SEVERANCE AGREEMENT
This Severance Agreement ("Agreement") made effective as of October 8,
1999, is by and between Osage Systems Group, Inc., a Delaware corporation
("Osage"), and Xxxxx X. Xxxxx, an individual resident of the State of Arizona
("Xxxxx").
WITNESSETH:
WHEREAS, Osage and Xxxxx are party to a certain employment agreement
effective as of December 22, 1997 (the "Employment Agreement"), as amended
effective as of June 12, 1998, pursuant to which Osage employed Xxxxx as its
President and Chief Operating Officer from December 22, 1997 to January 4, 1999,
and as President and Secretary from January 5, 1999 to the present;
WHEREAS, Xxxxx also holds positions as an officer and director of Osage's
subsidiaries;
WHEREAS, Osage and Xxxxx are party to a certain termination benefits
agreement dated as of August 3, 1998 (the "Termination Benefits Agreement"),
pursuant to which Xxxxx would be entitled to receive additional benefits if
Xxxxx'x employment with Osage was terminated under certain circumstances;
WHEREAS, Osage has granted Xxxxx options to purchase an aggregate 683,037
shares of Osage common stock (the "Options"), as set forth on Schedule A
attached hereto;
WHEREAS, Xxxxx is the record and beneficial owner of 639,000 shares of
Osage common stock (the "Shares");
WHEREAS, Osage and Xxxxx desire to terminate the employment relationship
between them on mutually acceptable terms;
WHEREAS, pursuant to the terms of a Securities Purchase Agreement dated as
of even date herewith by and among SPH Equities, Inc. or its designee(s) or
assignee(s) (the "Purchaser"), Xxxxx, Xxxx X. Xxxxxxxxxx and Xxxxxx X. Xxxxxxx,
P.C. as Escrow Agent (the "Securities Purchase Agreement"), Xxxxx has also
agreed that, in connection with the termination of his employment with Osage, he
shall sell all of the Shares to the Purchaser and surrender all of his Options
to Osage for cancellation; and
WHEREAS, the parties desire to settle fully all matters arising out of or
relating in any manner to the Employment Agreement, the Termination Benefits
Agreement and Xxxxx'x employment with and severance of employment from Osage;
NOW THEREFORE, in consideration of the promises and conditions set forth
herein, the sufficiency of which hereby is acknowledged, and intending to be
legally bound, Osage and Xxxxx agree as follows:
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1. Definitions. As used in this Agreement, the capitalized terms listed below
shall have the following meanings:
"Closing" means the closing under the Securities Purchase Agreement.
"Closing Date" means the date on which the Closing takes place.
"Company" shall include Osage and each of its subsidiaries, affiliates,
controlling corporations and divisions, and each of their respective
predecessors and successors.
"Personnel" shall include all of the respective past, present and future
directors, officers, employees, representatives, attorneys, and assigns of the
Company.
2. Resignation and Termination of Employment. Effective on the Closing Date:
x. Xxxxx shall resign from all of the positions of officer and director
that he holds with the Company, including but not limited to President and
Secretary of Osage and member of the Compensation Committee of Osage's Board of
Directors, and his employment with the Company shall terminate;
b. The Employment Agreement shall be null and void and of no further
effect;
c. The Termination Benefits Agreement shall be null and void and of no
further effect; and
d. Other than this Agreement and the Release entered into by and among,
inter alia, the Company and Xxxxx, any and all other agreements, arrangements or
understandings which Xxxxx has with the Company are terminated and shall be void
and of no further effect.
On or before the Closing Date, Xxxxx shall have vacated and removed all of
his personal items from his offices at the Company.
3. Severance. By virtue of the resignation and termination of employment
pursuant to the terms hereof and in consideration of the covenants and
agreements of the parties contained in this Agreement, Osage hereby agrees to
provide Xxxxx xxxxxxxxx benefits commencing on the Closing Date until December
22, 2000 in the form of salary continuation at $17,500.00 per month, less all
applicable income and other withholdings to the extent required under applicable
federal, state and local income and employment tax rules and regulations (the
"Severance Payment"). The Severance Payment is payable at intervals consistent
with Osage's current payroll practices. In the event of Xxxxx'x death prior to
December 22, 2000, Osage shall continue to be obligated to make the Severance
Payment to Xxxxx'x estate.
