Exhibit 99.2
RELEASE AGREEMENT
Pursuant to the Securities Purchase Agreement (defined below), Coinstar,
Inc. ("Coinstar") and the Stockholders (defined herein) enter into this Release
Agreement (this "Release Agreement"), dated as of _______, 2001 ("Effective
Date"). Coinstar and the Stockholders are individually referred to as "Party"
and collectively as "Parties."
RECITALS
A. The Stockholders and Coinstar have settled and forever resolved any
disputed issues arising out of or related to the Stockholders' investment in or
ownership of Series A Preferred Stock in Xxxxx.xxx, warrants for stock in
Xxxxx.xxx, or any other rights of any kind in Xxxxx.xxx.
B. Coinstar has agreed to purchase, among other things, all of the
Stockholders' shares of Xxxxx.xxx Series A Preferred Stock pursuant to the terms
and conditions of the Securities Purchase Agreement.
C. As condition precedent to Coinstar's obligation to deliver the
consideration promised the Stockholders in the Securities Purchase Agreement,
the Stockholders desire to execute this Release Agreement to memorialize their
relinquishment of any Claims against the Released Parties.
AGREEMENT
The Parties therefore agree as follows:
1. Definitions. As used herein, the following capitalized terms have the
following meanings:
"Claims" means any claim, demand, debt, loss, obligation, liability, cost,
expense (including, without limitation, attorneys' fees), right of action or
cause of action of whatever kind or nature (whether known or unknown, suspected
or unsuspected, past or present, in contract or tort, or otherwise).
"Xxxxx.xxx" means Xxxxx.xxx, Inc., a Delaware corporation.
"Related Parties" means the legal representatives, directors, officers,
employees, agents, heirs, spouses, executors, personal representatives, estates,
administrators, successors and assigns of each Stockholder.
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"Release" (or any conjugation thereof) means to release, remise, acquit and
forever discharge.
"Released Claims" means the Claims that are Released pursuant to Section 2
hereof and specifically includes, without limitation, any Claims asserted by
Stockholders or their representatives against the Released Parties.
"Released Parties" means the party giving a Release hereunder and each of
their past and present directors, officers, agents, servants, employees,
affiliated entities, attorneys, advisors, insurance companies, predecessors,
successors and assigns.
"Securities Purchase Agreement" means the Securities Purchase Agreement by
and between Coinstar and the Stockholders executed substantially
contemporaneously with this Release Agreement.
"Stockholders" means all the holders--excluding Coinstar--of Series A
Preferred Shares, warrants or other stock interests in Xxxxx.xxx, Inc.
2. Release. Each of the Stockholders hereby, for themselves and on
behalf of their respective Related Parties, irrevocably and unconditionally
Releases Coinstar and each of its Released Parties, from any and all Claims that
the Stockholders or their Related Parties may now or hereafter have against the
Released Parties; provided that nothing in the foregoing will release, discharge
or otherwise affect (i) any obligation, right, liability or claim under the
Securities Purchase Agreement, (ii) any claims related to common stock of
Coinstar, or (iii) Claims arising after the Effective Date that are unrelated to
Xxxxx.xxx.
Effective upon receipt of this Release Agreement signed by each of the
Stockholders, Coinstar hereby, for itself and and on behalf of its respective
Related Parties, irrevocably and unconditionally Releases the Stockholders and
each of their Released Parties, from any and all Claims that Coinstar or its
Related Parties may now or hereafter have against the Released Parties; provided
that nothing in the foregoing will release, discharge or otherwise affect (i)
any obligation, right, liability or claim under the Securities Purchase
Agreement, (ii) any claims related to common stock of Coinstar previously owned
by the Stockholders, or (iii) Claims arising after the Effective Date that are
unrelated to Xxxxx.xxx.
3. Unknown Claims. Each of the Parties acknowledges that it is aware
that it may hereafter discover facts different from or in addition to what it
now knows or believes to be true with respect to the Released Claims, and these
releases will be and remain in effect in all respects as complete general
releases as to the matters released, notwithstanding any such different or
additional facts. Each of the Parties
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acknowledge that it has been informed of Section 1542 of the Civil Code of the
State of California, and, to the extent such Section may apply to it, does
hereby expressly waive and relinquish all rights and benefits, if any, which it
has or may have under said section, which reads 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.
4. No Pursuit of Released Claims. Subject to the terms of this Release
Agreement, no Party will no commence, prosecute, or assist any action or
proceeding based upon, or otherwise assert or pursue any claim, demand or cause
of action based on the Released Claims.
