Exhibit 10.2
RELEASE AGREEMENT
This Release Agreement (the "Release Agreement") is made and entered
into as of this 22nd day of April, 2003, by and among XXXXXX.XXX, INC., a
Delaware corporation (the "Corporation"), on the one hand, and XXXXXXX FINE, an
individual ("Fine") and Fineline Services, LLC, a California corporation ("FSL")
and together with FSL (the "Fine Parties") on the other hand, with reference to
the following facts:
A. This Agreement is entered into in connection with resolving whether and the
extent to which Fine is entitled to a bonus arising from the achievement by the
Company of a certain level of subscribers.
NOW, THEREFORE, in consideration of the mutual promises, covenants,
agreements and conditions contained herein and for other good and valuable
consideration, receipt of which is hereby acknowledged, the parties hereto agree
as follows:
1. CONSIDERATION
1.1 Within three business days from the execution of this agreement by
the Fine Parties the Company shall pay to the Fine Parties the amount of
$150,000 in fulfillment of ALL bonus payment obligations as follows: $50,000 to
Fine and $100,000 to FSL.
1.2 Additionally, within three business days from the execution of this
Agreement by the Fine Parties the Company shall facilitate the assignment of a
warrant for 20,171 shares of common stock in accordance with the attached
Warrant Agreement as further consideration of this Agreement and in fulfillment
of ALL Warrant obligations between the Company and the Fine parties.
2. SETTLEMENT OF DISPUTES
Upon the terms and subject to the conditions set forth herein, the
parties desire to settle in full all claims, differences, and disputes which now
exist or which may exist in the future between them in connection with any other
amounts or other property specifically (including, but not limited to, ALL
bonuses payments and Warrants to the Fine Parties) with respect to any
employment or consulting agreements or arrangements entered into or promised
prior to the execution of this Agreement, except any compensation remaining
payable pursuant to that certain Separation Agreement (the "Separation
Agreement") dated as of May 5, 2000 (collectively, the "Released Matters").
Notwithstanding the foregoing, with regard to medical treatment obtained during
the Severance Period (as that term is defined in said Severance Agreement), Fine
may submit claims regarding said medical treatment for a period of 90 days
following the Severance Period.
3. RELEASE
3.1 RELEASE OF CORPORATION. In consideration for the mutual covenants,
conditions and promises set forth herein, except for the obligations and
liabilities of the Corporation arising under (i) this Agreement and/or (ii) any
compensation remaining payable pursuant to said Separation Agreement including
the aforementioned 90 day medical billing procedure, Fine for himself and his
agents, representatives, predecessors, successors and assignees (the "Fine
Representatives"), hereby forever releases, absolves and discharges the
Corporation and its officers, directors, shareholders, employees, agents,
representatives, affiliates, attorneys, predecessors, successors and assigns
(collectively, the "Corporation Representatives"), from and against any and all
claims, demands, charges, complaints, suits, actions, causes of action, debts,
liabilities, obligations, losses, costs and expenses, including without
limitation, attorneys' fees and court costs, whether known or unknown
(collectively, the "Claims") which Fine or the Fine Representatives ever had or
asserted or which Fine or the Fine Representatives may now or hereinafter have
or assert, which arise under, or in any way relate to, or in any way are
connected with the Released Matters.
3.2 SECTION 1542 WAIVER. Fine, for himself and each of the Fine
Representatives expressly waives any and all rights or benefits which Fine or
the Fine Representatives has or may have or may have been conferred upon them by
the provisions of Section 1542 of the California Civil Code, which provides as
follows:
"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."
In connection with such waiver, Fine acknowledges that he may later
discover facts different from or in addition to those which he knows or believes
to be true with respect to the Claims, and Fine agrees that, in such event, this
Agreement shall nevertheless remain effective in all respects notwithstanding
such different or additional facts or the discovery of those facts.
4. REPRESENTATIONS AND WARRANTIES
Fine, for himself and each of the Fine Representatives, represents and
warrants that he (i) has not heretofore sold, assigned, hypothecated or
otherwise transferred to any third party any rights or interest in or to any of
the Claims; (ii) has been represented by independent counsel of his or its
choice in connection with the negotiation and execution of this Agreement; and
(iii) has read this Agreement understands the terms used herein and the
consequences hereof.