4. Reimbursement of Expenses and Repayment of Loan. In consideration of the
covenants and agreements of the parties contained in this Agreement, Osage
agrees to reimburse Xxxxx for all reasonable business expenses approved by Osage
and incurred by him in the promotion of Osage's business through the Closing
Date (the "Reimbursable Expenses"), but only to the extent
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such expenses are deductible to Osage pursuant to the Internal Revenue Code of
1986, as amended, provided that Xxxxx has submitted appropriate receipts
evidencing the expenses. In addition, upon verification thereof, Osage shall
repay Xxxxx the principal sum of $7,733.32, plus accrued but unpaid interest
thereon through the date hereof in the amount of $15.04 for a total of $7,748.36
(the "Loan Payable"), representing the balance of the promissory note from Osage
to Xxxxx in the original principal amount of $190,000. The sum of Reimbursable
Expenses and Loan Payable (collectively, the "Payables") shall be payable in
cash, certified check or wire transfer of immediately available funds as
follows:
a. On or before the ninety-first calendar day following the Closing Date
(the "First Payment Date"), Osage shall pay Xxxxx a sum equal to 25% of the
Payables; and
b. For every successive thirty day period following the First Payment Date,
Osage shall pay Xxxxx a sum equal to 25% of the remaining balance of the
Payables until the Payables are repaid in full.
c. The unpaid principal amount of the Payables due shall not accrue
interest following the date hereof. Notwithstanding the foregoing, in the event
that Osage fails to make the installment payments of the Payables on or before
the dates on which they are due pursuant to the terms of this Section 4, then
the portion of the Payables then due and payable shall accrue interest
thereafter at the rate of 15% per annum until paid in full.
5. Agreements of the Parties. In consideration of the mutual obligations and
covenants contained herein, the parties expressly agree as follows:
a. No Fringe Benefits. Effective as of Closing Date, except as specifically
provided herein, Xxxxx hereby forfeits all of his rights, interests and remedies
under the Employment Agreement, including, without limitation, any rights to
receive fringe benefits such as medical insurance benefits for himself or his
family members, life and disability insurance coverage, automobile allowances,
country club memberships and the right to participate in Osage's pension, stock
option, retirement, accident and life insurance, and other employee benefit
programs. Xxxxx'x COBRA benefits shall not be forfeited.
b. Surrender of Options. On the Closing Date, Xxxxx shall surrender and
forfeit all rights to purchase the Options and shall deliver to Osage for
cancellation all original option certificates representing the Options.
c. Resignation; Transitional Assistance. Xxxxx acknowledges that effective
on the Closing Date he resigns from Osage as President, Secretary and director
and all other positions as an officer or director that he holds with Osage's
subsidiaries. In order to facilitate the transition in the Company's management
following his resignation, Xxxxx agrees to provide assistance to the Company on
a temporary, limited basis as follows:
i. Commencing as of the Closing Date and for a period of thirty
calendar days thereafter, he will fully cooperate with the Company and its
Personnel on a full-time basis, if requested by Osage, to assist and advise on
all matters related to the business of the Company.
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In the event that Osage requests Xxxxx to travel outside the State of Arizona in
order to fulfill his obligations under this Section 5(c)(i), Osage shall bear
the cost of all reasonable travel, transportation, lodging and food expenses
incurred by Xxxxx during the course of fulfilling such obligations for which
Xxxxx submits appropriate receipts. Xxxxx shall not be required to travel
outside of the continental United States to fulfill his obligations under this
Section 5(c)(i), unless he otherwise consents to same.
ii. At the request of Osage, Xxxxx shall also provide up to five hours
per month of consulting services to the Company commencing at the expiration of
the thirty day period referenced in Section 5(c)(i) above and for a period of
six months thereafter for no remuneration. Xxxxx shall not be required to travel
outside of the State of Arizona to fulfill his obligations under this Section
5(c)(ii), unless he otherwise consents to same.
