EXHIBIT 10.28
SETTLEMENT AGREEMENTS WITH XXXXXX XXXXXX
AND XXXXX XXXXXX, DATED NOVEMBER 14, 1996.
SETTLEMENT AGREEMENT, MUTUAL RELEASE, ASSIGNMENT OF CLAIMS AND COVENANT NOT TO
XXX BY AND BETWEEN XXXXXX X. XXXXXX AND INCOMNET, INC.
This Settlement Agreement, Mutual Release, Assignment of Claims and
Covenant Not to Xxx ("Settlement Agreement") is made as of this 13th day of
November, 1996, by and between Xxxxxx X. Xxxxxx, a resident of Orange County,
California ("Xxxxxx"), and Incomnet, Inc., a California corporation
("Incomnet").
WHEREAS, Xxxxxx is currently employed as President and Chief Executive
Officer of National Telephone & Communications, Inc. ("NTC"), a wholly owned
subsidiary of Incomnet;
WHEREAS, Xxxxx Xxxxxx ("Xxxxxx") is currently employed as Executive
Vice President of NTC;
WHEREAS, Xxxxxx entered into certain loan agreements with NTC for the
principal amount of $547,240, plus interest, in accordance with the
authorization and direction of a unanimously approved resolution of NTC's Board
of Directors dated October 12, 1995 ("Xxxxxx Loan Agreements");
WHEREAS, Xxxxxx entered into certain loan agreements with NTC for the
principal amount of $465,000, plus interest, in accordance with the
authorization and
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xxxxxxxxx of a unanimously approved resolution of NTC's Board of Directors dated
October 12, 1995 ("Xxxxxx Loan Agreements");
WHEREAS, Xxxxxx and Xxxxxx obtained such loans for purposes related to
the exercise of certain options ("options") to purchase stock in Incomnet ("ICNT
stock");
WHEREAS, Xxxxxx and Xxxxxx entered into such loans and exercised such
options on margin, which, they allege, resulted in certain losses to Xxxxxx and
Xxxxxx because of activities of Xxx X. Xxxxxxxx ("Xxxxxxxx"), former President
and Chief Executive Officer of Incomnet;
WHEREAS, Xxxxxx has advised Incomnet that he has certain legal claims
against Incomnet, including (i) breach of Xxxxxx' employment contract and fraud
in the inducement, relating, in part, to the failure of Xxxxxxxx to provide
freely tradable stock pursuant to an agreement between Xxxxxx and Xxxxxxxx; (ii)
fraud in the inducement relating to Jacob's exercising the options and margining
the ICNT stock; and (iii) certain claims against Incomnet and its former
officers and directors and those acting in concert with such persons, related to
alleged violations of state and federal law, including those based upon
activities by Xxxxxxxx;
WHEREAS, Xxxxxx has advised Incomnet that he has certain legal claims
against Incomnet and its former officers and directors and those acting in
concert with
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such persons, related to alleged violations of state and federal law, including
those based upon certain activities by Xxxxxxxx; and
WHEREAS, Incomnet and Xxxxxx agree that it is in their best interest
to effect a settlement of any and all claims Xxxxxx and Xxxxxx may have against
Incomnet and any former officers or directors of Incomnet and others and to
resolve all outstanding claims and differences between them relating to any such
claims, including, but not limited to, alleged violations of state and federal
securities laws, upon the terms and in the manner hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises and agreements
hereinafter set forth, it is agreed that:
1. To compensate Xxxxxx for his losses caused by the activities of
Xxxxxxxx, Incomnet will assume any and all obligations owed by Xxxxxx pursuant
to the Xxxxxx Loan Agreements, including any and all obligations of Xxxxxx to
repay principal, interest or penalties with respect to such loans, and Incomnet
will take any and all necessary steps to have Xxxxxx released from any and all
obligations with respect to such loans effective the first day after the first
trade of NTC stock pursuant to the spin-off agreement between Incomnet and NTC
dated October 14, 1996. At such time, Incomnet shall execute a formal
assumption of this debt by executing the document attached hereto as Exhibit A
and NTC shall execute a formal release in the form
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attached hereto as Exhibit B. The Release executed by NTC and related matters
shall be approved by NTC's Board of Directors, in the form attached hereto as
Exhibit C.
2. To compensate Xxxxxx for his losses caused by the activities of
Xxxxxxxx, Incomnet will assume any and all obligations owed by Xxxxxx pursuant
to the Xxxxxx Loan Agreements, including any and all obligations of Xxxxxx to
repay principal, interest or penalties with respect to such loans, and Incomnet
will take any and all necessary steps to have Xxxxxx released from any and all
obligations with respect to such loans effective the first day after the first
trade of NTC stock pursuant to the spin-off agreement between Incomnet and NTC
dated October 14, 1996, if, and only if, Xxxxxx executes a release, covenant not
to xxx and assignment of claims in the form attached hereto as Exhibit D
("Xxxxxx Settlement") on or prior to January 2, 1998. At such time, Incomnet
shall execute a formal assumption of this debt by executing the document
attached hereto as Exhibit E and NTC shall execute a formal release by executing
the document attached hereto as Exhibit F. The release executed by NTC and
related matters shall be approved by NTC's Board of Directors, in the form
attached hereto as Exhibit G.
