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EXHIBIT 10.1
MUTUAL RELEASE AND SETTLEMENT AGREEMENT
THIS MUTUAL RELEASE AND SETTLEMENT AGREEMENT (the "Agreement") is made
and entered into as of this 4th day of October, 1997, by and among
InterAmericas Communications Corporation ("ICCA"), Maroon Bells Capital
Partners, Inc. ("Maroon Bells"), Xxxxxxxx Xxxxxxxxx ("Xxxxxxxxx"), Xxxx X. Xxxxx
("Xxxxx") and Xxxxxx Mageira ("Mageira").
A. WHEREAS, a dispute has arisen between ICCA, on the one hand, and
Maroon Bells, Swindells, Xxxxx and Mageira, on the other hand, with respect to
certain matters relating to or arising out of, among other things, certain
proposed Consulting Agreements (the "Consulting Agreements") between ICCA and
each of Xxxxx and Mageira;
B. WHEREAS, in consideration of the parties' mutual desire to resolve
their disputes, ICCA, Maroon Bells, Mageira, Xxxxx and Xxxxxxxxx desire to enter
into this Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. INCORPORATION OF RECITALS. The recitals contained in Paragraphs A
and B are incorporated by reference herein as if at this point set forth in
full.
2. SETTLEMENT
a. Matters Settled. Subject to the full and complete payment of the
items listed under Section 2(b) hereof, this Agreement settles all the existing
claims, disputes and matters by and between ICCA, on the one hand, and Maroon
Bells, Swindells, Xxxxx and/or Mageira, on the other hand, relating to the right
to receive compensation, if any, to be paid to them as a result of ICCA's
pending 144A offering of its Units consisting of Senior Notes and Warrants (the
"Offering"), the Consulting Agreements and any other matters arising out of or
relating to the foregoing or occurring up to the date hereof. If the payment of
all items listed under Section 2 (b) hereof have not been completely and fully
made by March 31, 1998, then all claims purported to be settled and released
hereunder (the "Claims") shall be reinstated in full as if there had never been
settlement and release and the recipient of any partial payments may return such
partial payment and pursue all remedies he or it may have with respect to the
Claims as if such partial payments had not been made.
b. Terms of Settlement. As a further inducement to execute this
Agreement, and as recognition of the valuable services provided by each of
Maroon Bells, Swindells, Mageira and Xxxxx to ICCA, ICCA agrees to, make the
following payments, subject to the conditions hereinafter set forth:
(i) ICCA shall pay to Maroon Bells a cash fee in the aggregate
amount of $500,000 subject to and upon consummation of the Offering;
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(ii) ICCA shall issue and grant to each of Xxxxx and Mageira on the
date hereof (A) 250,000 shares of Common Stock .001 par value per share, of the
Company (the "Company Common Stock"); and (B) options to acquire 250,000 shares
of the Company Common Stock, at an exercise price of $2.13 per share, fully
vested as of the date of the grant in the form attached hereto as Exhibit A; and
(iii) ICCA shall upon execution of this Agreement reimburse Maroon
Bells, Swindells, Xxxxx and Xxxxxxx for the expenses incurred in connection with
performing services for ICCA as listed on Exhibit B.
c. Registration Rights. The Company agrees to register under the
Securities Act of 1933, as amended (the "Securities Act"), within 90 days
following consummation if the Offering, the shares of Company Common Stock
referred to in Section 2 (b) (ii), above (including the shares underlying the
options referred to therein) subject to the agreement of Maroon Bells, Xxxxx and
Mageira not to sell, transfer, pledge or otherwise encumber such shares for a
period of 180 days (or such shorter period as is applicable to members of ICCA
management) following consummation of the Offering. At the election of Maroon
Bells, Xxxxx and Mageira, any registration statement filed pursuant to this
Section 2(c) shall also cover any additional "restricted" shares currently held
by them, including shares issuable upon the exercise or conversion of any
outstanding securities or options held by them.
