RELEASE
Exhibit
10.117
This
Release (this “Release”) is entered into by Xxxxxxx Xxxxxxx, Xxxxx Xxxxxx, and
Xxxx Xxxxxxxxxxx (each an “Officer” of the Company (as defined herein) and
collectively, the “Officers”), effective as of the 26th day of February, 2008 in
connection with the Contemplated Transactions under the terms and provisions
of
that certain Stock Purchase Agreement dated August 22, 2007, as amended (the
“Stock Purchase Agreement”), by and among NTS Communications, Inc., a Texas
corporation (the “Company”), XFone, Inc., a Nevada corporation (the
“Purchaser”), and the shareholders of the Company identified as the “Sellers” on
the signature pages of the Stock Purchase Agreement. Capitalized
terms used but not defined herein shall have the meanings ascribed to such
terms
in the Stock Purchase Agreement.
WHEREAS,
execution of this Release by each of the Officers is a condition precedent
to
the Closing of the Stock Purchase Agreement and as such is a material inducement
to the Purchaser in order for it to enter into the Stock Purchase Agreement;
and
WHEREAS,
the Purchaser would not have closed the Stock Purchase Agreement (the “Closing”)
without the execution of this Release by each and everyone of the undersigned
Officers; and
WHEREAS,
each Officer has agreed to execute this Release.
NOW,
THEREFORE, as additional consideration for the Stock Purchase Agreement and
the
covenants, representations, agreements and undertakings contained herein and
other good and valuable consideration, the receipt and sufficiency of all of
which is hereby acknowledged and intending to be legally bound, the undersigned
parties do hereby severally agree as follows:
1.
Recitals. Each
of the above referenced recitals is true and correct and incorporated into
this
Release by this reference.
2.
Release by Each
Officer. Each Officer hereby severally releases and forever
discharges the Company, the Purchaser and each of their respective officers,
directors, shareholders, employees and their successors and assigns
(collectively, “Releasees”) of and from any and all claims, causes or rights of
action, demands and damages of every kind and nature which such Officer may
now
have, whether known or unknown, anticipated or unanticipated and whether accrued
or hereafter to accrue, against Releasees, caused by or arising out of or in
any
way related to the following: (i) the business, affairs, actions
or omissions of the Company and/or the officers or directors or any other
employee or independent contractor of the Company through the date of Closing;
and (ii) any amounts due from the Company to such Officer for serving as an
officer, director or employee of the Company through the date of Closing
including any bonuses due to such Officer arising from the consummation of
the
Contemplated Transactions under the Stock Purchase Agreement, other than base
salary and benefits for the pay period ending immediately after the Effective
Date and the reimbursement of reimbursable business expenses for the pay period
ending immediately after the Effective Date. Notwithstanding anything
in this Release to the contrary, nothing contained in this Release will operate
to release, relieve or otherwise limit the rights of such Officer to (a) file
claims with andotherwise
pursue recovery under the Company’s director’s and officer’s liability insurance
or require indemnification and reimbursement from the Company for acts taken
in
their capacity as an Officer of the Company as specifically allowed under the
articles of incorporation and bylaws of the Company, each as amended and/or
restated and in force at the date of closing under the Stock Purchase Agreement
or (b) any obligations of the Purchaser arising under the Stock Purchase
Agreement, including, without limitation, Article VII and Section 8.2 of the
Stock Purchase Agreement or (c) any obligations of the Company to such Officer
arising under the Employment Agreement with such Officer executed as of the
Closing Date or (d) file claims or seek reimbursement or recovery for
reimbursable business expenses or under any Employee Benefit Plan in which
such
Officer participates.
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3.
Compromise. Each
Officer agrees that this Release is a compromise of doubtful and disputed claims
through the date of Closing, and that the consideration recited herein is not
to
be construed as an admission of any liability whatsoever by Releasees and that
Releasees expressly deny any such liability.
4.
Scope of
Release. Each Officer agrees that the consideration for this
release was delivered to secure full, complete, and final discharge of Releasees
from any and all matters hereby released as set forth in Section 2 hereof,
and
each Officer agrees that such claims, demands, actions, or causes of action
are
wholly and forever satisfied and extinguished.
5.
