Exhibit 10.16
Mediacom Termination and Release Agreement
TERMINATION AGREEMENT
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This Termination Agreement (hereinafter "Termination Agreement") is entered into
as of the 31/st/ day of January, 2001, by and between Mediacom LLC ("Mediacom")
and SoftNet Systems, Inc. ("SoftNet"). Mediacom and SoftNet will be referred to
collectively as "the Parties."
WHEREAS, the Parties entered into a Stock Purchase Agreement and a Stockholder
Agreement on or about November 4, 1999 (collectively, the "Agreement"), a true
and correct copy of said Agreement being attached hereto and incorporated herein
in full as Exhibit A;
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WHEREAS, the Parties desire to terminate the Agreement and all obligations
thereunder without admission or denial of breach or liability by either party
thereto;
NOW THEREFORE, the Parties in consideration of the following conditions,
covenants and promises, agree as follows:
1. The Parties agree that the terms of this Termination Agreement are and
shall remain CONFIDENTIAL and that any disclosure of same, without the
written consent of the other Party, will be a material breach of this
Termination Agreement. Capitalized terms not otherwise defined herein
shall be defined according to the Agreement.
2. SoftNet absolutely and unconditionally guarantees the prompt and
punctual performance of all obligations of ISP Channel, Inc. ("ISP
Channel") under the Transition Agreement of even date herewith between
ISP Channel and Mediacom. In the event of a default of any such
obligation by ISP Channel, Mediacom having made written demand on ISP
Channel which demand has gone unsatisfied for a period of 48 hours,
Mediacom shall have the right to demand (without any further attempt at
collection) that SoftNet satisfy the unfulfilled obligation by
providing written notice detailing the failure of performance by ISP
Channel, and SoftNet shall fulfill such obligation within 48 hours
thereafter.
(a) SoftNet hereby warrants and represents: (i) it has all
requisite corporate power and corporate authority to execute
and deliver this Guarantee and to perform its obligations
hereunder; (ii) the execution and delivery of this Guarantee
by SoftNet in accordance with the terms hereof, and the
performance of the transactions contemplated hereunder by
SoftNet in the circumstances set forth above, have been duly
and validly approved by its Board of Directors and by all
other corporate action, if any, necessary on behalf of
SoftNet; (iii) the obligations imposed on SoftNet under this
Guarantee are valid, legal and binding obligations of SoftNet
enforceable against it in accordance with their terms.; (iv)
the execution and delivery of this Guarantee and the
consummation of the transactions contemplated hereby by
SoftNet will not (A) violate any law, regulation, order or
decree, or (B) conflict with or result in any breach of, or
constitute a default under, SoftNet's corporate charter or
bylaws, or any agreement or contract to which it is a party or
by which it or its assets are bound or affected.
(b) SoftNet hereby waives notice of acceptance of this Guaranty.
Mediacom and ISP Channel may at any time, and from time to
time, without notice to or consent of SoftNet and without
impairing or releasing the obligations of SoftNet hereunder:
(i) modify, release, exchange, extend or renew any obligation
or liability of ISP Channel under the Transition Agreement,
(ii) exercise or refrain from exercising any rights under the
Transition Agreement and (iii) compromise or subordinate any
obligation or liability of ISP Channel. Any other suretyship
defenses are hereby waived by SoftNet.
3. With respect to the 3,500,000 shares of SoftNet common stock issued
under the Agreement to Mediacom (the "Shares"), the parties agree as
follows: On January 31, 2001, Mediacom shall return, transfer and
assign to SoftNet 1,300,000 Shares (the "Returned Shares") and shall
retain and shall continue as the absolute and unconditional registered
and beneficial holder of the remaining 2,200,000 Shares (the "Retained
Shares"). SoftNet has caused 1,116,518 of the Retained Shares to be
registered under the Securities Act and the remaining 1,083,482 are
Unrestricted Shares which will continue to be subject to the
provisions of the Registration Rights Agreement between the Parties,
dated November 4, 1999, which Registration Rights Agreement shall
remain in full force and effect in accordance with its terms. On
January 31, 2001, SoftNet will deliver to Mediacom certificates for the
Retained Shares and Mediacom will deliver to SoftNet certificates for
the Returned Shares. The certificates for the Retained Shares that have
been registered shall not bear any restrictive legends whatsoever and
shall be accompanied by a Certificate signed both by the Chief
Executive Officer and General Counsel of SoftNet to the effect that
such Retained Shares have been registered pursuant to a Registration
Statement which has been declared effective by the Securities Exchange
Commission. The remaining Retained Shares may bear a legend to the
effect that they have not been registered under the Securities Act of
1933 and are subject to a Registration Rights Agreement between
Mediacom LLC and SoftNet Systems Inc. dated November 4, 1999.