3. MAROON BELLS, SWINDELS, MAGEIRA AND XXXXX RELEASE. Maroon Bells,
Swindells, Magyar and Xxxxx and their respective assigns and transferees, and
each of them (collectively, the "Maroon Bells Parties"), release and forever
discharge ICCA and its respective assigns, transferees and subsidiaries, and
each of them (collectively, the "ICCA Parties"), of and from any and all claims,
demands, damages, debts, liabilities, actions, causes of action, suits,
contracts, controversies, agreements, accounts, reckonings, obligations and
judgments, whether in law or equity, which the parties to this Agreement or any
of them now have, own or hold, or at any time previously ever had, owned or
held, whether personal, representatively, derivatively or otherwise, based upon,
related to, or by reason of any action, contract (express, implied in fact,
implied in law, or otherwise), lien, liability, law, matter, cause, action,
lawsuit, fact, thing, act, omission or whatever occurring or existing at any
time previously and to and including the date of this Agreement. Notwithstanding
the forgoing, none of the Maroon Xxxx Parties release the ICCA Parties from any
Claims for contribution or indemnification under bylaws, articles, agreements,
insurance policies or otherwise against Claims of third parties and the costs
and expenses to defend such Claims.
4. ICCA RELEASE. The ICCA Parties and each of them, release and forever
discharge each of the Maroon Bells Parties, of and from any and all claims,
demands, damages, debts, liabilities, actions, causes of action, suits,
contracts, controversies, agreements, accounts, reckonings, obligations and
judgments, whether in law or equity, which the parties to this Agreement or any
of them now have, own or hold, or at any time previously ever had, owned or
held, whether personal, representatively, derivatively or otherwise, based upon,
related to, or by reason of any action, contract (express, implied
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in fact, implied in law, or otherwise), lien, liability, law, matter, cause,
action, lawsuit, fact, thing, act, omission or whatever occurring or existing at
any time previously and to and including the date of this Agreement.
5. RESIGNATION OF XXXXX AND MAGEIRA. Xxxxx and Mageira each hereby
agrees to resign from the Board of Directors of ICCA effective as of the date
that the items listed in Sections 2(b)(ii) and 2(b)(iii) have been fully
delivered or paid, as the case may be.
6. REPRESENTATIONS BY THE PARTIES. Each of the parties warrants and
represents to the others that none of them has assigned or transferred or
purported to assign or transfer to any person not a party to this Agreement any
matter or any part or portion of any matter covered by this Agreement, and each
of them agrees to indemnify and hold harmless the others from and against any
claim, demand, damage, debt, liability, account, reckoning, obligation, cost,
expense, lien, action or cause of action (including attorneys' fees and costs
paid or incurred) based upon or in connection with or arising out of any such
assignment or transfer or purported or claimed assignment of transfer.
7. NO ADMISSION. The execution of this Agreement effects the settlement
of claims which are contested and denied. Nothing contained in this Agreement
shall be construed as an admission by any part of any liability of any kind to
the other parties. Each party acknowledges that the others expressly deny that
any of them is in any way liable or obligated to the others.
8. ENTIRE AGREEMENT. This Agreement contains the entire understanding
of the parties; there are no representations, covenants or undertakings other
than those expressly set forth in this Agreement. Each party acknowledges that
no other party or any agent or attorney of any other party has made any promise,
representation or warranty whatsoever, express, implied or statutory, other than
those contained in this Agreement, to induce them to execute this Agreement. The
parties acknowledge that they have not executed this Agreement in reliance upon
any such promise, representation or warranty not specifically contained in this
Agreement.
9. BINDING ON SUCCESSORS. This Agreement and the covenants and
conditions contained in it shall apply to, be binding upon and inure to the
benefit of the respective heirs, administrators, executors, legal
representatives, assigns, successors and agents of each of the parties.
10. SEVERABILITY. The provisions of this Agreement are severable;
should any provision for any reason be held to be unenforceable, the remaining
provisions shall nonetheless be of full force and effect.
