GENERAL RELEASE (PARENT)
Exhibit
10.4
GENERAL
RELEASE (PARENT)
THIS
MUTUAL GENERAL RELEASE (this “Release”)
is
made as of October 20, 2006, by and among the Zone Mining Limited, a Nevada
corporation (“Parent”), ZM Acquisition Corp., a Delaware corporation and
wholly-owned subsidiary of Parent (“Merger Sub”), and Driveitaway, Inc., a
Delaware corporation (“DIA”), and Stonewell Partners LLP, a United Kingdom
limited liability company (“Stonewell”).
Preliminary
Statement
Reference
is hereby made to that certain: (i) Termination and Assignment and Assumption
Agreement (the “Termination Agreement”), dated October 20, 2006, by and among
Parent, Merger Sub, Driveitaway, Inc., a Delaware corporation (“DIA”), and
Trident; and (ii) Letter Agreement dated October 20, 2006 by and between Parent,
Merger Sub, DIA and Stonewell (the “Letter Agreement”), pursuant to which the
parties thereto agreed to terminate the Merger Agreement dated as of September
21, 2006 by and among the parties (the “Merger Agreement”). Pursuant to the
Termination Agreement, (i) Parent assigned all of its right, title and interest
in and to the Amended and Restated DIA Note to Trident and Trident acquired
all
of Parent’s rights under the Amended and Restated DIA Note in full and compete
satisfaction of any and all obligations of any kind or nature related to the
Trident Debt, (ii) Parent, Merger Sub and Trident have agreed to terminate
the
ZM Securities Purchase Agreement, the ZM Security Agreement and the
Subordination Agreement, and (iii) Trident has agreed to deliver for
cancellation the Parent Debenture and the Parent Warrant to Parent. As such,
Trident has agreed that Parent and Merger Sub shall have no further obligations
related to the Trident Debt, including, without limitation, under the ZM
Securities Purchase Agreement, the ZM Security Agreement, the Subordination
Agreement, the Parent Debenture, the Parent Warrant or the Amended and Restated
DIA Note. Pursuant to the Letter Agreement, Parent, Merger Sub, DIA and
Stonewell have agreed that the parties thereto shall have no further obligations
under the Merger Agreement. Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to such terms in the Termination
Agreement.
Release
NOW,
THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
and
intending to be legally bound, the undersigned hereby covenants and undertakes
as follows:
1. Release.
Each of
the undersigned, for itself and on behalf of its subsidiaries, directors,
officers, shareholders, affiliates, employees, agents, attorneys, accountants,
successors and assigns (for this purpose, the “Releasing
Party”),
does
hereby fully and irrevocably remise, release and forever discharge each of
the
other signatories hereto, and their respective subsidiaries, directors,
officers, shareholders, affiliates, employees, agents, attorneys, accountants,
successors and assigns (for this purpose, the “Released
Parties”),
of
and from any and all manner of claims, actions, causes of action, grievances,
liabilities, obligations, promises, damages, agreements, rights, debts and
expenses (including claims for attorneys' fees and costs), of every kind, either
in law or in equity, whether contingent, mature, known or unknown, or suspected
or unsuspected, including, without limitation, any claims arising under any
federal, state, local or municipal law, common law or statute, whether arising
in contract or in tort, and any claims arising under any other laws or
regulations of any nature whatsoever, that the Releasing Party ever had, now
has
or may have, for or by reason of any cause, matter or thing whatsoever, from
the
beginning of the world to the date hereof (collectively, “Pre-Closing
Claims”).
1
Each
of
the undersigned represents, warrants and covenants that it has not sold,
assigned, transferred, or otherwise conveyed to any other person or entity
all
or any portion of its rights, claims, demands, actions, or causes of action
herein released.
Each
of
the undersigned further agrees and covenants not to ▇▇▇ or to bring, or assign
to any third person, any claims or charges against any of the Released Parties
with respect to any matter covered by the release set forth in the previous
paragraph, and not to assert against any of the Released Parties any action,
grievance, suit, litigation or proceeding for any matter covered by the release
set forth in the previous paragraph.
2. Scope
of Release.
THE
RELEASE SET FORTH IN SECTION 1 IS INTENDED TO BE ENFORCEABLE AGAINST EACH OF
THE
UNDERSIGNEDS AND THE OTHER RELEASING PARTIES IN ACCORDANCE WITH THE EXPRESS
TERMS AND SCOPE THEREOF NOTWITHSTANDING ANY EXPRESS NEGLIGENCE RULE OR ANY
SIMILAR DIRECTIVE THAT WOULD PROHIBIT OR OTHERWISE LIMIT RELEASES BECAUSE OF
THE
SIMPLE OR GROSS NEGLIGENCE (WHETHER SOLE, CONCURRENT, ACTIVE OR PASSIVE) OR
OTHER FAULT OR STRICT LIABILITY OF ANY OF THE RELEASED PARTIES.
3. Construction.
The
release provisions set forth in Section 1 shall be construed as broadly as
may
be permitted by law to protect the Released Parties against litigation and
liability and, to effect this intent, each of the undersigned, on behalf of
the
undersigned and each of the other Releasing Parties, hereby agrees that the
language of this Release is to be strictly construed against it and in favor
of
release of the Released Parties, individually and collectively.
4. Competency.
Each of
the undersigned represents and warrants that it has the requisite power
(corporate or otherwise) and authority to execute, deliver and perform its
obligations under this Release. The execution and delivery of this Release
and
the actions contemplated hereby by each of the undersigned have been duly
authorized by its board of directors or authorized person, as the case may
be,
and all other necessary corporate or organizational action on the part of such
party, and no other corporate or organizational proceedings on the part of
such
party are necessary to authorize this Release or the actions contemplated
hereby. Each of the undersigned acknowledges that it fully comprehends and
understands all of the terms of this Release and their legal effects and has
had
the opportunity to consult with an attorney of the undersigned’s choice
regarding this Release.
5. Parties
in Interest.
This
Release is for the benefit of the Released Parties and shall be binding on
each
of the undersigned and each undersigned’s respective legal representatives and
the other Releasing Parties.
6. Governing
Law.
This
Release and the rights and obligations of the undersigned hereunder shall be
governed by and construed and enforced in accordance with the substantive laws
(but not the rules governing conflict of laws) of the Commonwealth of
Pennsylvania.
7. Amendment.
This
Release may not be clarified, modified, changed or amended except in writing
and
signed by each of the undersigned (or such undersigned’s duly authorized
representatives).
8. Severability.
If any
provision of this Release is held to be illegal, invalid or unenforceable under
present or future laws, that provision shall be severable and this Release
shall
be construed and enforced as if that illegal, invalid or unenforceable provision
never comprised a part hereof, and the remaining provisions hereof shall remain
in full force and effect and shall not be affected by the illegal, invalid
or
unenforceable provision, and there shall be added automatically as part of
this
Release a provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible and be legal, valid and
enforceable.
2
IN
WITNESS THEREOF, the undersigned has executed or caused to be duly executed
this
General Release as of the date first written above.
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DRIVEITAWAY,
INC.
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| By: | /s/ ▇▇▇▇▇ ▇▇▇▇ | |
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Name:
▇▇▇▇▇ ▇▇▇▇
Title:
Chairman
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| ZONE MINING LIMITED | ||
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| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ | |
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: President
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ZM
ACQUISITION CORP.
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| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ | |
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Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title:
President
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| STONEWELL PARTNERS LLP | ||
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| By: | /s/ ▇▇▇▇▇ ▇▇▇▇ | |
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Name:
▇▇▇▇▇ ▇▇▇▇
Title:
Managing Partner
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