3. To compensate Xxxxxx for his losses caused by the activities of
Xxxxxxxx, Incomnet shall pay Xxxxxx a sum to be calculated by subtracting (a)
the aggregate outstanding amount of the principal and accrued interest of the
Xxxxxx and
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Xxxxxx Loan Agreements (presently estimated to be $1,012,240) actually assumed
by Incomnet pursuant to paragraphs 1 and 2 above from (b) $2,000,000 (Two
Million Dollars) on the earlier of (a) the day of the first public offering of
stock pursuant to Section II of the spin-off agreement between Incomnet and NTC
dated October 14, 1996, or (b) January 2, 1998, provided that on or before such
date Xxxxxx executes the Xxxxxx Settlement attached as Exhibit D. Such payment
shall be made by certified check or by electronic or wire transfer to a bank or
location to be designated by Xxxxxx. Incomnet's obligation to pay Xxxxxx the
aforesaid sum shall be fully collateralized with 200,000 shares of NTC stock.
Incomnet shall turn over to Xxxxxx or to a mutually acceptable third party the
NTC stock as collateral within fifteen (15) days after approval of this
Settlement Agreement by Incomnet's Board of Directors. Xxxxxx or such mutually
acceptable third party shall hold the NTC stock until the aforesaid payment to
Xxxxxx by Incomnet is made, at which time such stock shall be promptly returned
to Incomnet.
4. Upon satisfaction of the conditions stated in paragraphs 1 and 3
above, Xxxxxx agrees for himself, his successors, assigns, heirs, executors and
administrators, to assign to Incomnet any rights, benefits, demands, causes of
action or remedies Xxxxxx may have relating to any alleged violations of state
or federal securities or other laws, including, but not limited to, fraud in the
inducement with respect to Xxxxxx' exercise of warrants or options, or Xxxxxx'
employment agreement and the breach thereof, which may have been committed by
any current or former officer,
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director, shareholder, employee, attorney, accountant, agent, or independent
contractor of Incomnet, or any person or entity acting in concert with any such
person or entity, prior to the date of execution of this Settlement Agreement.
Xxxxxx further agrees to cooperate in the prosecution of any negotiation or
litigation relating to such assigned claims which may be pursued or filed by
Incomnet against any current or former officer, director, shareholder, employee,
attorney, accountant, agent, or independent contractor of Incomnet, or any
person or entity acting in concert with any such person or entity. The purpose
of this assignment is to preserve for Incomnet any and all claims otherwise
possessed by Xxxxxx and is not intended to limit any right of contribution which
Incomnet may have.
5. Upon satisfaction of the conditions stated in paragraphs 1 and 3,
Xxxxxx further covenants for himself, his successors, assigns, heirs, executors
and administrators, not to xxx Incomnet or Incomnet's current or former
officers, directors, shareholders, employees, attorneys, accountants, agents,
independent contractors, or subsidiaries, including any officers or directors
thereof, or any person or entity acting in concert with any such person or
entity, for any and all claims, demands, causes of action, controversies,
agreements, promises, damages, suits, liabilities, obligations, defenses or
remedies of any nature whatsoever relating to any alleged violations of state or
federal securities or other laws, including, but not limited to, fraud in the
inducement with respect to Xxxxxx' exercise of warrants or options, or Xxxxxx'
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employment agreement and the breach thereof, or any other matter with respect to
Incomnet, whether known or unknown, up to and including the date of execution of
this Settlement Agreement, provided however, that nothing contained herein shall
operate or be construed in any way to affect or diminish the obligations
incurred pursuant to the terms and conditions of this Settlement Agreement or
arising subsequent to the date of execution of this Settlement Agreement.
6. Upon satisfaction of the conditions stated in paragraphs 1 and 3,
Xxxxxx, for himself, his successors, assigns, heirs, executors and
administrators, hereby releases, acquits, disclaims and forever discharges any
and all claims, demands, causes of action, controversies, agreements, promises,
damages, suits, liabilities, obligations, defenses or remedies each or all of
them have or may have of any nature whatsoever, whether known or unknown, from
the beginning of time up to and including the date of execution of this
Settlement Agreement, against Incomnet, its current and former officers and
directors (with the specific exception of Xxxxxxxx), its attorneys, accountants,
shareholders and employees and each of its successors, representatives,
attorneys, subsidiaries and their current officers and directors and assigns,
provided, however, that nothing contained herein shall operate or be construed
in any way to affect or diminish the obligations incurred pursuant to the terms
and conditions of this Settlement Agreement or arising subsequent to the
effective date of execution of this Settlement Agreement. The foregoing release
of Incomnet is not intended to affect or
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impair the assignment by Xxxxxx of any and all claims assigned to Incomnet
pursuant to Paragraph 4, or to limit any right of contribution Incomnet may
have.
7. Effective upon the signing of this Settlement agreement, Incomnet and
its predecessors, successors and assigns hereby release, acquit, disclaim and
forever discharge any and all claims, demands, causes of action, controversies,
agreements, promises, damages, suits, liabilities, obligations, defenses or
remedies each or all of them have or may have of any nature whatsoever, whether
known or unknown, from the beginning of time up to and including the date of
execution of this Settlement Agreement, against Xxxxxx, and each of his
representatives, attorneys, and assigns, provided, however, that nothing
contained herein shall operate or be construed in any way to affect or diminish
the obligations incurred pursuant to the terms and conditions of this Settlement
Agreement or arising subsequent to the date of execution of this Settlement
Agreement.
8. Effective upon the execution by Xxxxxx of the Release, covenant not to
xxx and assignment of claims in the form attached hereto as Exhibit D and
delivery of such executed document to Incomnet, Incomnet and its predecessors,
successors and assigns hereby release, acquit, disclaim and forever discharge
any and all claims, demands, causes of action, controversies, agreements,
promises, damages, suits, liabilities, obligations, defenses or remedies each or
all of them have or may have of any
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nature whatsoever, whether known or unknown, from the beginning of time up to
and including the date of execution of this Settlement Agreement, against
Xxxxxx, and each of his representatives, attorneys, and assigns, provided,
however, that nothing contained herein shall operate or be construed in any way
to affect or diminish the obligations incurred pursuant to the terms and
conditions of this Settlement Agreement or arising subsequent to the effective
date of execution of this Settlement Agreement.