d. Termination of Guarantees. Osage shall use its best efforts to secure
the termination of any and all guarantees of Xxxxx of financial obligations of
the Company, as the same are listed on Schedule 5(d) attached hereto (the
"Guarantees"). If and to the extent that Osage is unable to secure the
termination of the Guarantees, Osage agrees to defend, indemnify and hold
harmless Xxxxx from and against his liability under the Guarantees.
e. Transfer of Life Insurance Policy. As soon as practicable after the
Closing Date, Osage shall transfer to Xxxxx the term life insurance policy it
maintained on the life of Xxxxx during the term of his Employment Agreement, and
Osage shall be terminated as a beneficiary under such policy. Upon the date that
Osage is terminated as a beneficiary under the policy, the premiums on such
insurance shall be the obligation of Xxxxx.
f. Directors and Officers Insurance. Osage agrees to extend coverage of
Xxxxx under all of its directors and officers errors and omissions insurance and
liability insurance policies in effect as of September 30, 1999 for a period of
up to one year after the Closing Date (the "Extended Insurance"), provided the
same can be obtained at reasonable, customary and standard rates. The insurance
premiums for the Extended Insurance shall be paid 50% by Osage, 25% by Xxxxx and
25% Xxxx X. Xxxxxxxxxx.
x. Xxxxx'x Personal Expenses. Xxxxx agrees to reimburse the Company for
personal expenses incurred by the Company on his or his family's behalf which do
not qualify as ordinary and necessary business expenses under IRS guidelines, if
any, as follows (collectively referred to as the "Personal Expenses"):
i. all such expenses incurred on or after the date hereof;
ii. all such expenses incurred prior to the date hereof which the
Company has not paid;
iii. those expenses incurred prior to the date hereof but after
December 31, 1998 which the Company has paid and which exceed Ten Thousand
Dollars ($10,000) in the aggregate; provided, however, that with respect to the
expenses described in this subsection (iii),
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Xxxxx shall be obligated to reimburse the Company only the amount by which the
expenses described in this subsection (iii) exceed Ten Thousand Dollars
($10,000).
Personal Expenses shall also include any payments made by the Company under
the Employment Agreement for fringe benefits, including without limitation, the
monthly Ancala country club membership dues, that cover periods following the
Closing Date. Xxxxx further agrees to refrain from charging any items of
Personal Expense to the account of the Company. Personal Expenses do not include
the annual Ancala country club membership fees paid by the Company for the
period January 1, 1998 through December 31, 1999. If, ten (10) business days
after Osage gives Xxxxx notice of any Personal Expenses due hereunder, such
Personal Expenses remain unreimbursed, Osage may offset against any payment due
Leadbeater hereunder (including, without limitation, the Severance Payment and
the Payables), any of the Personal Expenses for which it has not been
reimbursed. If the Company shall determine that certain expenses incurred and
paid for by the Company on behalf of Xxxxx or his family do not qualify as
ordinary and necessary business expenses under applicable IRS guidelines, such
determination shall not be cause for declaring a default under this Agreement
and the Company's sole remedy as a result of such determination shall be to
collect from Xxxxx the dollar amount for any such disqualified items that it is
entitled to under subsections (i), (ii) and (iii) above.
h. Return of Company Materials. Xxxxx shall deliver to Osage, on or before
the Closing, any and all files, memoranda, documents, records, employee files,
minutes of Board meetings, keys, credit cards, cellular phones, cars, items of
personal property, computer hardware, software or other apparatus, machinery or
equipment, or any other materials which belong to the Company, that are in
Xxxxx'x possession or control.
6. Releases.
a. Release by Xxxxx. Except for the Company's obligations set forth herein,
Xxxxx, on behalf of himself and his heirs and personal representatives, hereby
fully, irrevocably and unconditionally releases and discharges the Company from
any and all manner of claims, complaints, demands, causes of action,
obligations, liabilities, and expenses (including attorneys' fees and costs), of
every kind, known or unknown, either at law or in equity (collectively, the
"Claims"), including but not limited to those Claims arising from Xxxxx'x
employment with or severance of employment from the Company, including any claim
relating to the Employment Agreement or benefits due thereunder, the Termination
Benefits Agreement, or any claim arising under any federal, state or local
employment discrimination or fair employment practices law, such as the federal
Age Discrimination in Employment Act, as amended, the Civil Rights Act of 1991,
Title VII of the Civil Rights Act of 1964, as amended, the Americans With
Disabilities Act, the Employee Retirement Income Security Act of 1974, as
amended, any applicable state laws, regulations or ordinances governing
employment issues and any common law claims alleging intentional or negligent
infliction of emotional distress, and/or claims for attorneys' fees or claims
growing out of any legal restrictions on Osage's right to terminate its
employees. It is expressly agreed and understood that this release is a GENERAL
RELEASE.