5. Representations. The Parties represent and warrant that they have not
heretofore assigned, pledged or otherwise transferred any of the Released
Claims, or purported to do any of the foregoing.
6. Confidentiality. Each of the Parties will keep the terms of this
Release Agreement confidential (except to the extent that Coinstar discloses the
terms of this Release Agreement and/or the Securities Purchase Agreement).
Without limiting the generality of the foregoing, none of the Parties will
disclose the terms of this Release Agreement to anyone other than its directors,
officers, legal counsel, accountants and other representatives who have agreed
or are otherwise bound to keep this Release Agreement confidential.
7. No Admission. This Release Agreement will not be interpreted or
construed as an admission or concession of liability by any of the Parties with
regard to any matter.
8. Successors and Assigns. This Release Agreement will be fully binding
upon, inure to the benefit of and be enforceable by each of the Parties and
their respective spouses, successors and assigns.
9. Governing Law; Venue. This Release Agreement will be interpreted,
construed and enforced in accordance with the laws of the State of Washington
without reference to its choice of law principles to the contrary. The
Stockholders hereby irrevocably consent to personal jurisdiction and venue in
the state and federal courts located in King County, Washington with respect to
any actions, claims or proceedings arising out of or in connection with this
Release Agreement, and will not to commence or prosecute any such action, claim
or proceeding other than in the aforementioned courts.
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10. Entire Agreement. This Release Agreement sets forth the sole and
exclusive agreement, and supersedes any and all prior agreements among the
Parties (except the Securities Purchase Agreement). No amendment or
modification of this Release Agreement will be binding unless it is in writing
and signed by the Parties to be bound.
11. Severability of Provisions. If any provision of this Release
Agreement is found to be invalid or unenforceable, then the remainder of this
Release Agreement will have full force and effect, and the invalid provision
will be modified, or partially enforced, to the maximum extent permitted to
effectuate the purpose of this Release Agreement.
12 Attorneys' Fees. If any legal action or other proceeding is brought
for the enforcement of this Release Agreement, or because of an alleged dispute,
breach, default or misrepresentation in connection with any of the provisions of
this Release Agreement, the successful or prevailing party will be entitled to
recover reasonable attorneys' fees and other reasonable costs incurred in that
action or proceeding, in addition to any other relief to which such party may be
entitled.
13. Legal Advice and Understanding of Agreement. Each of the Parties
represents that it has received, or it has had the opportunity to obtain,
independent legal advice with respect to the advisability of entering into this
Release Agreement and none of the Parties have been entitled to rely upon or has
in fact relied upon the legal or other advice of the other Parties' counsel in
entering into this Release Agreement. Each of the Parties represents that it
has carefully read this Release Agreement, that this Release Agreement has been
fully explained to it by its attorney, that it fully understands all of the
terms and provisions of this Release Agreement and the Release Agreement's
binding effect, and that it is entering into this Release Agreement voluntarily.
Each of the Parties acknowledge that the other Parties are entering into this
Release Agreement in reliance upon the foregoing representations.
14. Authority. The execution and delivery by each of the Stockholders has
been duly authorized and approved and no further consents, approvals or
authorizations of any other person or entity are necessary to authorize each of
the Stockholders to enter into and perform all of the obligations hereunder.
15. Counterparts. This Release Agreement may be executed in one or more
original, photocopied, facsimile, or telecopied counterparts, and all executed
counterparts will be deemed to be one and the same instrument.
((SIGNATURE PAGES FOLLOW))
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In witness whereof, the Parties have entered into this Release Agreement as
of the date first set forth above.
COINSTAR:
COINSTAR, INC.
By:
-------------------------------
Its:
------------------------------
Address: 0000 000xx Xxxxxx XX
Xxxxxxxx, XX 00000
Fax:
------------------------
Telephone:
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ACORN VENTURES IS, LLC
By:________________________________
Its: ______________________________
Address: 1309 - 000/xx/ Xxxxxx XX, #000
Xxxxxxxx, XX. 00000
Fax: 000-000-0000
Telephone: 000-000-0000
INTERNET VENTURES, LLC
By:________________________________
Its: ______________________________
Address: 1309 - 000/xx/ Xxxxxx XX, #000
Xxxxxxxx, XX. 00000
Fax: 000-000-0000
Telephone: 000-000-0000
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XXXX XXXXX
----------------------------------
Xxxx Xxxxx
Address: 0000 Xxxxxxx Xxxxxx
0000 0/xx/ Xxxxxx
Xxxxxxx, XX. 00000-0000
Fax: 000-000-0000
Telephone: 000-000-0000
XXXXX DRUM
----------------------------------
Xxxxx Drum
Address: 00000 XX 00xx Xxxxx
Xxxxxxxx, XX. 00000
Fax: 000-000-0000
Telephone: 000-000-0000
XXXX DRUM
-----------------------------------
Xxxx Drum
Address: 00000 XX 00xx Xxxxx
Xxxxxxxx, XX. 00000
Fax: 000-000-0000
Telephone: 000-000-0000
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XXXXXXX XXXXXXX, Xx.
