MUTUAL RELEASE AGREEMENT
This MUTUAL RELEASE AGREEMENT (the "Agreement"), dated as of-----,
--------------------, 2003, is by and among HOMELIFE,INC., A NEVADA CORPORATION
("HomeLife"), XXXXXX XXXXXXXX ("Cimerman"), ANZA CAPITAL, INC., A NEVADA
CORPORATION ("Anza"), XXXXXXX XXXXXXXX ("Xxxxxxxx"), CRANSHIRE CAPITAL, L.P.
("Cranshire"), EURAM CAP STRAT. "A" FUND LIMITED ("Euram"), KEYWAY INVESTMENTS
LTD. ("Keyway"), and THE DOT COM FUND, LLC ("Dot Com"). HomeLife and Cimerman
shall sometimes be referred to herein as the "HomeLife Parties". Anza, Xxxxxxxx,
Cranshire, Euram, Keyway and Dot Com shall sometimes be referred to herein as
the "Anza Parties."
R E C I T A L S
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This Agreement is entered into with reference to the following facts:
A. The HomeLife Parties and the Anza Parties have entered into that
certain Reorganization Agreement (the "Reorganization Agreement").
B. The HomeLife Parties and the Anza Parties have concluded that the
transactions contemplated in the Reorganization Agreement
involving the acquisition of certain assets of HomeLife are not
in the best interest of the Parties.
C. As a result, the HomeLife Parties and the Anza Parties have agreed
to terminate the Reorganization Agreement and to provide a release
of legal claims, pursuant to the terms of this Agreement.
NOW, THEREFORE, in consideration of the covenants and promises
contained herein, and for other good and valuable consideration, the
existence and sufficiency of which is hereby acknowledged, the Parties
hereto agree as follows:
A G R E E M E N T
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1. Representations and Warranties.
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1.1 Authority. Each Party represents and warrants that the person
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signing this Agreement on behalf of the respective Parties has full power and
authority to cause such Party to enter into this Agreement on its behalf, and to
bind such Party to the terms hereof.
1.2 Ownership of Released Matters. The Parties hereby warrant and
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represent that they are the sole and lawful owners of all rights, title and
interests in and to all "Claims", as hereinafter defined, and that they have not
heretofore assigned or transferred or purported to assign or transfer to any
other person any released matters or any part or portion of any "Claims".
"Released Matters" as defined herein.
2. Mutual Release. Each of the HomeLife Parties on the one hand and
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each of the Anza Parties on the other hand, hereby expressly
release each other (including each party's directors, officers,
shareholders, assigns, employees, agents, predecessors and
attorneys) from any legal or equitable claims under or through
them, both past and present, from any and all manner of action or
actions, cause or causes of action, in law or in equity, suits,
debts, liens, contracts (express, implied in fact, or implied in
law), agreements, promises, liabilities, claims, set offs, rights
and claims for indemnity and/or contribution, refunds,
overpayments, demands, damages, losses, costs, or expenses, of
any nature whatsoever, known or unknown, suspected or
unsuspected, fixed or contingent, which each now has or may
hereafter have by reason of any matter, cause or thing whatsoever
from the beginning of time to the date hereof, including, but not
limited to those legal obligations set forth in the
Reorganization Agreement (the "Released Matters").
Each of the Parties hereto acknowledges that this is a release between
the HomeLife Parties and the Anza Parties.
3. CALIFORNIA CIVIL CODE SECTION 1542 WAIVER.
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THE PARTIES HEREBY EXPRESSLY WAIVE ALL RIGHTS UNDER THE PROVISIONS
OF Section 1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA AND ANY SIMILAR
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RIGHTS IN ANY STATE OR TERRITORY OR UNDER ANY SIMILAR STATUTE OR REGULATION
OF THE UNITED STATES OR ANY OF ITS AGENCIES. SECTION 1542 OF THIS CALIFORNIA
CIVIL CODE READS AS FOLLOWS:
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"A GENERAL RELEASE DOES NOT EXTEND TO THE 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."
4. Benefit and Burden.
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This Agreement shall be binding upon and shall inure to the benefit of
the Parties hereto and their representatives, successors, assigns, agents,
servants, employees, predecessors, assignors, officers, directors, shareholders,
partners, parent companies, subsidiary companies and affiliates.