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In addition, and not in limitation of the foregoing, Xxxxx hereby forever
releases and discharges the Company from any liability or obligation to
reinstate or reemploy him in any employment capacity.
Xxxxx acknowledges that his waiver and release of rights and claims as set
forth in this Agreement are in exchange for valuable consideration which he
would not otherwise be entitled to receive.
b. Release by the Company. Except for Xxxxx'x obligations set forth herein,
the Company hereby fully, irrevocably and unconditionally releases and
discharges Xxxxx, his heirs and personal representatives from any and all manner
of claims, complaints, demands, causes of action, obligations, liabilities, and
expenses (including attorneys' fees and costs), of every kind, known or unknown,
either at law or in equity (collectively, the "Claims"), including but not
limited to those Claims in connection with Xxxxx'x status as an employee,
shareholder, officer or director of the Company. It is expressly agreed and
understood that this release is a GENERAL RELEASE.
The Company acknowledges that its waiver and release of rights and claims
as set forth in this Agreement are in exchange for valuable consideration which
it would not otherwise be entitled to receive.
7. Covenants Not to Xxx.
a. Covenant of Xxxxx. Xxxxx represents and warrants that he has not filed,
nor has he assigned to any third person, any complaints, charges or claims for
relief against the Company with any local, state or federal court or
administrative agency. Xxxxx further agrees and covenants not to xxx or to
bring, or assign to any third person, any claims or charges against the Company
with respect to any matter arising before, on or after the date of this
Agreement or covered by the release set forth in Section 6(a), above, and not to
assert against the Company in any action, suit, litigation or proceeding any
matter arising before, on or after the date of this Agreement or covered by the
release set forth in Section 6(a) above.
b. Covenant of the Company. The Company represents and warrants that it has
not filed, nor has it assigned to any third person, any complaints, charges or
claims for relief against Xxxxx with any local, state or federal court or
administrative agency. The Company further agrees and covenants not to xxx or to
bring, or assign to any third person, any claims or charges against Xxxxx with
respect to any matter arising before, on or after the date of this Agreement or
covered by the release set forth in Section 6(b), above, and not to assert
against Xxxxx in any action, suit, litigation or proceeding any matter arising
before, on or after the date of this Agreement or covered by the release set
forth in Section 6(b) above.
8. Representations and Warranties of Xxxxx. In order to induce Osage to enter
into this Agreement, Xxxxx hereby represents and warrants to Osage as follows:
a. Shares and Options. Immediately prior to Closing, Xxxxx owned 639,000
Shares and Options to purchase an aggregate 683,057 shares of Osage common
stock. Xxxxx represents to
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Osage that none of the Shares or Options has been pledged, assigned, transferred
or otherwise disposed of as of the Closing Date. Other than as expressly set
forth in this Section 8(a), and except for 100 shares of Osage common stock
originally issued to Xxxxx and contained in a commemorative plaque, Xxxxx is not
a beneficial or record owner of any securities of the Company or any instruments
convertible into securities of the Company.
b. No Issuances of Securities. Since June 29, 1999, Osage has not issued or
incurred an obligation to issue shares of Osage Common Stock, options, warrants,
rights to subscribe to, calls or commitments of any character whatsoever
relating to, or securities, rights or obligations convertible into or
exchangeable for, or giving any person any right to subscribe for or acquire,
any shares of Common Stock, or contracts, commitments, understandings, or
arrangements by which Osage or any subsidiary is or may become bound to issue
additional shares of Common Stock or securities or rights convertible into or
exchangeable for Common Stock, except to:
x. Xxxxx (other than the Options being surrendered in accordance with
the terms of this Agreement), Xxxx X. Xxxxxxxxxx, Xxxx Xxxxxxx or Xxxx Xxxxx;
ii. the shares of Common Stock issued on August 11, 1999 to Xxxxxxx
Xxxxxxxxxxxx and Xxxxxx Xxxxxxx in connection with Osage's acquisition of the
assets of Leveraged Solutions, Inc.; or
iii. any other person other than in the ordinary course of business or
pursuant to employee stock option plans in effect as of June 9, 1999.