4. The Agreement is hereby terminated in all respects. The terms of the
Agreement shall be of no further force and effect and are superseded in
full by this Termination Agreement.
5. Mediacom hereby releases and forever discharges SoftNet in every one of
its capacities, from any and all actions, claims, demands, suits, fees,
costs and liabilities whatsoever, whether known or unknown, presently
existing, whether or not asserted, and whether found in fact or law or
in equity, existing at any time, including but not limited to those
that may have arisen under the Agreement and SoftNet's Guarantee of ISP
Channel, Inc.'s obligations under the Affiliate Agreement, other than
those created by this Termination Agreement and the Termination
Agreement.
6. SoftNet hereby releases and forever discharges Mediacom in every one of
its capacities, from any and all actions, claims, demands, suits, fees,
costs and liabilities whatsoever, whether known or unknown, presently
existing, whether or not asserted, and whether found in fact or law or
in equity, existing at any time, including but not limited to those
that may have arisen under the Agreement, other than those created by
this Termination Agreement and the Transition Agreement.
7. As further consideration for this Termination Agreement, SoftNet and
Mediacom acknowledge, represent and warrant that the matters herein
released are not limited to matters that are known or disclosed. The
Parties hereby acknowledge that they have read, understand and have had
counsel explain to them, and hereby waive any and all right and benefit
it now has or may have in the future, conferred upon it by Section 1542
of the Civil Code of the State of California, which provides:
"A GENERAL RELEASE DOES NOT EXTEND TO THE 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."
8. The Parties agree that this Termination Agreement is the result of a
compromise and that it shall not be deemed or construed to admit or
deny liability.
9. The Parties hereby represent and warrant that they are the owners of
the claims being released hereby, they have not previously assigned or
transferred or purported to transfer any claim or portion thereof that
is released hereby to any other person or entity that is not a
signatory of this Termination Agreement. The Parties hereby represent
and warrant that there are no liens, or claims of liens, or assignments
in law or equity or otherwise, of or against the claims released
herein; and that they are fully entitled to give this complete release
and discharge. The Parties will indemnify and save harmless each other
from any loss, claim, lien, expense, demand, or cause of action of any
kind or character through the assertion by any party or stranger hereto
of a claim relating to the warranty set forth in this paragraph.
10. The Parties acknowledge that this Termination Agreement, together with
the Registration Agreement and Transition Agreement, constitutes the
entire agreement and understanding between the Parties with respect to
the subject matter hereof and supersedes all prior discussions,
documents, agreements and prior course of dealing. between the parties.
The parties acknowledge that no representations or promises concerning
the terms and effects of this Termination Agreement have been made,
other than those contained herein, and in executing this Termination
Agreement, they do not rely, and have not relied, upon any
representations or statements not set forth herein with regard to the
subject matter, basis or effect of this Termination Agreement or
otherwise.
11. The Parties acknowledge that they have been represented with respect to
this Termination Agreement by legal counsel of their own choosing, that
they have read this Termination Agreement and had it fully explained to
them by counsel, and are fully aware its contents and legal effects,
and agree that no presumption as to the interpretation of this
Termination Agreement shall arise based upon the identity of the
drafter of this Termination Agreement or any of its provisions.
12. Any dispute between the Parties arising out of or in connection with
this Termination Agreement, which cannot be settled amicably, shall be
finally settled by the American Arbitration Association under its
Commercial Arbitration Rules. Any such arbitration shall take place in
New York, New York.
13. This Termination Agreement shall be governed and construed in
accordance with the laws of Delaware without reference to conflict of
law principles.
14. In any action to enforce this Termination Agreement the prevailing
party will be entitled to costs and attorney's fees.
15. In the event that any provision of this Termination Agreement is held
by a court of competent jurisdiction to be unenforceable, such
provision shall be limited or eliminated to the extent necessary so
that this Termination Agreement shall remain in full force and effect
and enforceable.
16. Any amendment or modification to this Termination Agreement may occur
only with the written consent of both of the parties.
17. This Termination Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, and all of which together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties have executed this Termination Agreement. All
signed copies of this Termination Agreement shall be deemed originals.
Mediacom LLC
By: _______________________________
Name: Xxxx X. Xxxxxxx
Title: Senior Vive President, Chief Financial Officer and Treasurer
Dated: ____________________________
SOFTNET SYSTEMS, INC.
By: _______________________________
Xxxxxx X. Xxxxxx
Senior Vice President
Dated: ____________________________