5. Cooperation.
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The Parties hereto agree to execute, acknowledge and deliver such
further and additional instruments and documents as reasonably shall be required
or appropriate to implement, confirm or perfect the provisions and intentions of
this Agreement. The Parties further agree that they shall take no action to
report any Party to this Agreement for any actions taken in connection with the
operations of HomeLife or Anza to any governmental or quasi-governmental agency
or regulatory authority.
6. Waiver and Amendment.
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This Agreement may only be amended by a written agreement executed by
all of the Parties hereto.
7. Agreement of Confidentiality.
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HomeLife and the Anza Parties agree to hold all confidential or
proprietary information and/or trade secrets ("information") in trust and
confidence and agree that it shall have been used only for the contemplated
purpose of the agreement, and shall not be used for any other purpose or
disclosed to a third party. No unauthorized copies will be made or retained of
any written information supplied by either party.
8. Governing Law.
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This Agreement and any other documents referred to herein shall be
governed by, construed and enforced in accordance with the laws of the State of
California. Venue for any proceeding to construe or enforce this Agreement shall
be the Superior Court in and for the County of Orange.
9. No Admission.
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In entering into this Agreement, no Party herein is admitting the
sufficiency of any claims, allegations, assertions, contentions, or positions of
any other party, or the sufficiency of the defenses of such claims, allegations,
assertions, contentions, or positions.
10. Entire Agreement.
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All agreements, covenants, representatives and warranties, express and
implied, oral and written, of the Parties hereto concerning the subject matter
hereof are contained herein. No other agreements, covenants, representations or
warranties, express or implied, oral or written, have been made by any party
hereto to any other Party concerning the subject matter hereof. All prior and
contemporaneous conversations, negotiations, possible and alleged agreements,
representations, covenants and warranties concerning the subject matter hereto
are merged herein. This is an Integrated Agreement.
11. Construction.
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Each Party and counsel for each Party have reviewed and revised this
Agreement, and the normal rule of construction to the effect that any
ambiguities in this Agreement are to be resolved against the drafting party
shall not be employed in the interpretation of this Agreement.
12. Counterparts.
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This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, and will become effective and binding upon
the Parties at such time as all of the signatories hereto have signed a
counterpart of this Agreement. All counterparts so executed shall constitute one
Agreement binding on all Parties hereto, notwithstanding that all Parties hereto
shall sign a sufficient number of counterparts so that each Party will receive a
fully executed original of this Agreement.
13. Understanding.
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The Parties hereto, and each of them, represent, warrant and agree as
follows:
13.1. They have received independent legal advice from their attorneys
with respect to the advisability of making the settlement provided for herein
and in entering into this Agreement; and
13.2. They have made such investigation of the facts pertaining to the
settlement and the release of all matters pertaining hereto as they deem
necessary or desirable.
13.3. Each of the Parties hereto understands that he/she has been
advised to seek independent counsel regarding the legal ramifications of the
attached Agreement. The firm of Xxxxxxx and Cron has prepared the first draft of
this Agreement, but it hereby requests that all Parties hereto consult with
independent counsel regarding the terms of this Agreement.
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14. Voluntary Agreement.
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The Parties hereto, and each of them, further represent and declare
that they have carefully read this Agreement and know the contents thereof and
that they sign the same freely and voluntarily.
IN WITNESS WHEREOF, each of the Parties hereto has executed this
Agreement as of this -------- day of -------------------, 2003.
HOMELIFE, INC. XXXXXX XXXXXXXX, INDIVIDUALLY
By: /s/ Xxxxxx Xxxxxxxx /s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx Xxxxxx Xxxxxxxx, An Individual
Its: President
ANZA CAPITAL, INC. XXXXXXX XXXXXXXX, INDIVIDUALLY
By: /s/ Xxxxxxx Xxxxxxxx /s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx Xxxxxxx Xxxxxxxx, An Individual
Its: President . . . . . . . . .
CRANSHIRE CAPITAL, L.P. KEYWAY INVESTEMENTS, LTD.
By: /s/ signature unintelligible By: /s/ Xxxx Xxxxx
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Title: ------------------------------- Title: -------------------------
EURAM CAP STRAT. "A" FUND LIMITED THE DOT COM FUND LLC
By: /s/ Xxxx Xxxxx By: /s/ Xxxx Xxxx
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Title: ---------------------------- Title: --------------------------