c. Guarantees. Other than the Guarantees listed on Schedule 5(d) hereof,
Xxxxx has not guaranteed any of the Company's obligations. The Company has not
guaranteed any of Xxxxx'x personal obligations.
d. Securities Filings. To the best of his knowledge and belief, all of
Osage's reports and registration statements filed with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, and the
Securities Exchange Act of 1934, as amended (in the aggregate, the "Securities
Filings"), were true and correct when made, and did not include any untrue
statements of material fact or omit to state any material facts required to be
stated therein or necessary to make statements therein not misleading, and
accurately set forth all material relevant information relative to contracts or
arrangements of the Company, in addition to any transactions or dealings between
Xxxxx and the Company or between the Company and any affiliates, customers,
suppliers or business associates of Xxxxx. Furthermore, Xxxxx has disclosed to
Osage all material relevant information concerning any transactions or dealings
between the Company, Xxxxx or any affiliates or business associates of Xxxxx.
e. Representations in the Securities Purchase Agreement. Each of the
representations and warranties made by Xxxxx in the Securities Purchase
Agreement is incorporated herein by reference.
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The foregoing representations and warranties shall be deemed to be in the
nature of an obligation of Xxxxx in so far as the falsehood of same shall be
deemed to be a breach by Xxxxx of his obligations hereunder.
9. Restrictive Covenants. In consideration of the Severance Payment, Xxxxx
hereby covenants and agrees as follows:
a. Confidential Information. Xxxxx acknowledges that: (a) during the course
of his employment with Osage he had access to and was entrusted in a fiduciary
capacity with confidential and proprietary information of the Company including,
but not limited to, trade secrets, know-how, inventions; financial matters;
business plans; pricing of products and services; names of suppliers, personnel,
customers and potential customers; bids; contracts; computer programs; special
hardware or software; service or product hardware or software programs, however
embodied; and information about or belonging to customers, potential customers,
suppliers or others; manuals; ideas; improvements; inventions or other
information or materials relating to the Company's affairs (collectively
referred to herein as the "Confidential Information"); (b) that the Confidential
Information is the property of the Company and constitutes a major asset of the
Company; (c) that the use, misappropriation or disclosure of the Confidential
Information would constitute a breach of trust and would cause irreparable
injury to the Company; and (d) that it is essential to the protection of the
Company's goodwill and to the maintenance of the Company's competitive position
that the Confidential Information be kept secret and that Xxxxx neither disclose
the Confidential Information to others nor use the Confidential Information to
his own advantage or to the advantage of others. Notwithstanding the above, the
term "Confidential Information" shall not be deemed to include information that
is otherwise generally publicly available (other than through disclosure by
Xxxxx) or information that Xxxxx is required to disclose by virtue of law or
court order.
b. Non-Disclosure and Return of Confidential Information. In recognition
and consideration of the compensation and fringe benefits Xxxxx received as an
employee of Osage and other good and valuable consideration, Xxxxx expressly
agrees that he shall not disclose, use or make available any Confidential
Information to any third party. Xxxxx shall return to the Company all
Confidential Information and other property of the Company on the date hereof.
c. Covenant Not To Compete. Xxxxx covenants and agrees that, for and in
consideration of the Severance Payment and the Restrictive Covenant Payment (as
such term is defined in Section 9(g) below) to be received hereunder, the
sufficiency of which is hereby acknowledged, during the ninety day period
following the Closing Date, Xxxxx shall not, within any state in which the
Company has a place of business, engage, directly or indirectly, whether as
principal or as agent, officer, director, employee, consultant, shareholder, or
otherwise, alone or in association with any other person, corporation or other
entity, in any "Competing Business". For the purposes of this Agreement, the
term "Competing Business" shall mean any person, corporation or other entity
that is engaged in a business that competes with, or is engaged in, one or more
of the same lines of business as the Company as of the date hereof.