9. Each signatory to this Settlement Agreement warrants and represents
that he is authorized to sign on behalf of and to bind the party on whose behalf
he signed. Upon the execution of this Settlement Agreement by Incomnet, the
same will be submitted for approval by Incomnet's Board of Directors, in the
form attached hereto as Exhibit H, within seven (7) days after such execution by
Incomnet. If such Board approval has not been obtained within such seven (7)
day period, this Settlement Agreement may, at the option of either Xxxxxx or
Incomnet, be terminated.
10. Subject to and consistent with the intent and the provisions of this
Settlement Agreement, the parties hereto agree to execute such documents and
take such actions as may be necessary to carry out the intent and provisions of
the Settlement Agreement.
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11. This Settlement Agreement may be executed by the parties listed below
in multiple original counterparts, each of which shall be deemed an original,
but all of which together shall constitute a single agreement.
12. This Settlement Agreement and the Exhibits attached hereto shall
constitute the entire agreement between the parties hereto, shall be binding
upon the predecessors, successors or assigns of each, and shall not be modified
except upon written agreement of the parties.
13. This Settlement Agreement is a product of informed negotiations and
involves compromises of the parties' previously stated and disputed legal
positions. It shall not be construed as an admission of liability by any party
to this Settlement Agreement.
14. The terms of this Settlement Agreement shall be and shall remain
confidential between the parties hereto and shall not be disclosed to any person
or entity, other than (i) the officers, directors, accountants, auditors,
insurers, or reinsurers, of a party; (ii) in filings with governmental agencies
as may be necessary to fulfill specific and necessary filing obligations; (iii)
by order of a court of competent jurisdiction; (iv) by any party to its legal
counsel; (v) by any party in an action to enforce the terms of this Settlement
Agreement (in which event the party seeking enforcement shall have such action
filed and proceed under seal unless and until otherwise ordered
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by the relevant court); and/or (vi) by written consent of the other party
hereto. The parties agree to notify each other promptly in the event any of
them receives any request, discovery request, subpoena or court order calling or
potentially calling for production or disclosure of this Settlement Agreement,
and to use their best efforts to obtain a protective order preventing the
disclosure of same. The parties further agree to notify each other promptly in
the event any of them determines it may be necessary to disclose this Settlement
Agreement to any government agency.
15. Any party which obtains judicial relief as the result of a material
breach of the terms and conditions of this Settlement Agreement by the other
party to this Settlement Agreement shall be entitled to recover its reasonable
attorneys' fees and costs in such proceeding from the breaching party.
16. Any notice required to be submitted pursuant to this Settlement
Agreement shall be provided to Xxxxxx Xxxxxxx, President and Chief Executive
Officer of
Incomnet Inc. (or his successor) on behalf of Incomnet and to Xxxxxx X. Xxxxxx,
personally, at the corporate offices of NTC or any other address which he
designates.
17. This Settlement Agreement shall be interpreted in accordance with and
governed by the laws of the State of California.
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18. It is expressly understood and agreed that each party expressly and
voluntarily waives and relinquishes all rights and benefits under Section 1542
of the California Civil Code as well as all of the provisions of all comparable
similar statutes of any State of the United States and/or principles of common
law, if in any way applicable to this Settlement Agreement. The parties
acknowledge that this waiver and relinquishment is an essential and material
term of this Settlement Agreement without which the consideration described
herein would not have been given and delivered and without which the parties
subject hereto would not have executed and delivered this Settlement Agreement.
Section 1542 of the California Civil Code provides as follows:
"GENERAL RELEASE - CLAIMS EXTINGUISHED:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH A 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."
A. The parties acknowledge that the effect and import of this Settlement
Agreement and of the waivers contained in Paragraphs 6-8 above and this
Paragraph have been explained to them by their own legal counsel, or that they
have had the opportunity but have chosen not to retain legal counsel,
particularly in regard to the above releases. With this knowledge and
understanding, the parties each elect to, and do, waive the provisions of
Section 1542 of the California Civil Code and of any similar case or statutory
law of other states that may be applicable, and relinquish any rights
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which they may otherwise have thereunder, to the fullest extent permitted by
law, with regard to the above releases, and agree that the above releases shall
remain in full force and effect notwithstanding any discovery or existence of
any additional or different facts.
B. The parties acknowledge that should their representatives hereafter
discover facts different from, or in addition to, those their representatives
now know or believe to be true, including without limitation, facts concerning
the matters covered in the recitals above, said parties agree that this
Settlement Agreement shall be in, and remain in, full force and effect in all
respects, notwithstanding (a) any discovery by them or their representative of
such different or additional facts; or (b) the present knowledge, if any, of the
parties, or any other person; or (c) whether full disclosure has been made by
the parties, or any other person, of all facts presently known to such person.
It is the intention of the parties to hereby fully, finally and forever settle
and release as against each other all claims referred to in Paragraphs 6-8 above
("Released Claims") and any and all items relative to the Released Claims that
now exist, or heretofore have existed between them as set forth herein. In
furtherance of such intention, this Settlement Agreement shall be and remain in
effect as a full and complete release of all matters covered hereby,
notwithstanding the discovery by any of the parties, or their representatives,
of the existence of any additional or different claims or the facts relative
thereto.
