Exhibit 99.2
MUTUAL RELEASE AGREEMENT
THIS MUTUAL RELEASE AGREEMENT (this "Agreement") is effective as of
February 18, 2003, by and between Alternate Marketing Networks, Inc., a
Delaware corporation (the "Corporation"), K2 VC LTD., a Texas limited
partnership ("K2VC"), and Xxxx Xxxx ("Khan").
RECITALS
WHEREAS, the parties hereto have agreed to release each other from
certain obligations and liabilities for potential disputes, claims, and/or
causes of action which have arisen or may have arisen between the
Corporation, on one hand, and K2VC and Khan, on the other hand, prior to
the date of this Agreement, except as otherwise set forth herein;
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises, agreements,
representations, warranties, and covenants contained herein, the receipt
and sufficiency of which are hereby acknowledged and accepted, the parties
hereto, intending to be legally bound, hereby agree as follows:
1. Release by the Corporation.
(a) The Corporation, for and on behalf of the Corporation
and any and all of the officers, directors, employees, agents,
representatives, stockholders, controlled affiliates (as such term
is defined in Rule 405 promulgated under the Securities Act of
1933, as amended (the "Securities Act"), attorneys, and accountants
of the Corporation (including, without limitation, any heirs,
assigns, trustees, beneficiaries, or executors of any of the
foregoing) (each, a "Corporation Releasing Party," and,
collectively, the "Corporation Releasing Parties"), does hereby
unconditionally and irrevocably release and forever discharge K2VC
and Khan, and any and all of the agents, representatives, trustees,
partners, controlled affiliates (as such term is defined in Rule
405 promulgated under the Securities Act), attorneys, and
accountants of K2VC and Khan (including, without limitation, any
heirs, assigns, trustees, beneficiaries, or executors of any of the
foregoing) (each, a "Khan Released Party," and, collectively, the
"Khan Released Parties"), from any and all claims, counterclaims,
set-offs, demands, remedies, suits, proceedings, causes of action,
orders, obligations, contracts, agreements, debts, damages and
liabilities of any kind, at common law, statutory or otherwise,
whether now known or not, whether contingent or matured, whether
suspected or unsuspected, currently existing or arising as of the
date of this Agreement which relate in any way to the management or
operation of the Corporation or any subsidiaries of the Corporation
(each, a "Claim," and, collectively, the "Claims") which the
Corporation or any other Corporation Releasing Party may have had
or may now have directly or derivatively against any or all of the
Khan Released Parties based upon or arising out of any event, act,
or omission, negligence or fault of any or all of the Khan Released
Parties that has occurred (or is alleged to have occurred) on or
prior to the date of this Agreement, except as set forth in
Section 3 of this Agreement.
(b) Except as expressly provided in this Agreement, the
Corporation, for and on behalf of the Corporation and each other
Corporation Releasing Party, does hereby irrevocably covenant and
agree to refrain from, directly or indirectly, asserting any Claim,
or commencing, instituting, or causing to be commenced any
proceeding of any kind, against any or all of the Khan Released
Parties based upon any matter released or purported to be released
hereby.
(c) The Corporation, for and on behalf of the Corporation
and each other Corporation Releasing Party, does hereby
acknowledge, understand, and agree that the execution of this
Agreement does not constitute in any manner whatsoever an admission
of liability on the part of any parties hereto for any matter(s)
covered by this Agreement, and that such liability is specifically
denied.
2. Release by Khan.
(a) Each of K2VC and Khan, for and on behalf of K2VC and
Khan and each other Khan Released Party (each, a "Khan Releasing
Party," and, collectively, the "Khan Releasing Parties"), does
hereby unconditionally and irrevocably release and forever
discharge the Corporation and each other Corporation Releasing
Parties (each, a "Corporation Released Party," and, collectively,
the "Corporation Released Parties"), from any and all Claims which
K2VC, Khan, or any other Khan Releasing Party may have had or may
now have directly or derivatively against any or all of the
Corporation Released Parties based upon or arising out of any
event, act, or omission, negligence or fault of any or all of the
Corporation Released Parties that has occurred (or is alleged to
have occurred) on or prior to the date of this Agreement, except as
set forth in Section 3 of this Agreement.