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d. Non-Solicitation of Customers and Employees. In consideration of the
Severance Payment and the Restrictive Covenant Payment, Xxxxx agrees that,
commencing as of the Closing Date and ending on December 22, 2000, he shall not,
directly or indirectly:
i. solicit, service, trade with or sell to any customer with whom the
Company has transacted business within the past twelve (12) months
("Customers");
ii. request that any customer or supplier cancel, limit or postpone
their business with the Company; or
iii. hire, solicit for employment, influence or induce, or attempt to
hire, solicit, influence or induce, any employee of the Company or independent
contractor retained by the Company to leave the Company for any reason
whatsoever, to terminate his relationship with the Company, or assist or
participate in the hiring of any employee of the Company to work for another
entity.
e. Effect of Default. In the event that Osage has not made a payment of the
Severance Payment within five (5) business days after receiving notice from
Xxxxx of failure to make such payment when due under Section 3, then the
restrictive covenants set forth in Sections 9(c) and 9(d) above shall be void
and of no further effect.
f. Limitations on Restrictive Covenants. The restrictive covenants
contained in Sections 9(c) and 9(d) shall not apply with respect to the
following actions of Xxxxx or his affiliates:
i. offering a service or product to Customers that (A) is
substantially different from and does not compete with products or services
offered by the Company currently or within the past year and (B) does not serve
to replace or supplement a service or product or type of service or product
offered by the Company currently or within the past year; or
ii. soliciting, servicing, trading with or selling to any Customer
with whom the Company has transacted less than $5,000 of business within the
past twelve (12) months.
g. Restrictive Covenant Payment. In consideration of the restrictive
covenants of Xxxxx contained in Sections 9(c) and (d) above, Osage shall pay
Xxxxx the lump sum of $153,360 (the "Restrictive Covenant Payment"), which is
payable in full on the Closing Date in cash, certified check or wire transfer of
immediately available funds.
h. Non-Disparagement. The Company and Xxxxx agree not to engage in any
conduct or make or publish any negative, critical, disparaging, slanderous, or
libelous statement about the other or their respective business interests,
unless (and then only to the extent) required by law.
10. Injunctive Relief. Xxxxx acknowledges that any breach by him of Section 9 of
this Agreement would substantially and materially impair and irreparably harm
the Company's business and goodwill, that such impairment and harm would be
difficult to measure and, therefore, total compensation in solely monetary terms
would be inadequate. Xxxxx therefore agrees that in the event of any breach or
threatened breach by him of Section 9, the Company shall be entitled, in
addition to monetary damages or other remedies, to equitable relief, including
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injunctive relief, and payment by Xxxxx of all costs and expenses incurred by
the Company in enforcing said paragraph against Xxxxx, including attorneys' fees
incurred by the Company. Any action for damages, injunctive or other relief
arising out of or relating to any of the provisions of this Section 10 shall be
brought and prosecuted only in the courts of, or located in, the Phoenix,
Arizona, and the parties hereto consent to the jurisdiction and venue of said
courts.
11. Breach. The parties agree that in the event one party breaches any part or
parts of this Agreement, legal proceedings may be instituted against that party
for breach of contract or any other action in law or at equity. The
nonprevailing party in such legal proceedings shall reimburse the prevailing
party for the reasonable costs and expenses, including attorneys' fees,
incurred.
12. Non-Disclosure. (a) The nature and terms of this Agreement, all of the
discussions leading to this Agreement, or any subsidiary undertakings required
by this Agreement, shall not be disclosed by either of the parties hereto, or
their officers, agents, employees, attorneys, or any other representative,
without the prior written consent of Osage and Xxxxx, except when legally
required to do so. Xxxxx and Osage expressly covenant that the terms of this
Agreement are strictly confidential, and expressly agree not to discuss or
disclose any of the terms of this Agreement with or to any person, except when
legally required to do so.