--------------------------------
Xxxxxxx Xxxxxxx, Xx.
Address: NW Financial Advisory Services
000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX. 00000
Fax: 000-000-0000
Telephone: 000-000-0000
XXXXXX XXXXXXX
-------------------------------
Xxxxxx Xxxxxxx
Address: NW Financial Advisory Services
000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX. 00000
Fax: 000-000-0000
Telephone: 000-000-0000
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XXXXX XXXXX
-------------------------------
Xxxxx Xxxxx
Address: X.X. Xxx 000
Xxxxxxxx, XX 00000
Fax: 000-000-0000
Telephone: 000-000-0000
XXXXXX XXXXXX
-------------------------------
Xxxxxx Xxxxxx
Address: 0000 Xxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Fax: 000-000-0000
Telephone: 000-000-0000
XXXXXXX XXXXXXXXX
-------------------------------
Xxxxxxx Xxxxxxxxx
Address: 00 X Xxxxxxx Xx.
Xxxxxxx, XX 00000
Fax: 000-000-0000
Telephone: 000-000-0000
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XXXXX XXXXXXXXX
-------------------------------
Xxxxx Xxxxxxxxx
Address: 00 X Xxxxxxx Xx.
Xxxxxxx, XX 00000
Fax: 000-000-0000
Telephone: 000-000-0000
XXXXX XXXXXXXX FAMILY TRUST
DTD 2-18-93
By: _______________________________
Its: ______________________
Address: Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Fax: 000-000-0000
Telephone: 000-000-0000
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XXXX XXXXX
-------------------------------
Xxxx Xxxxx
Address: 5505 Lk. Xxxxxxxxxx Xxxx. XX
Xx. 0X
Xxxxxxxx, XX. 00000
Fax: 000-000-0000
Telephone: 000-000-0000
XXXXXX XXXXX
-------------------------------
Xxxxxx Xxxxx
Address: 5505 Lk. Xxxxxxxxxx Xxxx. XX
Xx. 0X
Xxxxxxxx, XX. 00000
Fax: 000-000-0000
Telephone: 000-000-0000
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XXXXXX XXXXXXXX
-------------------------------
Xxxxxx Xxxxxxxx
Address: 0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX. 00000-0000
Fax: 000-000-0000
Telephone: 000-000-0000
XXXXXX XXXXXXXXX
-------------------------------
Xxxxxx Xxxxxxxxx
Address: 4823 Lk. XX. Xxxx XX #0
Xxxxxxxx, XX 00000-0000
Fax: 000-000-0000
Telephone: 000-000-0000
XXXXXX XXXXXXXX
-------------------------------
Xxxxxx Xxxxxxxx
Address: Xxxxx 0000
0000 Xxxxx Xxxxxx Xxxxxx XX
Xxxxxxxxxx, XX 00000
Fax: 000-000-0000
Telephone: 000-000-0000
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XXXXX XXXXXXX
-------------------------------
Xxxxx Xxxxxxx
Address: Xxxxx 0000
0000 Xxxxx Xxxxxx Xxxxxx XX
Xxxxxxxxxx, XX 00000
Fax: 000-000-0000
Telephone: 000-000-0000
THE CASCADE GROUP, LLC
By:________________________________
Its: ______________________________
Address: 0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Fax: 000-000-0000
Telephone: 000-000-0000
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CLEAR FIR PARTNERS, L.P.
By:________________________________
Its: ______________________________
Address: 000 Xxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Fax: 000-000-0000
Telephone: 000-000-0000
KELLET PARTNERS, LP
By:________________________________
Its: ______________________________
Address: 000 Xxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Fax: 000-000-0000
Telephone: 000-000-0000
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XXXX XXXXXX
-------------------------------
Xxxx Xxxxxx
Address: 000 Xxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Fax: 000-000-0000
Telephone: 000-000-0000
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