EXHIBIT 10.25
TERMINATION AND RELEASE
This TERMINATION AND RELEASE (this "Agreement") is made as of the date set
forth below (the "Effective Date") by and between Xxxx.xxx LLC, a Delaware
limited liability company ("Xxxx.xxx") and the person or entity named below
("Company").
WHEREAS, Xxxx.xxx has informed Company that Xxxx.xxx intends to cease
operations; and Xxxx.xxx and Company desire to enter into this Agreement to
terminate any and all rights and obligations existing between them on the terms
set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. All Prior Agreements Terminated. The following agreements between the
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parties, including the termination of any and all survival provisions contained
in the agreements, are hereby terminated:
Agreement Name Date
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Vstream Services Agreement (to the extent assigned by
At Home Corporation to Xxxx.xxx) November 17, 1999
Letter Amendment to Services Agreement December 14, 2000
Collaboration Services Subscription December 14, 2000
2. Payments. As consideration for the termination of the agreements listed
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above and the release provided for below, (a) the Promotion Fees due by Company
in the Letter Amendment to Services Agreement dated December 14, 2000 (attached
hereto as Exhibit A) is reduced by $150,000 and (b) Xxxx.xxx will pay Company
the amount of $55,000 as final payment of all services rendered by Company to
Xxxx.xxx. These payments serve as satisfaction of all amounts owing by either
party to the other.
3. Customer Acquisition. Company may solicit any Xxxx.xxx customers that used
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Company services pursuant to the Agreements set forth above without any
obligations to Xxxx.xxx.
4. Release.
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4.1 Upon satisfaction of the payment obligations set forth in Section 2 above,
each of Xxxx.xxx and Company (together the "Parties Hereto"), each for
themselves and their respective legal successors and assigns, releases and
absolutely and forever discharges each other, and their respective shareholders,
officers, directors, employees, agents, attorneys, parents, divisions,
subsidiaries, affiliates, legal successors and assigns (including in accordance
with Section 1541 of the Civil Code of the State of California) of and from all
claims, liabilities, damages, debts, accounts, reckonings, obligations, costs,
expenses, liens, demands and causes of action of every kind and nature
whatsoever, whether now known or unknown, suspected or unsuspected, which they
may now have, own or hold at any time heretofore ever had, owned or held or
could, shall or may hereafter have, own or hold against one another based upon
or arising out of the Agreement, any of the terminated agreements listed above
or any other agreement by and between the Parties Hereto entered into prior to
the date hereof (all of which are hereinafter referred to as and included with
the "Released Matters").
4.2 It is the intention of the parties in executing this Agreement and in
exchanging the consideration called for by this Agreement that this Agreement
shall be effective as a termination of all of the agreements set forth in
Paragraph 1 ("All Prior Agreements Terminated"), and as a full and final accord
and satisfaction and general release of and from all Released Matters.
4.3 Further, each of the Parties Hereto acknowledges that it is familiar with
the protections afforded by (i) Section 1542 of the Civil Code of the State of
California, which provides that "[a] general release
does not extend to 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" and (ii) any similar
provision of the laws of any other applicable jurisdiction.
4.4 Each of the Parties Hereto hereby waives and relinquishes any right or
benefit which it has or may have under Section 1542 of the Civil Code of the
State of California or any similar provision of the statutory or nonstatutory
law of any other jurisdiction to the full extent that it may lawfully waive all
such rights and benefits pertaining to the subject matter of this Agreement. In
connection with such waiver and relinquishment, each of the Parties Hereto
acknowledges that it is aware that its attorneys or accountants may hereafter
discover claims or facts in addition to or different from those which the
Parties Hereto now knows or believes to exist with respect to the subject matter
of this Agreement, but that it is the intention of the Parties Hereto to fully,
finally and forever settle and release all of the Released Matters which now
exist, may exist or heretofore have existed between them, except as otherwise
expressly provided. In furtherance of this intention, the release herein given
shall be and remain in effect as a full and complete release notwithstanding the
discovery or existence of any such additional or different claim or fact.
4.5 The Parties Hereto each warrant and represent to the other that it is the
sole and lawful owner of all right, title and interest in and to all of the
respective Released Matters and that it has not heretofore voluntarily, by
operation of law or otherwise, assigned or transferred or purported to assign or
transfer to any person or entity any Released Matter or any part or portion
thereof.
4.6 The Parties Hereto acknowledge that they have each consulted with an
attorney prior to signing this Agreement and that it is giving up any legal
claims that they have against the other by signing it. The Parties Hereto
acknowledge that they are signing this Agreement knowingly, willingly and
voluntarily in exchange for the obligations of the other described in this
Agreement.
5. General. This Agreement constitutes the entire agreement and understanding
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between the Parties Hereto with respect to the subject matter hereof and
supersedes all express or implied, written or oral, agreements, representations
and conditions, prior to or contemporaneous with the effective date of this
Agreement, between the Parties Hereto with respect thereto, including but not
limited to any prior proposals, waivers, accords or concessions. This Agreement
may only be modified or amended by a written instrument signed by the parties.
This Agreement will be governed and construed in accordance with the laws of the
State of California (without giving effect to the conflicts of laws provisions
thereof).
IN WITNESS WHEREOF, authorized representatives of the parties have executed
this Agreement as of the date set forth below.