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C. Each of the parties represents and warrants that he or she has had
this Settlement Agreement reviewed by legal counsel or other advisors of his or
her own choosing and has received independent legal advice from legal counsel
and other advisers with respect to the advisability of making this settlement
and with respect to the execution of this Settlement Agreement, or has had the
opportunity to do so and has freely and voluntarily determined not to do so, and
that he or she is executing this Settlement Agreement freely and willingly
following such consultation.
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Dated: November , 1996 Dated: November 13, 1996
------
Incomnet: Xxxxxx:
Incomnet, Inc. Xxxxxx X. Xxxxxx, personally
By: By:
------------------------------ ------------------------------
Xxxxxx Xxxxxxx, President and Xxxxxx X. Xxxxxx
Chief Executive Officer
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EXHIBIT A
INCOMNET ASSUMPTION OF DEBT OF XXXXXX
This Assumption of Debt Agreement ("Agreement") is made as of this
______ day of ________________________________________ by Incomnet, Inc., a
California corporation ("Incomnet"), pursuant to a Settlement Agreement, Mutual
Release, Assignment of Claims and Covenant Not to Xxx executed by and between
Xxxxxx X. Xxxxxx, a resident of Orange County, California ("Xxxxxx"), and
Incomnet dated November 13, 1996 ("Settlement Agreement").
WHEREAS, Xxxxxx entered into certain loan agreements with National
Telephone & Communications, Inc. ("NTC") for the principal amount of $547,240,
plus interest, in accordance with the authorization and direction of a
unanimously approved resolution of NTC's Board of Directors dated October 12,
1995 ("Xxxxxx Loan Agreements"); and
WHEREAS, Incomnet has agreed to assume any and all obligations of
Xxxxxx pursuant to the Xxxxxx Loan Agreements and the Settlement Agreement.
NOW, THEREFORE, in accordance with the Settlement Agreement:
1. Incomnet hereby assumes all obligations owed by Xxxxxx pursuant
to the Xxxxxx Loan Agreements, including any and all obligations of Xxxxxx to
repay principal, interest or penalties with respect to such loans.
2. Incomnet will take any and all necessary steps to have NTC
release Xxxxxx from any and all obligations with respect to the Xxxxxx Loan
Agreements.
Dated:
---------------------------
Incomnet, Inc.
By:
------------------------------
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Xxxxxx Xxxxxxx, President and
Chief Executive Officer
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EXHIBIT B
RELEASE OF XXXXXX X. XXXXXX
BY NATIONAL TELEPHONE & COMMUNICATIONS, INC.
This Release is executed on ________________________, by National
Telephone and Communications, Inc. ("NTC"), a Nevada Corporation, in favor of
Xxxxxx X. Xxxxxx, a resident of Orange County, California ("Xxxxxx").
WHEREAS, Xxxxxx X. Xxxxxx is currently employed by NTC as President
and Chief Executive Officer of NTC, a wholly owned subsidiary of Incomnet, Inc.
("Incomnet");
WHEREAS, Xxxxxx entered into certain loan agreements with NTC for the
principal amount of $547,240, plus interest, in accordance with the
authorization and direction of a unanimously approved resolution of NTC's Board
of Directors dated October 12, 1995 ("Xxxxxx Loan Agreements"); and
WHEREAS, Incomnet has assumed all obligations owed by Xxxxxx pursuant
to the Xxxxxx Loan Agreements pursuant to a Settlement Agreement, Mutual
Release, Assignment of Claims and Covenant Not to Xxx executed by and between
Xxxxxx and Incomnet dated November 13, 1996 ("Settlement Agreement").
NOW, THEREFORE, in consideration of the assumption by Incomnet of all
obligations owed by Xxxxxx pursuant to the Xxxxxx Loan Agreements:
1. NTC, for itself, its predecessors, successors and assigns, hereby
releases, acquits, disclaims and forever discharges Xxxxxx from any and all
debts, liabilities, obligations, promises, covenants, contracts, endorsements,
bonds, controversies, actions, causes of action, judgments, damages, expenses,
claims and demands whatsoever, in law or in equity, which NTC now has against
Xxxxxx, or hereafter can, shall or may have, for, or by reason of or related to,
the Xxxxxx Loan Agreements (the "Release").
2. It is expressly understood and agreed that NTC expressly and
voluntarily waives and relinquishes all rights and benefits under Section 1542
of the California Civil Code as well as all of the provisions of all comparable
similar statutes of any State of the United States and/or principles of common
law, if in any way applicable to this Release. The parties acknowledge that
this waiver and relinquishment is an essential and material term of this Release
without which the
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consideration described herein would not have been given and delivered and
without which NTC would not have executed and delivered this Release. Section
1542 of the California Civil Code provides as follows:
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"GENERAL RELEASE - CLAIMS EXTINGUISHED:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH A 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."
A. NTC acknowledges that the effect and import of this Release and
of the waivers contained in Paragraph 1 above and this Paragraph have been
explained to it by its own legal counsel, or that it has had the opportunity but
has chosen not to retain legal counsel, particularly in regard to the above
releases. With this knowledge and understanding, NTC elects to, and does, waive
the provisions of Section 1542 of the California Civil Code and of any similar
case or statutory law of other states that may be applicable, and relinquishes
any rights which it may otherwise have thereunder, to the fullest extent
permitted by law, with regard to the above releases, and agrees that the above
releases shall remain in full force and effect notwithstanding any discovery or
existence of any additional or different facts.
