EXHIBIT 10.4
RELEASE
This Release is being executed and delivered in accordance with Section
3.3.2(g) of the Agreement and Plan of Merger by and among Xxxxxx Interactive
Inc., Xxxxxxxx Worldwide, Inc., Capitol Merger Sub, LLC, and the Stockholders of
Xxxxxxxx Worldwide, Inc. dated as of September 8, 2004 (the "Agreement").
Capitalized terms used in this Release without definition have the respective
meanings given to them in the Agreement.
Each Stockholder acknowledges that the execution and delivery of this
Release is a condition to Xxxxxx'x obligation to purchase the outstanding
capital stock of Xxxxxxxx pursuant to the Agreement and that Xxxxxx is relying
on this Release in consummating such purchase.
Each Stockholder, for good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged and intending to be legally bound,
in order to induce Xxxxxx to purchase the outstanding capital stock of Xxxxxxxx
pursuant to the Agreement, hereby agrees as follows:
Each Stockholder, on behalf of itself or himself and each of his Related
Persons, hereby releases and forever discharges each of the Acquired Companies,
and each of their respective individual, joint or mutual, past and present
Representatives, affiliates, stockholders, controlling Persons, Subsidiaries,
successors and assigns (individually, a "Releasee" and collectively,
"Releasees") from any and all claims, demands, Proceedings, causes of action,
Orders, obligations, contracts, agreements debts and liabilities whatsoever,
whether known or unknown, suspected or unsuspected, both at law and in equity,
which each of the Stockholders or any of their respective Related Persons now
has, have ever had or may hereafter have against the respective Releasees
arising contemporaneously with or prior to the Closing Date or on account of or
arising out of any matter, cause or event occurring contemporaneously with or
prior to the Closing Date, including but not limited to any rights to
indemnification or reimbursement from any Acquired Company, whether pursuant to
their respective Organizational Documents, contract or otherwise and whether or
not relating to claims pending on, or asserted after, the Closing Date;
provided, however, that nothing contained herein shall operate to release any
obligations of (a) any Releasees arising under the Agreement or the Ancillary
Agreements or (b) any obligation of Xxxxxxxx under (i) the Agreement between
Xxxxxxxx and Xxxxxxxx Family LLC dated April 23, 2002, as may be amended, and
(ii) the Agreement between Xxxxxxxx and WB&H Investments, L.P., dated September
15, 1985, as amended, or (c) Xxxxxx and any Releasees with respect to any rights
to salary, bonus, and benefits under employee benefit plans (but for the
avoidance of doubt, specifically not including plans related to equity
securities or rights related to the equity value of the Acquired Companies) that
have accrued to each Stockholder on account of their status as an employee of an
Acquired Company.
Each Stockholder hereby irrevocably covenants to refrain from, directly or
indirectly asserting any claim or demand, or commencing, instituting or causing
to be commenced, any proceeding of any kind against any Releasee, based upon any
matter purported to be released hereby.
Without in any way limiting any of the rights and remedies otherwise
available to any Releasee, each Stockholder shall indemnify and hold harmless
each Releasee from and against
all loss, liability, claim, damage (including incidental and consequential
damages) or expense (including costs of investigation and defense and reasonable
attorney's fees) whether or not involving third party claims, arising directly
or indirectly from or in connection with (i) the assertion by or on behalf of
the Stockholders or any of their Related Persons of any claim or other matter
purported to be released pursuant to this Release and (ii) the assertion by any
third party of any clam or demand against any Releasee which claim or demand
arises directly or indirectly form, or in connection with, any assertion by or
on behalf of the Stockholders or any of their Related Persons against such third
party of any claims or other matters purported to be released pursuant to this
Release.
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 no held invalid or unenforceable.
This Release may not be changed except in a writing 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 Delaware without regard to principles of conflicts of law.
All words used in this Release will be construed to be of such gender or
number as the circumstances require.
IN WITNESS WHEREOF, each of the undersigned have executed and delivered
this Release as of this 8th day of September, 2004.
[Signature Pages Follow]
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This Release was signed by the following Stockholders of Xxxxxxxx
Worldwide, Inc. (individual signature pages have been omitted):
Xxxxxxxx Family Trust
White Family Living Trust
Xxxxx Xxxxxxxxxx
Xxxxxxx Xxxxxxxx
Xxxx Xxxxxxx
Xxxxx Xxxxxxx
Hakan Atak
Xxx Xxxxxx
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