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Exhibit 10.4
RELEASE
This RELEASE (this "Release") is dated as of February 28, 2001, among
Elektryon, a Nevada corporation (the "Company"), Xxxx X. Xxxxxxxxx ("Xxxxxxxxx")
and Xxxx X. Xxxxxxx ("Xxxxxxx" and, together with Xxxxxxxxx, the "Executives").
The parties hereto, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
hereby agree as follows:
1. Definitions. In addition to the other terms defined in this Release, as
used herein, the following terms shall have the following respective meanings:
(a) An "Affiliate" of any Person, or a Person "Affiliated with" a
Person, shall have the meaning ascribed to such term in the Voting Agreement.
(b) An "Associate" of a Person shall have the meaning ascribed to
such term in the Voting Agreement.
(c) "Common Stock" shall have the meaning ascribed to such term in
the Voting Agreement.
(d) "Concurrent Agreements" shall mean, collectively, the Separation
Agreement, the Voting Agreement, the Notes, the Pledge Agreements and the
Spousal Consents.
(e) "Control" shall have the meaning ascribed to such term in the
Voting Agreement.
(f) "Executive Person" shall mean each Executive, any member of such
Executive's Immediate Family, any Person any one of them (including an
Executive) Controls, and any of their respective Affiliates and Associates
(including, without limitation, such Executive's Affiliates and Associates).
(g) "Immediate Family" shall have the meaning ascribed to such term
in the Voting Agreement.
(h) "Notes" shall mean, collectively, (i) the Promissory Note, dated
the date hereof, executed and delivered by Xxxxxxxxx to the Company, and (ii)
the Promissory Note, dated the date hereof, executed and delivered by Xxxxxxx to
the Company.
(i) "Person" shall have the meaning ascribed to such term in the
Voting Agreement.
(j) "Pledge Agreements" shall mean, collectively, (i) the Pledge
Agreement, dated as of the date hereof, by Xxxxxxxxx in favor of the Company,
and (ii) the Pledge Agreement, dated as of the date hereof, by Xxxxxxx in favor
of the Company.
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(k) "Separation Agreement" shall mean the Separation and Release
Agreement, dated as of the date hereof, among the Company and the Executives.
(l) "Spousal Consents" shall mean the Spousal Consents, each dated
as of the date hereof, by Xxx. Xxxxxxxxx and Xxx. Xxxxxxx in favor of the
Company.
(m) "Voting Agreement" shall mean the Voting Agreement, dated as of
the date hereof, among the Executives, the Company and Xxxxxx Xxxxx.
2. General Release by the Company.
(a) In consideration of good and valuable consideration, including
the release by the Executives set forth in Section 3 hereof, effective on the
expiration of the 7-day revocation period set forth in Section 4 hereof, if such
Executive does not exercise his ADEA Revocation Right, the Company hereby
irrevocably and unconditionally releases, waives and forever discharges such
Executive from any and all actions, causes of action, claims, demands, damages,
rights, remedies and liabilities of whatsoever kind or character, in law or
equity, suspected or unsuspected, past or present, that it has ever had, may now
have or may later assert against such Executive, but specifically excluding any
action, cause of action, claim, demand, damage, right, remedy and liability (i)
arising after the date hereof, (ii) relating to any and all actions, causes of
action, claims, demands, damages, rights, remedies and liabilities the Company
may have against such Executive arising in connection with the repurchase by the
Company of shares of Common Stock held by such Executive during the period
commencing on January 1, 2000 and ending on August 30, 2000, (iii) arising under
the Assignment of Intellectual Property for Value, dated February 12, 1996, by
the Executives and Xxxxx X. Xxxxxxx in favor of the Company and any other
agreement or instrument of assignment or conveyance of property or assets,
including, without limitation, the real property located in Odessa, Texas, by
any of the Executives (or any other Executive Person) in favor of the Company
(or any subsidiary of the Company (each, a "Subsidiary")), or (iv) arising under
any of the Concurrent Agreements (collectively, but specifically excluding the
matters described in clauses (i) through (iv), the "Executive Claims").
Notwithstanding anything to the contrary contained herein, if an Executive
exercises his ADEA Revocation Right, this Section 2 (including Sections 2(a)
through 2(c)) shall be null and void ab initio and of no force or effect as to
such Executive.
(b) To the fullest extent permitted by law, the Company represents,
warrants and agrees effective on the date hereof that (i) it has not lodged and
will not, directly or indirectly, lodge any formal or informal complaint in any
forum in any jurisdiction arising out of or related to the Executive Claims and
(ii) it has not and will not assign any of the Executive Claims to any other
Person.
(c) To the fullest extent permitted by law, execution of this
Release by the Company operates as a complete bar and defense against any and
all of the Executive Claims against the Executives. If the Company should
hereafter make any of the Executive Claims in any
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proceeding against the Executives, this Release may be raised as and shall
constitute a complete bar to any such proceeding, and the Executives, shall be
entitled to and shall recover from the Company all costs incurred, including
attorneys' fees, in defending against any such proceeding.