B. NTC acknowledges that should its representatives hereafter
discover facts different from, or in addition to, those its representatives now
know or believe to be true, including without limitation, facts concerning the
matters covered in the recitals above, NTC agrees that this Release shall be in,
and remain in, full force and effect in all respects, notwithstanding (a) any
discovery by it or its representative of such different or additional facts; or
(b) the present knowledge, if any, of the parties, or any other person; or (c)
whether full disclosure has been made by the parties, or any other person, of
all facts presently known to such person. It is the intention of NTC to hereby
fully, finally and forever settle and release as against Xxxxxx all claims
referred to in the Release ("Released Claims") and any and all items relative to
the Released Claims that now exist, or heretofore have existed between Xxxxxx
and NTC as set forth herein. In furtherance of such intention, this Release
shall be and remain in effect as a full and complete release of all matters
covered hereby, notwithstanding the discovery by NTC, or its representatives, of
the existence of any additional or different claims or the facts relative
thereto.
C. NTC represents and warrants that it has had this Release reviewed
by legal counsel or other advisors of its own choosing and has received
independent legal advice from legal counsel and other advisers with respect to
the advisability of the execution of this Release, or has had the opportunity to
do so and has freely and voluntarily
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determined not to do so, and that it is executing this Release freely and
willingly following such consultation.
Dated:
------------------------------
National Telephone & Communications, Inc.
By:
------------------------------
Xxxxxx X. Xxxxxx, President and Chief Executive Officer
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EXHIBIT C
UNANIMOUS WRITTEN CONSENT OF
THE BOARD OF DIRECTORS OF
NATIONAL TELEPHONE & COMMUNICATIONS, INC.
The undersigned, being all of the directors of National Telephone &
Communications, Inc., a Nevada Corporation ("Company"), hereby adopt the
following resolutions by unanimous written consent in lieu of a meeting pursuant
to their authority to do so in the Bylaws of the Company and the laws of the
State of Nevada.
RESOLVED, that the release of Xxxxxx X. Xxxxxx by the Company dated ___________
and the Assumption of Debt executed by Incomnet (the "Agreements"), copies of
which are attached to this Unanimous Written Consent of the Board of Directors
as Exhibits 1 and 2, respectively, are hereby authorized, ratified, adopted and
approved. The execution of the Release by Xxxxxx X. Xxxxxx, as the President
and Chief Executive Officer of the Company on behalf of the Company is hereby
ratified and approved.
RESOLVED, that the Company hereby releases Incomnet, in the form attached as
Exhibit 3, from its obligation to pay to the Company the Xxxxxx' debt
obligations assumed by Incomnet, provided that in the opinion of NTC's
independent accounting firm such release and the failure of Incomnet to pay such
debt obligations to NTC shall not require NTC to record or reflect the Xxxxxx
debt obligations assumed by Incomnet as a charge to NTC's earnings.
RESOLVED, that the officers and directors of the Company be, and they hereby
are, authorized, empowered and directed to do and perform all such acts and
things and to sign all such documents, certificates, directions, instruments and
statements, whether under the corporate seal of the Company or otherwise, and to
take all such other steps as such officer, officers, director or directors shall
determine to be necessary and advisable to effectuate the matters set forth in
the foregoing resolution, any such determination to be conclusively evidenced by
the taking or causing to be taken of such action or the execution and delivery
of any such document, certificate, direction, instrument or statement by any
such officer, officers, director or directors.
IN WITNESS WHEREOF, this Unanimous Written Consent of the Board of Directors of
the Company has been executed on and is effective as of ______________________.
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------------------------------ ------------------------------
Xxxxxx X. Xxxxxx Xxxxx Xxxxxx, Director
Director
------------------------------
Xxxxxx Xxxxxxx, Director
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EXHIBIT D
RELEASE, COVENANT NOT TO XXX AND ASSIGNMENT OF CLAIMS
1. Upon satisfaction of the conditions stated in paragraphs 2 and 3
of the Settlement Agreement, Mutual Release, Assignment of Claims and Covenant
Not To Xxx executed by and between Xxxxxx X. Xxxxxx and Incomnet dated November
13, 1996 ("Settlement Agreement"), I, Xxxxx Xxxxxx, agree for myself, my
successors, assigns, heirs, executors and administrators, to assign to Incomnet,
Inc. ("Incomnet") any rights, benefits, demands, causes of action or remedies I
may have relating to any alleged violations of state or federal securities or
other laws which may have been committed by any current or former officer,
director, shareholder, employee, attorney, accountant, agent, or independent
contractor of Incomnet and its subsidiaries, or any person or entity acting in
concert with any such person or entity, prior to the date of execution of the
Settlement Agreement. I further agree to cooperate in the prosecution of any
negotiation or litigation relating to such assigned claims which may be pursued
or filed by Incomnet against any current or former officer, director,
shareholder, employee, attorney, accountant, agent, or independent contractor of
Incomnet, or any person or entity acting in concert with any such person or
entity and any other claims which I may have against Incomnet or any current or
former officer, director, shareholder, employee, attorney, accountant, agent or
independent contractor of Incomnet. The purpose of this assignment is to
preserve for Incomnet any and all claims otherwise possessed by me and is not
intended to limit any right of contribution which Incomnet may have.
2. Upon satisfaction of the conditions expressly assumed by Incomnet
in the Settlement Agreement, I further covenant for myself, my successors,
assigns, heirs, executors and administrators, not to xxx Incomnet's current or
former officers, directors, shareholders, employees, attorneys, accountants,
agents, independent contractors, or subsidiaries, including any officers or
directors thereof, or any person or entity acting in concert with any such
person or entity, for any and all claims, demands, causes of action,
controversies, agreements, promises, damages, suits, liabilities, obligations,
defenses or remedies of any nature whatsoever relating to any alleged violations
of state or federal securities or other laws, or any other matter with respect
to Incomnet, whether known or unknown, up to and including the date of execution
of the Settlement Agreement, provided however, that nothing contained herein
shall operate or be construed in any way to affect or diminish the obligations
incurred pursuant to the terms and conditions of the Settlement Agreement or
arising subsequent to the date of execution of the Settlement Agreement.