11. GOVERNING LAW. This Agreement shall in all respects be governed by
and construed in accordance with the laws of the State of Florida without
reference to any conflicts of law principles.
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12. JOINT PREPARATION. This Agreement is to be deemed to have been
jointly prepared by the parties, and any uncertainty or ambiguity in it shall
not be interpreted against any of the parties, but according to the application
of the rules of interpretation of contracts. Any disclosure by ICCA of this
Agreement or the transactions reflected or contemplated hereby shall require the
prior consent of the Maroon Bells Parties; provided, that this Agreement and the
transactions reflected or contemplated hereby may be disclosed to the extent
that such disclosure is required, based upon the advice of legal counsel, by
applicable law including, without limitation by the Securities Act of 1933, as
amended.
13. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but both of which
together shall constitute one and the same Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
INTERAMERICAS COMMUNICATIONS
CORPORATION
By: /s/ Xxxxxxxx X. Northland
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Its: President, Xxxxxxxx X. Northland
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MAROON BELLS CAPITAL PARTNERS, INC.
By: /s/ Xxxxxxxx Xxxxxxxxx
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Its: President
---------------------------------
/s/ Xxxx X. Xxxxx
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XXXX X. XXXXX
/s/ Xxxxxxxx Xxxxxxxxx
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XXXXXXXX XXXXXXXXX
/s/ Xxxxxxx X. Xxxxxxx
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XXXXXXX X. XXXXXXX
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STOCK OPTION AGREEMENT
This is a Stock Option Agreement, dated as of the 4th day of October
1997 (the "Grant Date"), by and between INTERAMERICAS COMMUNICATIONS CORPORATION
(the "Grantor"), and Xxxx Xxxxx (the "Optionee").
WITNESSETH:
WHEREAS, in consideration of prior services rendered by the Optionee to
the Grantor and certain promises made by the Optionee to the Grantor, the
Grantor desires to grant the Optionee an option to purchase TWO HUNDRED FIFTY
THOUSAND (250,000) shares of Common Stock, par value $.001 per share ("Common
Stock") of the Grantor, upon the terms and subject to the conditions hereinafter
set forth.
NOW, THEREFORE, the Grantor hereby agrees, for the benefit of the
Optionee, as follows:
SECTION 1. GRANT OF OPTION. Subject to the provisions of this
Agreement, the Grantor hereby grants to the Optionee an option (the "Option") to
purchase from the Grantor TWO HUNDRED FIFTY THOUSAND (250,000) shares of Common
Stock (after the exercise of the Option and the acquisition of the shares, the
"Option Shares"), at the price of $2.13 per whole share.
SECTION 2. EXERCISE OF OPTION.
(1) The Option may be exercised in whole or in part at any
time commencing on the date hereof and ending on the tenth anniversary hereof by
the Optionee's delivering to the Grantor a written notice specifying the number
of the Option Shares that the Optionee wishes to purchase pursuant to the Option
and tendering the Option Price multiplied by the number of such Option Shares.
The Option Price of any Option Shares purchased shall be paid in cash, by
certified or official bank check or by money order. The Optionee shall be deemed
to be a holder of the Option Shares immediately upon, and to the extent of, the
exercise of this Option as set forth above.
(2) Number of Shares Exercisable. Each exercise of an Option
hereunder shall reduce the total number of Option Shares that may thereafter be
purchased under this Option.
SECTION 3. SHARE CERTIFICATES. Upon each exercise of the right to
purchase Option Shares pursuant to this Option, prior to the time that a
registration statement shall have been filed and become effective under the
Securities Act of 1933, as amended, with respect to the Option Shares as
required by that certain Mutual Release and Settlement Agreement of even date
herewith between the Grantor, the Optionee and certain other parties, the
Grantor shall cause one or more stock certificates evidencing the Optionee's
ownership of the Option Shares to be issued to the Optionee. A Legend in
substantially the form set forth below shall be placed upon each stock
certificate representing the Option Shares:
"The shares of stock represented by this
certificate have been acquired directly from
an affiliate of the issuer without being
registered under the Securities Act of 1933,
as amended ("Act"), or the securities laws
of any state or other jurisdiction,
including the Florida Securities Act, and
are restricted securities as that term is
defined under Rule 144 promulgated under the
Act. These shares may not be sold,
transferred, pledged, hypothecated or
otherwise disposed of in any manner (a
"Transfer") unless they are registered under
the Act and the securities laws of all
applicable states and other jurisdictions or
unless the request for Transfer is
accompanied by a favorable opinion of
counsel satisfactory to the issuer, stating
that such Transfer will not result in a
violation of such laws."