3. General Release by the Executives.
(a) In consideration of good and valuable consideration, including
the release by the Company set forth in Section 2 hereof, effective on the
expiration of the 7-day revocation period set forth in Section 4, if such
Executive does not exercise his ADEA Revocation Right, such Executive, for
himself and his Executive Persons, hereby irrevocably and unconditionally
releases, waives and forever discharges the Company and each Subsidiary and
their respective past, present and future Affiliates, stockholders, officers,
directors, employees, agents and Controlling Persons, and the respective heirs,
administrators, successors and assigns of each of the foregoing (each, a
"Company Releasee"), jointly and individually, from any and all actions, causes
of action, claims, demands, damages, rights, remedies and liabilities of
whatsoever kind or character, in law or equity, suspected or unsuspected, past
or present, that he has ever had, may now have or may later assert against the
Company Releasees (or any of them), from the beginning of time, arising out of
or related to the Age Discrimination in Employment Act of 1967, as amended by,
inter alia, the Older Workers Benefit Protection Act of 1990 (the "ADEA")
(collectively, the "Claims").
(b) To the fullest extent permitted by law, each Executive
represents, warrants and agrees effective on the expiration of the 7-day
revocation period set forth in Section 4, if such Executive does not exercise
his ADEA Revocation Right, that (i) he has not lodged and will not, directly or
indirectly, lodge any formal or informal complaint in any forum in any
jurisdiction arising out of or related to the Claims and (ii) he has not and
will not assign any of the Claims to any other Person.
(c) To the fullest extent permitted by law, execution of this
Release by each Executive operates as a complete bar and defense against any and
all of the Claims against any of the Company Releasees. If either Executive
should hereafter make any of the Claims in any proceeding against any of the
Company Releasees, this Release may be raised as and shall constitute a complete
bar to any such proceeding, and the Company Releasees, or any of them, shall be
entitled to and shall recover from such Executive all costs incurred, including
attorneys' fees, in defending against any such proceeding.
(d) Notwithstanding anything to the contrary set forth in this
Section 3, with respect to Claims under the ADEA, this Section 3 shall only
become effective following the expiration of the 7-day revocation period set
forth in Section 4, if such Executive does not exercise his ADEA Revocation
Right.
4. Representation by Counsel; Revocation. This Release was drafted by the
Company and its counsel solely as a matter of convenience to the parties, and
shall not be construed for or against either party for that reason. The parties
acknowledge that they each have been afforded ample opportunity to review and
evaluate this Release prior to subscribing thereto and that they have been
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represented and assisted by counsel chosen by them for that purpose. The
Executives further acknowledge that they have been advised in writing to consult
counsel concerning this Release and they have consulted with counsel of their
choice. The parties acknowledge and agree that they enter into this Release
freely and voluntarily, without duress or coercion of any kind, and as an
informed and well-reasoned exercise of their respective business judgments. Each
Executive may revoke his agreement to release the Company from claims under the
ADEA pursuant to Section 3 of this Release by written notice given to the
Company within seven calendar days after the date on which this Release is
executed by such Executive (the "ADEA Revocation Right"); if an Executive
exercises his ADEA Revocation Right, his release set forth in Section 3 of this
Release (solely relating to Claims under the ADEA) and the Company's release and
other agreements set forth in Section 2 of this Release with respect to him
shall each be null and void ab initio and shall be of no force or effect, but
the remainder of this Release shall remain in full force and effect. Each
Executive acknowledges that he was offered at least 21 days to consider the
terms of this Release, and each Executive hereby waives the benefit of such
review period.
5. Severability. If any provision of this Release is held invalid or
unenforceable by any court of competent jurisdiction, the other provisions of
this Release will remain in full force and effect. Any provision of this Release
held invalid or unenforceable only in part or degree will remain in full force
and effect to the extent not held invalid or unenforceable.
6. Amendment; Governing Law; Jurisdiction. This Release may not be changed
except in a writing signed by the Person(s) against whose interest such change
shall operate. This Release shall be governed by and construed under the laws of
the State of Nevada without regard to principles of conflicts of law. In
addition, each of the parties hereto (a) consents to submit himself or itself to
the non-exclusive personal jurisdiction of any federal court located in the
State of Nevada or any Nevada state court in the event any dispute arises out of
this Release or any of the transactions contemplated by this Release, and (b)
agrees that he or it will not attempt to deny or defeat such non-exclusive
personal jurisdiction by motion or other request for leave from any such court.
7. Several Rights. If both Executives exercise their ADEA Revocation
Right, then this Release shall be deemed null and void ab initio. If only one
Executive exercises his ADEA Revocation Right, then this Release shall be deemed
to be null and void ab initio only as to that Executive and shall continue in
full force and effect as to the other Executive. Nothing in this Release,
whether it continues as to either or both Executive(s) or is deemed to be null
and void ab initio as to one or both Executives, shall affect any of the rights
and obligations of the Company and each Executive under the Concurrent
Agreements.
8. Counterparts. This Release may be executed in two or more counterparts,
each of which shall be deemed an original and all of which, when taken together,
shall constitute one and the same agreement. The parties agree that a facsimile
signature is as effective as an original signature.
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IN WITNESS WHEREOF, each of the undersigned has executed and delivered this
Release as of this ___ day of February, 2001.
ELEKTRYON
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: President
/s/ Xxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxxxxx
/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
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