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Company Name: Evoke Communications Xxxx.xxx LLC,
Address: 0000 Xxxxxxx Xxxxx By: Xxxx.xxx Inc., its managing member
Xxxxxxxxxx, XX 00000
By: By:
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Name: Name: Xxxx xxx Xxxxxxxxxx
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Title: Title: SVP, Business Development & Operations
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Effective Date: March 16, 2001
EXHIBIT A
December 14, 2000
Xx. Xxx Xxxxxxxxx
Chairman and CEO
Xxxx.xxx LLC
000 Xxxxxxxx
Xxxxxxx Xxxx, XX 00000
Dear Don:
At Home Corporation ("Excite@Home") has transferred to Xxxx.xxx LLC
("Xxxx.xxx") certain rights and obligations under the November 17, 1999 Vstream
Services Agreement, by and between Excite@Home and Evoke Communications, Inc.
("Evoke" formerly known as Vstream, Inc.) (the "Agreement"). Pursuant to a
letter agreement dated April 26, 2000, Evoke has consented to such transfer.
Such transferred rights and obligations are those with respect to the (i)
business portal site previously maintained by Excite@Home at xxx.xxxx.xxx; and
(ii) the Excite Business Channel as set forth in the Agreement ("Assigned
Provisions").
Xxxx.xxx and Evoke now wish to amend the Assigned Provisions ("Amendment") as of
December 14, 2000 ("Effective Date") as follows:
1. Term - The Term of the Assigned Provisions is hereby extended to two years
from the Effective Date of this Amendment.
2. Promotional Campaigns - Xxxx.xxx will perform promotional campaigns for
Evoke Webconferencing and Collaboration Services currently available at
xxxx://xxxxxxxxxxxxx.xxxx.xxx ("Co-Branded Core Services"). The parties
will mutually agree upon the promotional content for the following
promotions:
a) During the Fourth Quarter of calendar year 2000, Xxxx.xxx will
promote as set forth on Exhibit A hereto the Co-Branded Core
Services to the registered users ("Registered Users") of Xxxx.xxx
(the "Registered Users Promotion"). Xxxx.xxx will be responsible
for all out-of-pocket expenses incurred by Xxxx.xxx in connection
with this promotion.
b) By the end of the First Quarter of calendar year 2001, Xxxx.xxx
will promote as set forth on Exhibit B hereto Xxxx.xxx and the
Co-Branded Core Services to subscribers to the Wall Street
Journal the (the "WSJ Promotion"). The purpose of the campaign
shall be limited to promotion of Xxxx.xxx's services and the Co-
Branded Core Services. Except as provided in Section 4(c) hereof,
Xxxx.xxx will be responsible for all out-of-pocket expenses
incurred by Xxxx.xxx in connection with this promotion.
c) Beginning in the First Quarter of 2001,Xxxx.xxx shall add to the
process by which users become Registered Users of Xxxx.xxx, as
part of the online dialog during registration and as a prominent
part of the welcome e-mail that registered users receive, a
registration process for the Co-Branded Core Services (the "Co-
Branded Core Services Registration") outlined by Evoke and
subject to the
reasonable approval of Xxxx.xxx. The parties shall reasonably
cooperate to design and implement such registration process.
Xxxx.xxx shall maintain the Co-Branded Core Services Registration
for six (6) months after it is effected.
d) Each of the promotions described in paragraphs a) - c) will
include an offer to users of an amount of free usage of the Co-
Branded Core Services (the "Free Promo"). The Free Promo shall
consist of the equivalent of $100 of free service and may be
offered by Xxxx.xxx to users only in connection with the
Registered Users Promotion, the WSJ Promotion or as otherwise
mutually agreed by the parties. Evoke may request, in its sole
discretion, a modification to the Free Promo as described in this
paragraph 2(d); and any such modification shall take effect upon
the mutual agreement of the parties. Further details of this Free
Promo will be mutually agreed upon by the parties.
3. Service Obligations:
a) Without in any way limiting Evoke's obligations pursuant to the
Agreement, Evoke will provide all services reasonably necessary
to allow users to register and use the Co-Branded Core Services.
b) Evoke hereby releases Xxxx.xxx from any obligations with respect
to and Xxxx.xxx may utilize in its sole discretion any and all
on-line advertising inventory previously committed to Evoke.
4. Exhibit E - Financial Terms is revised as follows:
a) Revenue Sharing: During the term of this Amendment, Evoke will
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pay Xxxx.xxx 50% of Net Revenue generated from users of the Co-
Branded Core Services. Net Revenue means gross receipts less 20%
for estimated long distance services and taxes.
b) Promotion Fees: During the Term of this Amendment, Evoke will
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pay Xxxx.xxx $1,000,000 in the following installments: (i)
$500,000 before the end of the Fourth Quarter of calendar year
2000 for performing the Registered Users Promotion; and (ii)
$500,000 before the end of the First Quarter of calendar year
2001 for performing the WSJ Promotion.
c) Promotional Costs: Evoke will reimburse Xxxx.xxx's out-of-pocket
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expenses not to exceed $400,000, in connection with the WSJ
Promotion as specified in Section 2(b).
d) Delay of Promotion: In the event that Evoke comes under court or
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der to halt all advertising such that the promotion(s)
contemplated herein cannot be performed as specified, the parties
agree to cooperate to develop a promotion that is legally
permitted under any such court order.
e) Delivery and Usage Fees: Xxxx.xxx will enter into a separate
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Service Subscription Agreement with Evoke with respect to the
Free Promo.
5. All of the Assigned Provisions remain in full force and effect,
except as specifically modified in this Amendment, and any End User
pricing provisions contained in the Agreement that are hereby
superceded. All terms capitalized, unless defined herein, shall
have the meanings set forth in the Agreement.
Please acknowledge below that you agree to the terms and conditions of
this Amendment.
Sincerely,
/s/ Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxx
President and CEO - Evoke Communications, Inc.
Agreed to: Xxxx.xxx LLC by Xxxx.xxx Inc., its managing member
Name: Xxx Xxxxxxxxx Signature: /s/ Xxx Xxxxxxxxx
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Title: Chairman and CEO
