Each party hereby
irrevocably (i) agrees that any legal suit, action, or proceeding arising
out of or based upon this Agreement or the transactions contemplated hereby
shall be instituted in any federal or state court sitting only in Atlanta,
Xxxxxx County, Georgia; (ii) waives, to the fullest extent permitted under
applicable law, any objections which it may now or hereafter have to the laying
of venue of any such proceeding or to the convenience of the forum; and
(iii) submits to the exclusive jurisdiction of any federal or state court
sitting in Atlanta, Xxxxxx County, Georgia, in any such suit, action or
proceeding.
(d) Severability.
Should
any provision of this Agreement be declared or determined by any court of
competent jurisdiction to be unenforceable or invalid for any reason, the
validity of the remaining parts, terms or provisions of this Agreement shall
not
be affected thereby, and the invalid or unenforceable part, term or provision
shall be deemed not to be a part of this Agreement.
(e) Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
constitute an original but all of which when taken together shall constitute
but
one agreement. Delivery of an executed counterpart of a signature page of this
Agreement by facsimile transmission or by electronic mail in the form of a
PDF
file shall be as effective as delivery of a manually executed counterpart of
this Agreement.
(f) Construction
and Interpretation.
The
headings to the various sections and subsections herein are for convenience
only
and have no legal effect. Should any provision of this Agreement require
judicial interpretation, the parties hereto agree that the court interpreting
or
construing the same shall not apply a presumption that the terms hereof shall
be
more strictly construed against one party by reason of the rule of construction
that a document is to be more strictly construed against the party that itself,
or through its agent, prepared the same, and it is expressly agreed and
acknowledged that FH, Publico, and Investors and their respective
representatives, legal and otherwise, have participated in the preparation
of
this Agreement.
(g) No
Admission.
This
Agreement shall not be used or construed by any person or entity as an admission
of liability, finding or admission that any party’s rights were in any way
violated by any other party and this Agreement may not be offered or received
in
evidence in any action or proceeding as an admission or concession of liability
or wrongdoing on the part of any party, except that this Agreement may be so
offered or received into evidence to enforce any rights of the parties under
this Agreement.
(h) Clarity.
Lastly,
as a matter of clarity and for the benefit of each of the US Released Parties,
notwithstanding the foregoing releases, none of the US Released Parties waives
any rights or claims against any of the US Released Parties that he, she, or
it
may have against any of the other US Released Parties that may arise from any
breach by any of the US Released Parties of that certain Exchange Agreement,
dated as of the date hereof, by and among certain members of FH and
Publico.
[Signatures
On Following Page]
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IN
WITNESS WHEREOF,
the
undersigned hereunto set their hands and seals on the date first written
above.
| FH: | FORGEHOUSE, LLC | |
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By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
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[PLEASE
PRINT]
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Its: Manager of TWE International, LLC, its
Manager
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| PUBLICO: | FORGEHOUSE, INC. formerly known as, | |
| MILK BOTTLE CARDS INC. | ||
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By: /s/ Alexander Man-Kit Ngan
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Name: Alexander Man-Kit Ngan
[PLEASE
PRINT]
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Its: Assistant Secretary
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| ARNGROVE: | ARNGROVE GROUP HOLDINGS LTD | |
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By: /s/ XX Xxxxxxx
Name: XX Xxxxxxx
[PLEASE
PRINT]
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| Its: Director | ||
| AFTER ALL: | ||
| AFTER ALL LTD. | ||
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By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
[PLEASE
PRINT]
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Its: Director
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| INVESTORS: | ||
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/s/ Xxxx Xxxxxxxxxxxx
Name: Xxxx
Xxxxxxxxxxxx
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/s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx |
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/s/
Xxxxxx Xxxxxxx
Name: Xxxxxx
Xxxxxxx
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/s/
Xxx Xxxx
Name: Xxx
Xxxx
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