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EXHIBIT 10.12
TERMINATION AND RELEASE AGREEMENT
THIS SETTLEMENT AGREEMENT (the "AGREEMENT") is entered into this 30th
day of March, 2001 (the "EFFECTIVE DATE"), by and between XXX XXXXXXXXXXX, a
Massachusetts Corporation with an office located at 000 Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx ("EMC") and XXX.XXX CORPORATION, a Nevada Corporation with an
office located at 000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxx ("XXX.XXX"
and collectively with EMC, the "PARTIES").
RECITALS:
WHEREAS, the Parties entered into an Internet Services Agreement dated
as of December 28, 1999 (the "ISA") and various Statements of Work as defined
therein (the "STATEMENTS OF WORK").
WHEREAS, pursuant to Statement of Work Number 03 under the Internet
Services Agreement the Parties also entered into an Assignment and Assumption
Agreement dated January 10, 2000, whereby EMC assigned and transferred to
Xxx.Xxx all of EMC's right title and interest in and to that certain License
Agreement between EMC and DoubleClick dated December 23, 1999 and that certain
Support Agreement between EMC and DoubleClick dated December 23, 1999, except
EMC's payment obligations thereunder (the "ASSIGNMENT" and hereinafter
collectively with the ISA and Statements of Work, the "INTERNET SERVICES
AGREEMENTS").
WHEREAS, the Parties desire to terminate the Internet Services
Agreements effective as of February 9, 2001, thereby releasing each other from
any claims, actions, causes of action, liabilities or obligations thereunder.
WHEREAS, as part of the consideration for terminating the Internet
Services Agreements and releasing each other from any claims, actions, causes of
action, liabilities or obligations thereunder, Xxx.Xxx will pay to EMC a final
payment of Three Hundred Thousand Dollars ($300,000.00).
PROVISIONS:
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereto, intending to
be legally bound, agree as follows:
1. FINAL PAYMENT. Xxx.Xxx shall pay to EMC the sum of Three Hundred
Thousand Dollars ($300,000.00) as final payment under the Internet Services
Agreements which amount shall be paid on the Effective Date (the "FINAL
PAYMENT").
2. TERMINATION OF INTERNET SERVICES AGREEMENT. Effective as of February
9, 2001, and subject to the terms of this Agreement, the Internet Services
Agreements shall automatically be cancelled, terminated, released and
extinguished and neither Xxx.Xxx nor EMC shall have any further interest in or
rights with respect to the Internet Services Agreements.
3. RELEASE.
(a) EMC, hereby releases, waives and discharges Xxx.Xxx its
representatives, affiliates, heirs, executors, administrators, successors and
assigns from any and actions, causes of action, suits, debts, dues, sums of
money, accounts, reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses, damages, judgments,
extents, executions, claims, and demands whatsoever, at law or in equity which
it now has or hereafter can, shall or may have, whether known or suspected or
unknown or unsuspected, by reason of or arising out of the Internet Services
Agreements.
(b) Xxx.Xxx, hereby releases, waives and discharges EMC its
representatives, affiliates, heirs, executors, administrators, successors and
assigns from any and actions, causes of action, suits, debts, dues, sums of
money, accounts, reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses, damages, judgments,
extents, executions, claims, and demands whatsoever, at law or in equity
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which it now has or hereafter can, shall or may have, whether known or suspected
or unknown or unsuspected, by reason of or arising out of the Internet Services
Agreements.
(c) EMC agrees not to commence or pursue in any federal, state
or other court or governmental or regulatory authority or in any arbitration or
dispute resolution proceeding (collectively, "PROCEEDINGS") against Xxx.Xxx,
directly or indirectly, any claims or other matters herein released and not to
assert any affirmative defense in any Proceedings involving any such parties
which defense is based on facts that would otherwise support claims or matters
released hereunder.
(d) Xxx.Xxx agrees not to commence in any Proceedings against
EMC, directly or indirectly, any claims or other matters herein released and not
to assert any affirmative defense in any Proceedings involving any such parties
which defense is based on facts that would otherwise support claims or matters
released hereunder.
4. REPRESENTATIONS AND WARRANTIES OF EMC. EMC hereby represents and
warrants to Xxx.Xxx as follows:
(a) EMC has full power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby.
(b) This Agreement has been duly executed and delivered by EMC
through the undersigned and constitutes valid and binding obligations of EMC,
enforceable against EMC in accordance with its terms.
(c) The making and performance by EMC of this Agreement, and
the fulfillment of its obligations hereunder, do not and will not violate any
law or regulation of the jurisdiction under which it exists.
5. REPRESENTATIONS AND WARRANTIES OF XXX.XXX. Xxx.Xxx hereby represents
and warrants to EMC as follows:
(a) Xxx.Xxx has full power and authority to enter into this
Agreement and all Exhibits hereto and to consummate the transactions
contemplated hereby.
(b) The Agreement has been duly executed and delivered by
Xxx.Xxx through the undersigned and constitutes a valid and binding obligation
of Xxx.Xxx, enforceable against him in accordance with its terms.
(c) The making and performance by Xxx.Xxx of this Agreement,
and the fulfillment of its obligations hereunder, do not and will not violate
any law or regulation of the jurisdiction under which it exists.
6. MISCELLANEOUS.
(a) This Agreement:
(i) shall constitute the entire agreement
between the parties hereto and supersedes all prior
agreements, written or oral, concerning the subject
matter herein and there are no oral understandings,
statements or stipulations bearing upon the effect of
this Agreement which have not been incorporated
herein.
(ii) may be modified or amended only by a
written instrument signed by each of the parties
hereto.
(iii) shall bind and inure to the benefit of
the parties hereto and their respective heirs,
successors and assigns.
(iv) shall be construed in accordance with
and governed by the laws of the State of New York
without reference to conflict of laws principles.
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(v) may not be assigned by either party
without a written agreement signed by all parties
hereto. Any assignment not signed by all parties is
null and void.
(b) All notices hereunder shall be in writing and shall be
deemed to have been delivered on the day of mailing if sent by registered or
certified mail, postage prepaid and return receipt requested to the addresses
set forth at the beginning of this Agreement or such other address known by a
party sending notice hereunder.
(c) Any litigation involving this Agreement shall be
adjudicated in a court of competent jurisdiction located in Monroe County, New
York and the parties irrevocably consent to the personal jurisdiction and venue
of such court.
(d) If any provision of this Agreement shall be held invalid
or unenforceable by competent authority, such provision shall be construed so as
to be limited or reduced to be enforceable to the maximum extent compatible with
the law as it shall then appear. The total invalidity or unenforceability of any
particular provision of this Agreement shall not affect the other provisions
hereof and this Agreement shall be construed in all respects as if such invalid
or unenforceable provision were omitted.
(e) In the event of litigation to enforce the terms and
conditions of this Agreement, the losing party agrees to pay the prevailing
party's reasonable costs and expenses incurred including, without limitation,
reasonable attorneys' fees directly relating to such litigation.
(f) This Agreement can be executed in multiple counterparts
and by facsimile.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
XXX XXXXXXXXXXX
By: /s/ Xxxxxxxxx X. Xxxxx
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Name: Xxxxxxxxx X. Xxxxx
Title: Outsourcing Manager
XXX.XXX CORPORATION
By: /s/ Xxxxxxx XxXxxxx
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Xxxxxxx XxXxxxx, Vice President
of Finance and Chief Financial
Officer
