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Exhibit 10(viii)
RESCISSION AND MUTUAL RELEASE AGREEMENT
THIS RESCISSION AND MUTUAL RELEASE AGREEMENT (this "Agreement") is made
this 20th day of August, 2001 (the "Effective Date") by and between Stillwater
Capital Advisors, LLC, a Delaware limited liability company ("Stillwater"), and
FanZ Enterprises, Inc., a Delaware corporation ("FanZ");
WHEREAS, Stillwater and FanZ executed an Engagement Letter dated
January 1, 2001 (such letter and all amendments to such letter shall be
referred to as the "Engagement Letter") pursuant to which Stillwater agreed to
provide financial advisory services to FanZ in exchange for Five Hundred
Thousand Dollars ($500,000); and
WHEREAS, Stillwater and FanZ have agreed to rescind the Engagement
Letter so as to expedite FanZ's public offering;
NOW, THEREFORE, in consideration of the respective agreements
hereinafter set forth and for other good and valuable consideration received,
the parties agree as follows:
ARTICLE I
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RESCISSION
1.01 This Agreement shall constitute a rescission of the Engagement
Letter and shall relieve the parties of any duties and obligations under the
Engagement Letter, including, without limitation, the obligation to provide any
services or pay any fees or other expenses under the Engagement Letter. As of
the Effective Date, the parties shall treat the Engagement Letter as though it
was never executed and it is hereby void ab initio. The parties shall forego
and relinquish all rights and claims that they may have with respect to the
Engagement Letter.
ARTICLE II
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MUTUAL RELEASE AND SETTLEMENT
2.01 Stillwater, on behalf of itself and any person or entity claiming
by or in the right of Stillwater, including its members, does hereby forever
release and discharge, with prejudice, FanZ, and its officers, directors,
agents, partners, shareholders, unit holders, managers, members, trustees,
executors, promoters, past and present employees, sureties, bonding companies,
insurers, representatives, attorneys, affiliates, subsidiaries, parents, and
the successors and assigns of all of them, jointly and severally, from (i) any
and all of FanZ's obligations and duties, including the obligation to pay any
fees or other expenses of Stillwater or its members arising out of, in
connection with, relating to or concerning the Engagement Letter, and (ii) any
and all claims, demands, causes of action, actions, lawsuits, obligations,
liabilities or losses, costs, expenses, attorneys' fees, judgments, awards, or
decrees, and damages in whatever character, nature or kind, including, but not
limited to, actual damages and punitive damages, known or unknown, suspected or
unsuspected, latent or patent, which now exist, or may heretofore have existed,
whether at law or in equity, to the Effective Date, which arise, or grow out
of, or are
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connected with, or which in any manner involve, concern or relate to
Stillwater's rights, duties and obligations under the Engagement Letter.
2.02 FanZ, on behalf of itself and any other person or entity claiming
by or in the right of FanZ, does hereby forever release and discharge, with
prejudice, Stillwater and its officers, directors, agents, partners,
shareholders, unit holders, managers, members, trustees, executors, promoters,
past and present employees, sureties, bonding companies, insurers,
representatives, attorneys, affiliates, subsidiaries, parents, and the
successors and assigns of all of them, jointly and severally, from (i) any and
all of Stillwater's duties and obligations arising out of, in connection with,
relating to or concerning the Engagement Letter, and (ii) any and all claims,
demands, causes of action, actions, lawsuits, obligations, liabilities or
losses, costs, expenses, attorneys' fees, judgments, awards, or decrees, and
damages in whatever character, nature or kind, including, but not limited to,
actual damages and punitive damages, known or unknown, suspected or
unsuspected, latent or patent, which now exist, or may heretofore have existed,
whether at law or in equity, to the Effective Date, which arise, or grow out
of, or are connected with, or which in any manner involve, concern or relate to
FanZ's rights, duites and obligations under the Engagement Letter.
2.03 These provisions shall not be deemed to be an admission or
acknowledgment by any of the parties hereto of any liability to any of the
other parties hereto or to any other person or entity.
2.04 As a further inducement for this Agreement, each party expressly
waives the provisions of any and all ordinances, statutes, rules, regulations,
and/or common law principles and doctrines providing that a general release may
not extend to claims which such party does not know or suspect to exist in such
parties' favor at the time of executing the release, which if known by such
party might have materially affected such parties settlement with the other.
Each party acknowledges that this Agreement shall extend and apply to all
unknown, unsuspected and unanticipated claims, and/or losses, and/or damages,
which are related to such party, as well as those which are specifically
referred to herein, and each party hereby affirms that it has affixed its
signature hereto voluntarily and of its own free will and accord.
ARTICLE III
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ADDITIONAL AGREEMENT OF THE PARTIES
3.01 From and after the Effective Date, the parties hereto shall from
time to time, at the reasonable request of any other party and without further
consideration, promptly do, execute and deliver, or promptly cause to be done,
executed and delivered, all such further acts, things and instruments as may be
reasonably requested to evidence and give effect to this Agreement.
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ARTICLE IV
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SURVIVAL
4.01 All of the provisions in this Agreement or in any document or
other instrument executed or delivered pursuant to or in connection with this
Agreement shall, unless waived in writing, survive and continue in force and
effect from and after the Effective Date.
ARTICLE V
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MISCELLANEOUS
5.01 This Agreement shall be binding upon, and shall inure to the
benefit of and be enforceable by, the parties hereto and their respective legal
representatives, successors and assigns, but no other person shall acquire or
have any rights under this Agreement.
5.02 This Agreement contains the entire agreement and understanding
among the parties hereto with respect to the subject matter hereof and thereof
and supersedes all prior negotiations and understandings, and there are no
agreements other than those set forth, provided for or referred to herein or
therein. Neither this Agreement nor any provisions hereof may be modified,
amended, waived, discharged or terminated, in whole or in part, except in
writing signed by the party to be charged. Any party may extend the time for or
waive performance of any obligation of any other party or compliance by any
other party with any of the provisions of this Agreement only in a writing
signed by the party to be charged. No waiver of any such provisions or of any
breach of or default under this Agreement shall be deemed or shall constitute a
waiver of any other provisions, breach or default, nor shall any such waiver
constitute a continuing waiver.
5.03 This Agreement shall be governed and construed and enforced in
accordance with the laws of the State of Delaware applicable to contracts made
and to be performed exclusively in that State without giving effect to the
principles of conflict of laws.
5.04 The article headings in this Agreement are for reference purposes
only and shall not define, limit or affect the meaning or interpretation of
this Agreement.
5.05 This Agreement may be executed in two or more counterparts, each
of which shall be deemed to be an original, but all of which shall constitute
one and the same instrument and in making proof of this Agreement, it shall not
be necessary to produce or account for more than one such counterpart.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the Effective Date.
STILLWATER FANZ
Stillwater Capital Advisors, LLC FanZ Enterprises, Inc.
By: /s/ J. Roe Hitchcock By: /s/ J. Roe Hitchcock
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Name: J. Roe Hitchcock Name: J. Roe Hitchcock
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Its: Member Its: Chief Executive Officer
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