5. COVENANT
Fine, for himself and for each of the Fine Representatives, covenants
that no suit, arbitration or other action shall be commenced against the
Corporation or the Corporate Representatives based upon any of the Claims, nor
shall any of the Claims be asserted against the other party in any action by way
of counterclaim, cross-complaint, setoff or similar pleadings and that this
Agreement shall be a complete bar to any proceedings or assertions.
6. APPLICABLE LAW AND SEVERABILITY
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This Agreement shall, in all respects, be governed by the laws of the
State of California applicable to agreements executed and to be wholly performed
within the state of California. Nothing contained herein shall be construed so
as to require the commission of any act contrary to law, and wherever there is
any conflict between any provision contained herein and any present or future
statute, law, ordinance or regulation contrary to which the parties have no
legal right to contract, the latter shall prevail but the provision of this
Agreement which is affected shall be curtailed and limited only to the extent
necessary to bring it within the requirements of the law.
7. ENFORCEABILITY
It is agreed that the rights granted to the parties hereunder are of a
special and unique kind and character and that, if there were a breach by any
party of any material provision of this Agreement, the other party would not
have an adequate remedy at law. It is expressly agreed therefore that the rights
of the parties hereunder may be enforced by an action for specific performance
and such other equitable relief as is provided under the laws of the State of
California.
8. INTERPRETATION
This Agreement has been negotiated at arm's length and between persons
(or their representatives) sophisticated and knowledgeable in the matters dealt
within this Agreement. Accordingly, any rule of law (including California Civil
Code Section 1654 and any successor statute) or legal decision that would
require interpretation of any ambiguities against the party that has drafted it
is not applicable and is waived. The provisions of this Agreement shall be
interpreted in a reasonable manner to effect the purpose of the parties and this
Agreement.
9. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof and supersedes any and all other written or
oral negotiations, understandings or agreements among the parties with respect
to the rights and obligations assumed herein and contains all of the covenants
and agreements among the parties with respect to such rights and obligations.
10. ATTORNEYS' FEES
In the event any action be instituted by a party to enforce any of the
terms and provisions contained herein, the prevailing party in such action shall
be entitled to such reasonable attorneys' fees, costs and expenses as may be
fixed by the court.
11. SUCCESSORS AND ASSIGNS
Neither party may assign his or its rights or delegate his or its
obligations under this Agreement, in whole or in part. Except for the foregoing,
each of the terms and provisions contained herein shall inure to the benefit of
and shall be binding upon the parties hereto and their respective heirs,
personal representatives, successors and assigns.
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12. NO OBLIGATION TO THIRD PARTIES
The execution and delivery of this agreement shall not be deemed to
confer any rights upon, directly, indirectly or by way of subrogation, nor
obligate either of the parties hereto, to any person or entity other than each
other.
13. MODIFICATIONS OR AMENDMENT
No amendment, change or modification of this Agreement shall be valid
unless in writing, stating that it amends or modifies this Agreement, and signed
by each of the parties hereto.
14. FURTHER ASSURANCES
Each of the parties hereto shall execute and deliver any and all
additional papers, documents and other assurances and shall do any and all acts
and things reasonably necessary in connection with the performance of their
obligations hereunder and to carry out the intent of the parties hereto.
15. TIME IS OF ESSENCE
Time is of the essence of this Agreement and all the terms, provisions,
covenants and conditions hereof.
16. WAIVER
The waiver by any party to this Agreement of the breach of any
provision of this Agreement shall not be deemed a continuing waiver or a waiver
of any subsequent breach, whether of the same or another provision of this
Agreement.
17. HEADINGS
The captions appearing at the commencement of the paragraphs hereof are
descriptive only and for convenience in reference. Should there be any conflict
between any such caption and the paragraph at the head of which is appears, the
paragraph and not such caption shall control and govern in the construction of
this Agreement.
18. COUNTERPARTS
This Agreement may be executed in two (2) or more separate
counterparts, each of which, when so executed, shall be deemed to be an
original. Such counterparts shall together constitute and be one (1) and the
same instrument.
[Signatures on the next page]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
XXXXXX.XXX, INC.,
a Delaware corporation
/S/ XXXXXXX FINE By:/S/ XXXXXXX XXXXXXXX
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XXXXXXX FINE, Individually XXXXXXX XXXXXXXX
Chief Executive Officer
FINELINE SERVICES, LLC
By: /S/ XXXXXXX FINE
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Name: XXXXXXX FINE
Its: PARTNER
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