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3. Upon satisfaction of the conditions stated in paragraphs 2 and 3
of the Settlement Agreement, I, for myself, my successors, assigns, heirs,
executors and administrators, hereby release, acquit, disclaim and forever
discharge any and all claims, demands, causes of action, controversies,
agreements, promises, damages, suits, liabilities, obligations, defenses or
remedies each or all of them have or may have of any nature whatsoever, whether
known or unknown, from the beginning of time up to and including the date of
execution of the Settlement Agreement, against Incomnet, its current and former
officers and directors (with the specific exception of Xxxxxxxx), its attorneys,
accountants, shareholders and employees and each of its successors,
representatives, attorneys, subsidiaries and their current officers and
directors , and assigns, provided, however, that nothing contained herein shall
operate or be construed in any way to affect or diminish the obligations
incurred pursuant to the terms and conditions of the Settlement Agreement or
arising subsequent to the effective date of execution of the Settlement
Agreement. The foregoing release of Incomnet is not intended to affect or
impair my assignment of any and all claims to Incomnet pursuant to Paragraph 1
or to limit any right of contribution Incomnet may have.
4. It is expressly understood and agreed that each party (Xxxxxx and
Incomnet) expressly and voluntarily waives and relinquishes all rights and
benefits under Section 1542 of the California Civil Code as well as all of the
provisions of all comparable similar statutes of any State of the United States
and/or principles of common law, if in any way applicable to this Agreement.
The parties acknowledge that this waiver and relinquishment is an essential and
material term of this Agreement without which the consideration described herein
would not have been given and delivered and without which the parties subject
hereto would not have executed and delivered this Agreement. Section 1542 of
the California Civil Code provides as follows:
"GENERAL RELEASE - CLAIMS EXTINGUISHED:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH A 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."
A. The parties acknowledge that the effect and import of this
Agreement and of the waivers contained in Paragraph 3 above, and Paragraph 8 of
the Settlement Agreement and this Paragraph have been explained to them by their
own legal counsel, or that they have had the opportunity but have chosen not to
retain legal
25
counsel, particularly in regard to the above releases. With this knowledge and
understanding, the parties each elect to, and do, waive the provisions of
Section 1542 of the California Civil Code and of any similar case or statutory
law of other states that may be applicable, and relinquish any rights which they
may otherwise have thereunder, to the fullest extent permitted by law, with
regard to the above releases, and agree that the above releases shall remain in
full force and effect notwithstanding any discovery or existence of any
additional or different facts.
B. The parties acknowledge that should their representatives
hereafter discover facts different from, or in addition to, those their
representatives now know or believe to be true, including without limitation,
facts concerning the matters covered in the recitals above, said parties agree
that this Agreement shall be in, and remain in, full force and effect in all
respects, notwithstanding (a) any discovery by them or their representative of
such different or additional facts; or (b) the present knowledge, if any, of the
parties, or any other person; or (c) whether full disclosure has been made by
the parties, or any other person, of all facts presently known to such person.
It is the intention of the parties to hereby fully, finally and forever settle
and release as against each other all claims referred to in Paragraph 3 above
and Paragraph 8 of the Settlement Agreement ("Released Claims") and any and all
items relative to the Released Claims that now exist, or heretofore have existed
between them as set forth herein. In furtherance of such intention, this
Agreement shall be and remain in effect as a full and complete release of all
matters covered hereby, notwithstanding the discovery by any of the parties, or
their representatives, of the existence of any additional or different claims or
the facts relative thereto.
C. Each of the parties represents and warrants that he or she has
had this Agreement reviewed by legal counsel or other advisors of his or her own
choosing and has received independent legal advice from legal counsel and other
advisers with respect to the advisability of making this settlement and with
respect to the execution of this Agreement, or has had the opportunity to do so
and has freely and voluntarily determined not to do so, and that he or she is
executing this Agreement freely and willingly following such consultation.
Dated: By:
------------------------------ ------------------------------
Xxxxx Xxxxxx
Dated: Incomnet, Inc.
------------------------------
26
By:
------------------------------
Xxxxxx Xxxxxxx, President and Chief Executive Officer
27
EXHIBIT E
INCOMNET ASSUMPTION OF DEBT OF XXXXXX
This Assumption of Debt Agreement ("Agreement") is made as of this __
day of __________________________ by Incomnet, Inc., a California corporation
("Incomnet"), pursuant to a Settlement Agreement, Mutual Release, Assignment of
Claims and Covenant Not to Xxx executed by and between Xxxxxx X. Xxxxxx, a
resident of Orange County, California, and Incomnet dated November 13, 1996
("Settlement Agreement").
WHEREAS, Xxxxx Xxxxxx ("Xxxxxx") entered into certain loan agreements
with National Telephone & Communications, Inc. ("NTC") for the principal amount
of $465,000, plus interest, in accordance with the authorization and direction
of a unanimously approved resolution of NTC's Board of Directors dated October
12, 1995 ("Xxxxxx Loan Agreements");
WHEREAS, Incomnet has agreed to assume any and all obligations of
Xxxxxx pursuant to the Xxxxxx Loan Agreements and the Settlement Agreement,
provided that Xxxxxx executes a Release, Covenant Not To Xxx And Assignment of
Claims ("Agreement") with Incomnet; and
WHEREAS, Xxxxxx executed the Agreement with Incomnet on -
______________.
NOW, THEREFORE, in accordance with the Settlement Agreement and the
Agreement:
1. Incomnet hereby assumes all obligations owed by Xxxxxx pursuant
to the Xxxxxx Loan Agreements, including any and all obligations of Xxxxxx to
repay principal, interest or penalties with respect to such loans.
