Exhibit B
RELEASE AND INDEMNITY
This RELEASE AND INDEMNITY, dated as of September 25, 2002, and
effective as of midnight, September 30, 2002 (the "Effective Date"), is between
XXXXXX0.XXX, INC., a Delaware corporation (the "Company"), INTER ASSET JAPAN
CO., LTD., a Japanese corporation ("IAJ"), and XXXXXXXX XXXXX, an individual
residing at 00 Xxxxx Xxxx Xxxx, Xxxxxxx, XX 00000 ("Xxxxx").
WHEREAS, in 1999 Xxxxx and the Company have entered into an Employment
Agreement, (the "Employment Agreement"), and Xxxxx is currently the Chief
Executive Officer and Chief Financial Officer and a Director of the Company;
WHEREAS, Xxxxx and the Company entered into a License Agreement dated in
1999 (the "Xxxxx License Agreement"), pursuant to which Xxxxx granted the
Company a license to use certain domain names owned by Xxxxx (the "Xxxxx Domain
Names"); and
WHEREAS, the Company and Xxxxx wish to terminate the Employment
Agreement, the Xxxxx License Agreement and all other agreements or arrangements
between them on terms and conditions hereinafter set forth and to release each
other as hereinafter provided;
NOW, THEREFORE, the parties hereto hereby agree as follows:
Section 1. Definitions.
As used herein, the following term shall have the following meaning:
"Xxxxx Agreements" means the Employment Agreement, the Xxxxx License
Agreement and any and all other written or oral agreements, arrangements and
understandings existing as of the Effective Date between the Company and Xxxxx.
Section 2. Termination of the Xxxxx Agreements/Release.
(a) The Company and Xxxxx hereby agree that any Xxxxx Agreements in
effect on the date hereof shall be terminated and shall have no further legal
force or effect on and from the Effective Date.
(b) Xxxxx hereby releases and discharges irrevocably and
unconditionally, as of the Effective Date, the Company, and its subsidiaries,
affiliates, successors and assigns, as well as its officers, directors,
employees, shareholders, agents and representatives (collectively, the "Company
Released Parties"), from any and all claims, liabilities, obligations, actions,
suits, causes of action, damages and expenses of any nature whatsoever, at law
or in equity, known or unknown, which Xxxxx or anyone claiming through him had,
now has or hereafter may have (collectively, the "Xxxxx Claims") against any of
the Company Released Parties, from the beginning of time to the Effective Date,
including, without limitation, any Xxxxx Claims arising out of the Xxxxx
Agreements.
(c) The Company hereby releases and discharges irrevocably and
unconditionally, as of the Effective Date, Xxxxx, and Braun's subsidiaries,
affiliates, successors, assigns and representatives (collectively, the "Xxxxx
Released Parties") from any and all claims, liabilities, obligations, actions,
suits, causes of action, damages and expenses of any nature whatsoever, at law
or in equity, known or unknown, which the Company or anyone claiming through the
Company had, now has or hereafter may have (collectively, the "Company Claims")
against any of the Xxxxx Released Parties, from the beginning of time to the
Effective Date, including, without limitation, any Company Claims arising out of
the Xxxxx Agreements, except for any Company Claims arising by reason of (i)
Xxxxx'x willful misconduct or bad faith in connection with the Company's affairs
or (ii) willful false certification in respect of the Company's 10-Q filings for
the quarters ending June 30, 2002 and the Effective Date.
Section 3. Resignation of Xxxxx/Cooperation with the Company.
(a) Xxxxx shall resign from the offices of Director, and all executive
offices he holds in the Company, effective as of the Effective Date.
Contemporaneously with the execution of this Agreement, Xxxxx shall execute and
deliver a letter of resignation to the Board of Directors of the Company
substantially in the form of Exhibit A attached hereto. Xxxxx'x resignation as
Director shall be effective on the Effective Date. His resignation in all
executive capacities shall be effective with the filing of the Company's 10-Q
form for the quarter ending on the Effective Date.
(b) Xxxxx shall deliver to the Company upon the Effective Date any
tangible assets of the Company in his personal possession.
(c) Subsequent to his resignation, Xxxxx shall continue to assist the
Company in formulating responses to the letter dated July 31, 2002 from the
Securities and Exchange Commission.
(d) Xxxxx shall provide any necessary assistance in respect to ensuring
that the following domain names are duly registered in the ownership of the
Company:
XxxxxxxXX.xxx; Xxxxxx0.xxx; Foreign TV.ComJapan; Xxxxxx0XX.xxx; and
Streaming XXX.xxx.
Section 4. Indemnity.
The Company shall indemnify and hold Xxxxx harmless from and against
any and all expenses, obligations, damages and liabilities, including reasonable
attorney's fees and expenses (collectively, "Losses") he incurs in connection
with (i) any actions approved by the Board of Directors of the Company taken by
Xxxxx in the course of his employment or other actions reasonably within the
scope of Xxxxx'x authority as Director and an executive officer of the Company;
provided, that such indemnity shall not apply to any matters, acts or omissions
constituting willful misconduct or bad faith with respect to the Company's
affairs.
In addition, IAJ shall indemnify and hold Xxxxx harmless for any Losses
he incurs in connection with the operations of the Company between the Effective
Date and the filing of the Company's 10Q for the period ending September 30,
2002; provided, that such indemnity shall not apply to any matters, acts or
omissions relating to the said 10Q or to any actions taken by Xxxxx without the
express approval of the Company's Board of Directors.
Section 5. Governing Law.
This Release shall be governed by, and construed in accordance with, the
laws of the State of New York.
Section 6. Successors, etc.
This Release shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.
Section 7. Arbitration.
Any dispute, controversy or claim arising out of or in connection with
this Release which is not resolved through good faith discussions between the
parties hereto shall be finally settled by arbitration. The arbitration shall be
held in New York City, New York, in accordance with the rules then in effect of
the American Arbitration Association. The arbitration shall be conducted by one
arbitrator. The arbitrator shall have the authority to allocate between the
parties the cost of arbitration in such equitable manner as the arbitrator may
determine. The prevailing party shall be entitled to receive reimbursement of
its reasonable expenses incurred in connection with such arbitration. Judgment
upon the award so rendered may be entered in any court having jurisdiction or
application, or application may be made to such court for judicial acceptance of
any award and an order of enforcement, as the case may be.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
XXXXXX0.XXX, INC. INTER ASSET JAPAN CO., LTD.
By: /s/ I. XXXXXXX XXXX By:/s/ XXXX XXXXXXXXXX
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Name: I. Xxxxxxx Xxxx Name: Xxxx Xxxxxxxxxx
Title: Chairman Title: President
/s/ XXXXXXXX XXXXX
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XXXXXXXX XXXXX
