EXHIBIT 10.69
RELEASE AGREEMENT
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PARTIES
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The parties to this Release Agreement (this "Release") are:
1.01. Xxxxxx X. Xxxxxxx (herein called "Xxxxxxx").
1.02. Xxxxx X. Xxxxxxx (herein called "Xxxxxxx").
1.03. House of Blues, Inc. (herein called "HOB").
1.04. House of Blues Brands Corp. (herein called "HOB Brands").
1.05. House of Blues Cambridge Restaurant Corp. (herein called "HOB
Cambridge").
DEFINITIONS
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2.01. "Correspondence" means (a) that certain letter, dated February 26,
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1993, from Xxxxxx Xxxxxxx, as counsel for Xxxxxx, to Xxxxxxx Xxxxxxx, as counsel
for the HOB Parties, and (b) that certain letter, dated April 19, 1993, from
Xxxxx Xxxxx, as counsel for Xxxxxxx, to Xxxxxxx Xxxxxxx, as counsel for the HOB
Parties.
2.02. "HOB Parties" means Xxxxxxx, HOB, HOB Brands and HOB Cambridge and
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their respective principals, past or present officers, directors, stockholders,
employees, attorneys, agents, representatives, subsidiaries, parents, heirs,
successors and affiliated or associated entities of whatever kind.
2.03. "Licensing Agreement" means that certain Licensing Agreement, dated
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February 18, 1992, by and among Xxxxxxx, Xxxxxx and Xxxxxxx.
2.04. "Marks" means "House of Blues," "Help Ever-Hurt Never," "Original
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Home of the Blues," "Blues Basement," "Blues is Better," "El Soul" and "Blue
Note."
2.05. "Xxxxxx" means Xxxxxx Xxxxxxx Xxxxxx.
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2.06. "Purchase Agreement" means that certain Class A Preferred Stock
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Purchase Agreement to be entered into between HOB and the Investors (as defined
therein) for the sale of shares of Class A Convertible Preferred Stock of HOB.
2.07. Except as otherwise defined herein, capitalized terms used in this
Release shall have the meanings set for the in the Licensing Agreement.
STATEMENT OF FACTS
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The parties stipulate and agree to the following facts:
3.01. Pursuant to the Licensing Agreement, the Owners have heretofore
granted to Xxxxxxx certain licenses to use the Property for certain specified
purposes, which licenses have been assigned to HOB Brands, with further
sublicenses to HOB and HOB Cambridge.
3.02. The Owners, through their counsel, have asserted certain claims
under the Licensing Agreement relating to use of the Marks by the HOB Parties.
3.03. As a condition to entering into the Purchase Agreement, certain of
the Investors (as defined in the Purchase Agreement) have required that such
claims be resolved.
3.04. Bona fide disputes and controversies exist among the parties to
this Release, both as to the fact and extent of liability, if any, and as to the
fact and extent of damages, if any. By reason of such disputes and
controversies, in order to induce the Investors to enter into the Purchase
Agreement and to avoid further trouble, litigation and expense, the parties to
this Release desire to settle such disputes and controversies.
In consideration of the foregoing, the agreements contained in this
Release, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
REPRESENTATIONS AND WARRANTIES
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The following representations and warranties shall survive the execution
of this Release and the completion of the settlement provided below.
4.01. Each party to this Release warrants and represents that it has
the power and authority to enter into this Release and that this Release and all
documents delivered in connection with this Release by such party, are valid,
binding and enforceable against such party.
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4.02. Each party of this Release warrants and represents that no
consent, approval, authorization or order of, and no notice to, or filing with
any court, governmental authority, person or entity (except any which may have
been obtained) is required for such party's execution, delivery and performance
of this Release.
4.03. Each party to this Release warrants and represents that it owns
the claims released by it in this Release (to the extent that such claims exist)
and that no part of the claims released in this Release has been assigned or
transferred to any other person or entity.
TERMS OF RELEASE
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5.01. Xxxxxxx hereby releases and forever discharges the HOB Parties
from any and all claims, demands, and causes of action of whatever kind or
character which Xxxxxxx has, or may have in the future, arising out of or
related to the matters asserted in the Correspondence, including, without
limitation: (a) any claim that the Marks, or any of them, were acquired by the
HOB Parties by reason of their use, conception and development of the Property;
(b) any claim that the Marks, or any of them, are a part, improvement, change,
derivation, addition or approximation to the Property or are deceptively
similar to the Property; (c) any claim that the Marks, or any of them, are the
property of or inure to the benefit of Xxxxxxx or that Xxxxxxx is entitled to
conveyance of the Marks, or any of them, to him pursuant to Section 2(b) of the
Licensing Agreement; (d) any claim that use of the Marks, or any of them, by
the HOB Parties creates an obligation to pay royalties to Xxxxxxx pursuant to
any of the royalty provisions contained in Exhibit A to the Licensing Agreement
other than paragraph (d) of Exhibit A; and (e) any claim that by virtue of
their use of the Marks, or any of them, the HOB Parties are engaging in a
business which incorporates a "blues" theme or concept and is competitive with
the Restaurants.
5.02. Xxxxxxx shall not participate or join in or consent to any
claim or cause of action asserted by Xxxxxx arising out of or related to
the matters asserted in the Correspondence.
MISCELLANEOUS
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6.01. This Release shall be governed and construed in accordance with
laws of the State of Delaware, except that any Delaware conflict of law rule
that may require reference to the laws of some other jurisdiction shall be
disregarded.
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6.02. The parties agree that this Release is entered into for settlement
purposes only in order to avoid further trouble, litigation and expense, and it
is further agreed that the parties do not admit liability or damages to each
other or anyone else, as the result of the claims released hereby.
6.03. If any provision of this Release is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remaining provisions
shall nevertheless survive and continue in full force and effect without
being impaired or invalidated in any way.
6.04. The parties expressly disclaim reliance on any facts or
representations made by the others if not contained in this Release. This
Release represents the entire agreement of the parties with respect to the
subject matter hereof, supersedes all prior written or oral agreements, and the
terms are contractual and not mere recitals.
6.05 This Release shall continue perpetually and shall be binding upon and
inure to the benefit of the respective heirs, successors and assigns of Xxxxxxx
and the HOB Parties.
6.06. This Release may not be amended, altered, modified or changed in any
way except in writing signed by all the parties to this Release.
6.07. EACH OF THE PARTIES HERETO EXPRESSLY WARRANTS THAT IT HAS CAREFULLY
READ THIS RELEASE, UNDERSTANDS ITS CONTENTS AND SIGNS THIS RELEASE AS ITS OWN
FREE ACT.
6.08. This Release may be executed in multiple counterparts and by the
separate parties hereto in different counterparts, which may be delivered by
facsimile transmission or any other means. Each of such counterparts shall be
deemed an original and all of such counterparts shall together constitute a
single agreement.
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IN WITNESS WHEREOF, each of the parties hereto has executed this Release as
of the 4th day of June, 1993.
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
HOUSE OF BLUES, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
President
HOUSE OF BLUES BRANDS CORP.
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
President
HOUSE OF BLUES CAMBRIDGE RESTAURANT
CORP.
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
President
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