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SECTION 4. ANTI-DILUTION PROVISIONS.
(1) Adjustment for Recapitalization. If the Grantor shall at
any time subdivide its outstanding shares of Common Stock by recapitalization,
reclassification or split-up thereof, or if the Grantor shall declare a stock
dividend or distribute shares of Common Stock to its shareholders, the number of
Option Shares then subject to this Option immediately prior to such subdivision
shall be proportionately increased and the exercise price shall be
proportionately decreased, and if the Grantor shall at any time combine the
outstanding shares of Common Stock by recapitalization, reclassification or
combination thereof, the number of option shares then subject to this Option
immediately prior to such combination shall be proportionately decreased and the
exercise price shall be proportionately increased. Any such adjustments pursuant
to this Section 4(a) shall be effective at the close of business on the
effective date of such subdivision or combination or if any adjustment is the
result of a stock dividend or distribution then the effective date for such
adjustment based thereon shall be the record date therefor.
(2) Adjustment for Reorganization, Consolidation, Merger, Etc.
In case of any reorganization of the Grantor or in case the Grantor shall
consolidate with or merge into another corporation or convey all or
substantially all of its assets to another corporation, then, and in each such
case, the Optionee upon the exercise of this Option at any time after the
consummation of such reorganization, consolidation, merger or conveyance, shall
be entitled to receive, in lieu of the Option Shares issuable upon the exercise
of this Option prior to such consummation, the securities or property to which
the Optionee would have been entitled upon such consummation if the Optionee had
exercised this Option immediately prior thereto; in each such case, the terms of
this Option shall be applicable to the securities or property receivable upon
the exercise of this Option after such consummation.
(3) Notice of Certain Events. If at any time:
(A) the Grantor shall declare a dividend or other
distribution of Common Stock payable otherwise than in cash at the same
rate as the immediately preceding regular dividend or in Common Stock;
or
(B) the Grantor shall authorize the granting to the
holders of the Common Stock of rights to subscribe for or purchase any
shares of capital stock of any class or of any other rights; or
(C) there shall be any plan or agreement of
reorganization, or reclassification of the capital stock, of the
Grantor, or consolidation or merger of the Grantor with, or sale of all
or substantially all of its assets to, another corporation; or
(D) there shall be a voluntary or involuntary
dissolution, liquidation or winding up of the Grantor
then the Grantor shall give to the Optionee at the address of Optionee, at least
20 days prior to the applicable record date, a written notice summarizing such
action or event and stating the record date for any such dividend or rights (or
if a record is not to be taken, the date as of which the holders of Common Stock
of record to be entitled to such dividend or rights are to be determined), the
date on which any such reorganization, reclassification, consolidation, merger,
sale of assets, dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected the holders of Common Stock
of record shall be entitled to effect any exchange of their shares of Common
Stock for securities or other property deliverable upon any such reorganization,
reclassification, consolidation, merger, sale of assets, dissolution,
liquidation or winding up.
(4) Except as otherwise expressly provided herein, the
issuance by the Grantor of shares of its capital stock of any class, or
securities convertible into shares of capital stock of any class, either in
connection with direct sale or upon the exercise of rights or warrants to
subscribe therefor, or upon conversion of shares or obligations of the Grantor
convertible into such shares or other securities, shall not affect, and no
adjustment by reason thereof shall be made with respect to the number of or
exercise price of Option Shares then subject to this Option.