(b) Except as expressly provided in this Agreement, each of
K2VC and Khan, for and on behalf of Khan and each other Khan
Releasing Party, does hereby irrevocably covenant and agree to
refrain from, directly or indirectly, asserting any Claim, or
commencing, instituting or causing to be commenced any proceeding
of any kind, against any or all of the Corporation Released Parties
based upon any matter released or purported to be released hereby.
(c) Each of K2VC and Khan, for and on behalf of K2VC and
Khan and each other Khan Releasing Party, does hereby acknowledge,
understand, and agree that the execution of this Agreement does not
constitute in any manner whatsoever an admission of liability on the
part of any parties hereto for any matters covered by this
Agreement, and that such liability is specifically denied.
3. Additional Rights and Obligations. Notwithstanding anything
to the contrary in this Agreement, the execution and delivery of this
Agreement shall not impair or diminish any of the rights or obligations of
any of the parties pursuant to, nor shall anything herein operate as a
release of any Claim that any party hereto may have against any other
party hereto for (a) that certain Employment Agreement, dated as of August
1, 2002, by and between the Corporation and Khan (the "Employment
Agreement"), (b) that certain Stock Option Agreement, dated as of the date
hereof, by and between the Corporation and Khan (the "Stock Option
Agreement"), (c) any existing insurance policy, employee benefit plan, or
other individual account plan of the Corporation, including, without
limitation, any D&O or E&O insurance policy (collectively, the "Individual
Account Plans"), (d) any act, omission, negligence, or fault occurring (or
alleged to have occurred) after the date of this Agreement, (e) that
certain Contribution Agreement, dated as of January 1, 2003, by and
between the Corporation and K2VC (the "Contribution Agreement"), or (f)
any deferred compensation owing by the Corporation and/or any subsidiaries
of the Corporation to Khan or any expenses of Khan required to be
reimbursed by the Corporation and/or any subsidiaries of the Corporation.
4. No Reliance on Other Statements and Binding Effect. This
Agreement (a) constitutes the entire agreement between the parties hereto
relating to the subject matter hereof and (b) supersedes all previous
understandings and agreements between the parties hereto relating to the
subject matter hereof, both oral and written. Each party to this
Agreement expressly warrants and represents that, in entering into this
Agreement, such party, as applicable, is not relying on any promise,
agreement, or statement, whether oral or written, that is not set forth in
this Agreement, the Contribution Agreement, the Employment Agreement, the
Stock Option Agreement, or the Individual Account Plans. Nothing in this
Agreement, express or implied, is intended to confer upon any party, other
than the parties hereto and the Corporation Released Parties, Corporation
Releasing Parties, Khan Released Parties, and Khan Releasing Parties, any
rights, remedies, obligations or liabilities under or by reason of this
Agreement and no person or entity who is not a party to this Agreement,
other than the Corporation Released Parties, Corporation Releasing
Parties, Khan Released Parties, and Khan Releasing Parties may rely on the
terms hereof.
5. Entire Agreement. This Agreement and the documents and
instruments referenced herein and delivered pursuant to and in accordance
with this Agreement set forth the entire agreement and understanding of
the parties hereto with respect to the transactions contemplated by this
Agreement, and supersede and replace all other prior agreements,
arrangements, and understandings related to the subject matter hereof. No
understanding, promise, inducement, statement of intention,
representation, warranty, covenant or condition, written or oral, express
or implied, whether by statute or otherwise, has been made by any party
hereto with respect to the subject matter hereof which is not embodied in
this Agreement and no party hereto shall be bound by or liable for any
alleged understanding, promise, inducement, statement, representation,
warranty, covenant or condition not so set forth with respect to the
subject matter hereof.
6. Amendment. This Agreement may only be amended, modified,
rescinded, waived, or terminated by a written agreement signed by each of
the parties hereto.
7. Assignment. No party to this Agreement may assign the
respective rights of such party or delegate the respective obligations of
such party hereunder without the prior written consent of the other
parties hereto. Any such attempted assignment shall be null and void ab
initio.