Covenant Not to
Xxx. Each Officer will forever refrain and desist from, either
directly or indirectly, instituting, prosecuting, or asserting against
Releasees, or any of them, any further claim, demand, action, cause of action
or
suit of any kind or nature on account of matters hereby released as set forth
in
Section 2
hereof.
6.
No Prior
Assignment. Each Officer specifically acknowledges, covenants,
represents and warrants that there has been no assignment of any right or claim
released hereby.
7.
Authority. Each
Officer represents and warrants that each is fully competent and authorized
to
execute this Release, and that upon execution this Release will be valid and
binding upon each of them. Each Officer represents and warrants that
the undersigned constitute all of the officers of the Company.
8.
Acknowledgment. Each
Officer represents and warrants that the terms of this Release have been read,
voluntarily accepted, understood by each such Officer or explained to each
such
Officer by its attorney(s), and agreed to and approved by its
attorney(s). Each Officer further represents and warrants that it has
relied upon its own judgment, knowledge and belief as to the nature and extent
of any damages which may have been suffered or sustained, or may be sustained
in
the future, with regard to the items released hereby under Section 2
hereof.
9.
Entire
Agreement. This Release constitutes the entire agreement
between the parties with respect to the releases contemplated hereby. All
previous or contemporaneous agreements, understandings, representations,
warranties and statements, oral or written are hereby superceded. Any
alterations or additions shall be effective only if reduced to writing, dated
and signed by the party against whom the enforcement thereof is or may be
sought.
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10.
Waiver. No
waiver of a breach of any of the terms, covenants or conditions of this Release
by any party shall be construed or held to be a waiver of any succeeding or
preceding breach of the same or any other term, covenant or condition herein
contained. No waiver of any default by any party hereunder shall be
implied from any omissions by either party to take any action on account of
such
default. If such default persists or is repeated, and no express
waiver shall affect a default other than as specified in such
waiver.
11.
Severability. If
any term, provision, covenant or condition of this Release is held to be
invalid, void or otherwise unenforceable to any extent by any court of competent
jurisdiction, the remainder of this Release shall not be affected thereby,
and
each term, provision, covenant or condition of this Release shall be valid
and
enforceable to the fullest extent permitted by law.
12.
Successors. Subject
to the restriction on assignment provided herein, all terms of this Release
shall be binding upon, inure to the benefit of, and be enforceable by the
parties hereto and their respective heirs, legal representatives, successors
and
permitted assigns.
13.
Assignment. No
party hereto shall assign their respective rights, obligations or interest
under
this Release in any manner.
14.
Headings. The
captions and paragraph headings used in this Release are inserted for
convenience of reference only and are not intended to define, limit or affect
the interpretation or construction of any term or provision hereof.
15.
Counterparts. This
Release may be executed in multiple copies, each of which shall be deemed an
original, but all of which shall constitute one agreement binding on all
parties.
16.
Facsimile
Signatures. In order to expedite the Contemplated Transactions
under the Stock Purchase Agreement, telecopied signatures may be used in place
of original signatures on this Release. All parties hereto intend to
be bound by the signatures on the telecopied document, are aware that other
parties will rely on the telecopied signatures, and hereby waive any and all
defenses to the enforcement of the terms of this Release based on the form
of
signature.
17.
Governing
Law. This Release shall be governed, construed and enforced in
accordance with the laws of the State of Texas.
18.
Effective
Date. The terms and provisions of this Release shall be
effective upon Closing of the Stock Purchase Agreement.
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IN
WITNESS WHEREOF, the Officer set forth below has executed this Release on this
26th day of February, 2008.
/s/
Xxxxxxx Xxxxxxx
Xxxxxxx
Xxxxxxx,
President
and CEO
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IN
WITNESS WHEREOF, the Officer set forth below has executed this Release on this
26th day of February, 2008.
/s/
Xxxxx Xxxxxx
Xxxxx
Xxxxxx,
Executive
Vice President
and
Treasurer
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IN
WITNESS WHEREOF, the Officer set forth below has executed this Release on this
26th day of February, 2008.
/s/
Xxxx Xxxxxxxxxxx
Xxxx
Xxxxxxxxxxx,
Executive
Vice President
and
Secretary
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