2. Incomnet will take any and all necessary steps to have NTC
release Xxxxxx from any and all obligations with respect to the Xxxxxx Loan
Agreements.
Dated:
------------------------------
Incomnet, Inc.
28
By:
------------------------------
Xxxxxx Xxxxxxx, President and
Chief Executive Officer
29
EXHIBIT F
RELEASE OF XXXXX XXXXXX
BY NATIONAL TELEPHONE & COMMUNICATIONS, INC.
This Release is executed on ____________________________, by National
Telephone and Communications, Inc. ("NTC"), a Nevada Corporation, in favor of
Xxxxx Xxxxxx ("Xxxxxx"), a resident of Orange County, California.
WHEREAS, Xxxxxx is currently employed by NTC as Executive Vice
President of NTC, a wholly owned subsidiary of Incomnet, Inc. ("Incomnet");
WHEREAS, Xxxxxx entered into certain loan agreements with NTC for the
principal amount of $465,000, plus interest, in accordance with the
authorization and direction of a unanimously approved resolution of NTC's Board
of Directors dated October 12, 1995 ("Xxxxxx Loan Agreements"); and
WHEREAS, Incomnet has assumed all obligations owed by Xxxxxx pursuant
to the Xxxxxx Loan Agreements pursuant to a Settlement Agreement, Mutual
Release, Assignment of Claims and Covenant Not to Xxx executed by and between
Xxxxxx and Incomnet dated November 13, 1996 ("Settlement Agreement").
NOW, THEREFORE, in consideration of the assumption by Incomnet of all
obligations owed by Xxxxxx pursuant to the Xxxxxx Loan Agreements:
1. NTC, for itself, its predecessors, successors and assigns, hereby
releases, acquits, disclaims and forever discharges Xxxxxx from any and all
debts, liabilities, obligations, promises, covenants, contracts, endorsements,
bonds, controversies, actions, causes of action, judgments, damages, expenses,
claims and demands whatsoever, in law or in equity, which NTC now has against
Xxxxxx, or hereafter can, shall or may have, for, or by reason of or related to,
the Xxxxxx Loan Agreements (the "Release").
2. It is expressly understood and agreed that NTC expressly and
voluntarily waives and relinquishes all rights and benefits under Section 1542
of the California Civil Code as well as all of the provisions of all comparable
similar statutes of any State of the United States and/or principles of common
law, if in any way applicable to this Release. The parties acknowledge that
this waiver and relinquishment is an essential and material term of this Release
without which the consideration described herein would not have been given and
delivered and without
30
which NTC would not have executed and delivered this Release. Section 1542 of
the California Civil Code provides as follows:
31
"GENERAL RELEASE - CLAIMS EXTINGUISHED:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH A 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."
A. NTC acknowledges that the effect and import of this Release
and of the waivers contained in Paragraph 1 above and this Paragraph have been
explained to it by its own legal counsel, or that it has had the opportunity but
has chosen not to retain legal counsel, particularly in regard to the above
releases. With this knowledge and understanding, NTC elects to, and does, waive
the provisions of Section 1542 of the California Civil Code and of any similar
case or statutory law of other states that may be applicable, and relinquishes
any rights which it may otherwise have thereunder, to the fullest extent
permitted by law, with regard to the above releases, and agrees that the above
releases shall remain in full force and effect notwithstanding any discovery or
existence of any additional or different facts.
B. NTC acknowledges that should its representatives hereafter
discover facts different from, or in addition to, those its representatives now
know or believe to be true, including without limitation, facts concerning the
matters covered in the recitals above, NTC agrees that this Release shall be in,
and remain in, full force and effect in all respects, notwithstanding (a) any
discovery by it or its representative of such different or additional facts; or
(b) the present knowledge, if any, of the parties, or any other person; or (c)
whether full disclosure has been made by the parties, or any other person, of
all facts presently known to such person. It is the intention of NTC to hereby
fully, finally and forever settle and release as against Xxxxxx all claims
referred to in the Release ("Released Claims") and any and all items relative to
the Released Claims that now exist, or heretofore have existed between Xxxxxx
and NTC as set forth herein. In furtherance of such intention, this Release
shall be and remain in effect as a full and complete release of all matters
covered hereby, notwithstanding the discovery by NTC, or its representatives, of
the existence of any additional or different claims or the facts relative
thereto.
C. NTC represents and warrants that it has had this Release reviewed
by legal counsel or other advisors of its own choosing and has received
independent legal advice from legal counsel and other advisers with respect to
the advisability of the execution of this Release, or has had the opportunity to
do so and has freely and voluntarily
32
determined not to do so, and that it is executing this Release freely and
willingly following such consultation.
Dated:
------------------------------
National Telephone & Communications, Inc.
By:
------------------------------
Xxxxxx X. Xxxxxx, President and Chief Executive Officer
33
EXHIBIT G
UNANIMOUS WRITTEN CONSENT OF
THE BOARD OF DIRECTORS OF
NATIONAL TELEPHONE & COMMUNICATIONS, INC.
The undersigned, being all of the directors of National Telephone &
Communications, Inc., a Nevada Corporation ("Company"), hereby adopt the
following resolutions by unanimous written consent in lieu of a meeting pursuant
to their authority to do so in the Bylaws of the Company and the laws of the
State of Nevada.
RESOLVED, that the Release of Xxxxx Xxxxxx by the Company dated ______________
and the Assumption of Debt executed by Incomnet (the "Agreements"), copies of
which are attached to this Unanimous Written Consent of the Board of Directors
as Exhibits 1 and 2, respectively, are hereby authorized, ratified, adopted and
approved. The execution of the Release by Xxxxxx X. Xxxxxx, as the President
and Chief Executive Officer of the Company on behalf of the Company is hereby
ratified and approved.