(5) Without limiting the generality of the foregoing, the
existence of this Option shall not affect in any manner the right or power of
the Grantor to approve or the Grantor to make, authorize or consummate (i) any
or all adjustments, recapitalizations, reorganizations or other changes in the
Grantor's
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capital structure or its business; (ii) any merger or consolidation of the
Grantor; (iii) any issuance by the Grantor of debt securities, or preferred or
preference stock that would rank above the Option Shares subject to outstanding
Options; (iv) the dissolution or liquidation of the Grantor; (v) any sale,
transfer or assignment of all or any part of the assets or business of the
Grantor; or (vi) any other corporate act or proceeding, whether of a similar
character or otherwise.
SECTION 5. NO RIGHTS AS SHAREHOLDER. The Optionee shall have no rights
as a shareholder in respect to the Option Shares as to which the Option shall
not have been exercised and payment made as herein provided.
SECTION 6. ISSUANCE OF SHARES. As a condition of any sale or issuance
of Option Shares upon exercise of this Option, the Grantor may require such
agreements or undertakings, if any, as the Grantor may deem necessary or
advisable to assure compliance with any such applicable securities or other law
or regulation including, but not limited to, the following:
(1) a representation and warranty by the Optionee to the
Grantor and the Grantor, at the time this Option is exercised, that she is
acquiring the Option Shares to be issued to her for investment and not with a
view to, or for sale in connection with, the distribution of any such Option
Shares; and
(2) a representation, warranty and/or agreement to be bound
by any legends that are, in the opinion of the Grantor, necessary or appropriate
to comply with the provisions of any securities law deemed by the Grantor or the
Grantor to be applicable to the issuance of the Option Shares and are endorsed
upon the Option Share certificates.
SECTION 7. MISCELLANEOUS PROVISIONS.
(1) Notices. Unless otherwise specifically provided herein,
all notices to be given hereunder shall be in writing and sent to the parties by
certified mail, return receipt requested, to each party's respective address as
set forth in the books and records of the Grantor, or to such other address as
such party shall give to the other party hereto by a notice given in accordance
with this Section. Except as otherwise provided in this Agreement, notice shall
be effective when deposited in the United States mails properly addressed and
postage prepaid. If such notice is sent other than by the United States mails,
such notice shall be effective when actually received by the party being
notified.
(2) Assignment. This Agreement may not be assigned in whole
or in part by the Optionee.
(3) Further Assurances. The Optionee shall execute and
deliver such other instruments and do such other acts as may be necessary to
effectuate the intent and purposes of this Agreement.
(4) Captions. The captions contained in this Agreement are
inserted only as a matter of convenience and in no way define, limit, extend or
prescribe the scope of this Agreement or the intent of any of the provisions
hereof.
(5) Completeness and Modification. This Agreement
constitutes the entire understanding between the parties hereto and supersedes
all prior and contemporaneous agreements or understandings among the parties
hereto concerning the grant by the Grantor to the Optionee of stock options and
shall not be terminated or amended except in writing executed by each of the
parties hereto.
(6) Waiver. The waiver of a breach of any term or condition
of this Agreement shall not be deemed to constitute the waiver of any other
breach or the same or any other term or condition.
(7) Severability. The invalidity or unenforceability, in
whole or in part, of any covenant, promise or undertaking, or any section,
subsection, paragraph, sentence, clause, phrase or word or of any provisions of
this Agreement shall not affect the validity or enforceability of the remaining
portions thereof.
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(8) Construction. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Florida without
regard to any conflict of law rule or principle that would result in the
application of the laws of another jurisdiction.
(9) Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the heirs, successors, estate and personal
representatives of the Optionee and the Grantor.
IN WITNESS WHEREOF, the Grantor has executed this Agreement for the
benefit of the Optionee as of the 4th day of October, 1997.
INTERAMERICAS COMMUNICATIONS
CORPORATION., the Grantor
By: /s/ Xxxxxxxx X. Northland
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Name: Xxxxxxxx X. Northland
Title: President