13. Jurisdiction. Any action arising out of or relating to any of the provisions
of this Agreement may be brought and prosecuted only in the courts of, or
located in Phoenix, Arizona, and in the event of such election, the parties
hereto consent to the jurisdiction and venue of such courts. The Agreement shall
be construed according to its plain language and not strictly for or against any
party hereto.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to principles
of conflicts of laws.
15. Captions. Captions herein are inserted for convenience, do not constitute a
part of this Agreement, and shall not be admissible for the purpose of proving
the intent of the parties.
16. Counterparts; Facsimile Signatures. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument, and in pleading or
proving any provision of this Agreement it shall not be necessary to produce
more than one such counterpart. This Agreement may further be executed by
facsimile transmission, and the facsimile signatures may be deemed original
signatures for all purposes, including for purposes of the Best Evidence Rule
and all other rules or doctrines of similar effect.
17. Notice. All notices, requests, consents or other communications required or
permitted hereunder shall be in writing and shall be hand delivered, mailed
first class postage prepaid, registered or certified mail, or delivered via a
nationally recognized overnight courier to the following addresses:
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If to Xxxxx:
00000 X. Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000
with a copy to:
Xxxxxx X. Xxxxxxx, Esquire
0000 X. 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
If to Osage:
Xxxx Xxxxxx
Osage Systems Group, Inc.
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
with a copy to:
Xxxxxxx X. Xxxxx, Esquire
Xxxxxxxx Xxxxxxxxx Professional Corporation
Eleven Xxxx Xxxxxx, 00xx Xxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Unless specified otherwise, such notices and other communications shall for
all purposes of this Agreement be treated as being effective upon being
delivered personally or, if sent by mail, five days after the same has been
deposited in a regularly maintained receptacle for the deposit of United States
mail, addressed as set forth above, and postage prepaid, or if sent by
nationally recognized overnight courier, the next business day after the same
has been deposited with such courier.
18. Survival of Representations and Warranties. Representations and warranties
contained herein shall survive the execution and delivery of this Agreement.
19. Expenses. The parties hereto shall be responsible for their own expenses
incurred by them in connection with preparation and negotiation of this
Agreement, including the fees and expenses of their respective counsel and
accountants.
20. Entire Agreement. This Agreement, together with the Securities Purchase
Agreement and the "Release" identified in the Securities Purchase Agreement,
contains and constitutes the entire understanding and agreement between the
parties hereto respecting the subject matter hereof and supersedes and cancels
all previous negotiations, agreements, commitments, and writings in connection
herewith. Neither of the parties hereto has relied upon any representation made
by or
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on behalf of the other party and the same are not enforceable except to the
extent set forth in writing in this Agreement.
21. Acknowledgment of Certain Rights. Xxxxx and Osage affirm that the only
consideration for signing this Agreement are the terms stated herein, and that
no other promises or agreements of any kind have been made to or with either of
them by any person or entity whatsoever to cause them to sign this Agreement.
Xxxxx states and represents that he has been provided the opportunity for at
least 21 days to review and consider this Agreement, that he fully understands
the meaning and intent of this Agreement and that he has had an opportunity to
discuss and review the terms of this Agreement fully with his attorney. Xxxxx
further states and represents that he has carefully read this Agreement,
understands the contents hereof, freely and voluntarily assents to all the terms
and conditions hereof, and signs the same as his own free act. Finally, Xxxxx
understands and the parties agree that, for a period of seven days following the
execution of this Agreement, Xxxxx may revoke the Agreement, and the Agreement
shall not become effective until those seven days have passed.
IN WITNESS WHEREOF, all parties have set their hands and seals to this
Agreement as of the date written above.
/s/ Xxxxx X. Xxxxx
-------------------------
Xxxxx X. Xxxxx
Osage Systems Group, Inc.
By: /s/ Xxxx Xxxxxx
-------------------
Xxxx Xxxxxx, Interim Chief Executive Officer
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Schedule A
Options
--------------------------------------------------------------------------------
DATE OF
NUMBER GRANT EXPIRATION DATE EXERCISE PRICE OPTION #
--------------------------------------------------------------------------------
19,057 12-19-97 12-19-2000 3.00 1997-26
--------------------------------------------------------------------------------
664,000 6-11-98 12-19-2003 4.50 1998-4
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Schedule 5(d)
Guarantees
None
14