8. Applicable Law. This Agreement is made pursuant to, shall be
construed and enforced under, and shall be conclusively deemed for all
purposes to have been executed and delivered under the laws of the State
of Texas without reference to conflicts of laws principles and is
performable in Dallas County, Texas.
9. Section Headings. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
10. Severability. If any provision of this Agreement is held
invalid or unenforceable by any court of competent jurisdiction, the other
provisions of this Agreement shall remain in full force and effect. Any
provision of this Agreement held invalid or unenforceable only in part or
degree shall remain in full force and effect to the extent not held
invalid or unenforceable.
11. Expenses.
(a) The Corporation shall reimburse K2VC and Khan for the
reasonable and necessary legal fees and expenses incurred by K2VC
and Khan in connection with this Agreement, the Contribution
Agreement, and any settlement of the existing dispute by and between
the Corporation, K2VC, and Khan, on one hand, and Drawbridge (as
defined below), on the other hand.
(b) The Corporation shall reimburse K2VC and Khan for the
reasonable and necessary legal fees and expenses incurred by K2VC
and Khan in connection with the litigation by Xxxxxx.Xxx (as defined
below) and/or Xxxxxx (as defined below) against K2VC or Khan if such
fees and expenses have been pre-approved in writing by the
Corporation.
12. Other Agreement(s). If the Corporation shall reasonably and
in good faith request K2VC to transfer the Shares (as defined below) to
the Corporation in connection with any settlement(s) and/or judgment(s)
obtained by Xxxxxx.Xxx, Inc., a Delaware corporation ("Xxxxxx.Xxx"),
and/or Xxxx X. Xxxxxx, an affiliate of Xxxxxx.Xxx ("Xxxxxx"), against the
Corporation or any subsidiary of the Corporation (each, a "Xxxxxx Claim,"
and, collectively, the "Xxxxxx Claims"), K2VC shall (a) contribute,
transfer, convey, and assign all of the rights, title and interest of K2VC
in and to not more than 200,000 shares (after giving full effect to any
positive or negative dilution event(s) occurring after the date hereof and
prior to any such Xxxxxx Claim(s), the "Shares") of the 1,000,000 shares,
par value $0.01 per share, of common stock of the Corporation of the
shares of Common Stock owned and/or held, beneficially and of record, by
K2VC, as of the date hereof, issued to K2VC and pledged to Drawbridge
Investment Partners LLC, a Delaware limited liability company
("Drawbridge"), as assignee of Edge Technology Group, Inc., a Delaware
corporation ("Edge"), pursuant to that certain Pledge Agreement, dated
August 19, 2002, by and among K2VC, Khan, and Edge (the "Pledge
Agreement"), to the Corporation free and clear of any and all security
interests, liens, claims or encumbrances of any nature whatsoever, except
for the pledge of the Shares by K2VC to Drawbridge and the security
interest of Drawbridge in the Shares pursuant to the Pledge Agreement, and
(b) deliver or cause to be delivered any and all certificate(s)
representing and evidencing the Shares duly endorsed or accompanied by a
duly executed stock power and assignment as necessary to effectuate the
transfer and contribution of the Shares to the Corporation; provided,
however, that the Corporation shall return and transfer any and all Shares
not actually utilized in connection with any Xxxxxx Claim(s) to K2VC after
the final and definitive decision, resolution, and/or settlement of (i)
the Xxxxxx Claim(s) existing as of the date hereof, including, without
limitation, any derivative, extension of, and/or counterclaim(s) related
to such Xxxxxx Claim(s).
Remainder of Page Intentionally Left Blank.
Signature Page(s) to Follow.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Mutual Release Agreement effective as of the date first written above.
ALTERNATE MARKETING NETWORKS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: President and Chairman
K2 VC LTD., A TEXAS LIMITED PARTNERSHIP
BY: K2 VC MANAGEMENT, LLC, ITS GENERAL PARTNER
By: /s/ Xxxx Xxxx
Name: Xxxx Xxxx
Title: President
/s/ Xxxx Xxxx
Name: Xxxx Xxxx