RESOLVED, that the Company hereby releases Incomnet, in the form attached as
Exhibit 3, from its obligation to pay to the Company the Xxxxxx debt obligations
assumed by Incomnet, provided that in the opinion of NTC's independent
accounting firm such release and the failure of Incomnet to pay such debt
obligations to NTC shall not require NTC to record or reflect the Xxxxxx debt
obligations assumed by Incomnet as a charge to NTC's earnings.
RESOLVED, that the officers and directors of the Company be, and they hereby
are, authorized, empowered and directed to do and perform all such acts and
things and to sign all such documents, certificates, directions, instruments and
statements, whether under the corporate seal of the Company or otherwise, and to
take all such other steps as such officer, officers, director or directors shall
determine to be necessary and advisable to effectuate the matters set forth in
the foregoing resolution, any such determination to be conclusively evidenced by
the taking or causing to be taken of such action or the execution and delivery
of any such document, certificate, direction, instrument or statement by any
such officer, officers, director or directors.
IN WITNESS WHEREOF, this Unanimous Written Consent of the Board of Directors of
the Company has been executed on and is effective as of ______________________.
34
------------------------------ ------------------------------
Xxxxxx X. Xxxxxx Xxxxx Xxxxxx, Director
Director
------------------------------
Xxxxxx Xxxxxxx, Director
EXHIBIT H
UNANIMOUS WRITTEN CONSENT OF
THE BOARD OF DIRECTORS OF
INCOMNET, INC.
The undersigned, being all of the directors of Incomnet, Inc., a California
Corporation ("Company"), hereby adopt the following resolutions by unanimous
written consent in lieu of a meeting pursuant to their authority to do so in the
Bylaws of the Company and Section 307 of the California Corporations Code.
RESOLVED, that the Settlement Agreement, Mutual Release, Assignment of Claims
and Covenant Not To Xxx between the Company and Xxxxxx X. Xxxxxx, dated November
13, 1996 (the "Agreement"), a copy of which is attached to this Unanimous
Written Consent of the Board of Directors as Exhibit 1, is hereby authorized,
ratified, adopted and approved. The execution of the Agreement by Xxxxxx
Xxxxxxx as the President and Chief Executive Officer of the Company on behalf of
the Company is hereby ratified and approved.
RESOLVED, that the officers and directors of the Company be, and they hereby
are, authorized, empowered and directed to do and perform all such acts and
things and to sign all such documents, certificates, directions, instruments and
statements, whether under the corporate seal of the Company or otherwise, and to
take all such other steps as such officer, officers, director or directors shall
determine to be necessary and advisable to effectuate the matters set forth in
the foregoing resolution, any such determination to be conclusively evidenced by
the taking or causing to be taken of such action or the execution and delivery
of any such document, certificate, direction, instrument or statement by any
such officer, officers, director or directors, including without limitation
thereto, the authority to execute all documents specifically required to be
executed as indicated in the Agreement and attachments thereto.
IN WITNESS WHEREOF, this Unanimous Written Consent of the Board of Directors of
the Company has been executed on and is effective as of _______________________.
35
------------------------------ ------------------------------
Xxxxxx Xxxxxxx, Xxxxxx Xxxxxxxx, Director
Chairman of the Board of Directors
------------------------------
Xxxxx Xxxxxx, Director
36
EXHIBIT 3 TO EXHIBIT C
RELEASE OF INCOMNET, INC.
BY NATIONAL TELEPHONE & COMMUNICATIONS, INC.
This Release is executed on _______________________________, by
National Telephone and Communications, Inc. ("NTC"), a Nevada Corporation, in
favor of Incomnet, Inc. ("Incomnet"), a California corporation.
WHEREAS, Xxxxxx X. Xxxxxx is currently employed by NTC as President
and Chief Executive Officer of NTC, a wholly owned subsidiary of Incomnet, Inc.
("Incomnet");
WHEREAS, Xxxxxx entered into certain loan agreements with NTC for the
principal amount of $547,240, plus interest, in accordance with the
authorization and direction of a unanimously approved resolution of NTC's Board
of Directors dated October 12, 1995 ("Xxxxxx Loan Agreements"); and
WHEREAS, Incomnet has assumed all obligations owed by Xxxxxx pursuant
to the Xxxxxx Loan Agreements pursuant to a Settlement Agreement, Mutual
Release, Assignment of Claims and Covenant Not to Xxx executed by and between
Xxxxxx and Incomnet dated November 13, 1996 ("Settlement Agreement").
NOW, THEREFORE, in consideration of the above:
1. NTC, for itself, its predecessors, successors and assigns, hereby
releases, acquits, disclaims and forever discharges Incomnet from any and all
debts, liabilities, obligations, promises, covenants, contracts, endorsements,
bonds, controversies, actions, causes of action, judgments, damages, expenses,
claims and demands whatsoever, in law or in equity, which NTC now has against
Incomnet, or hereafter can, shall or may have, for, or by reason of or related
to, the Xxxxxx Loan Agreements (the "Release").
2. It is expressly understood and agreed that NTC expressly and
voluntarily waives and relinquishes all rights and benefits under Section 1542
of the California Civil Code as well as all of the provisions of all comparable
similar statutes of any State of the United States and/or principles of common
law, if in any way applicable to this Release. The parties acknowledge that
this waiver and relinquishment is an essential and material term of this Release
without which the consideration described herein would not have been given and
delivered and without
37
which NTC would not have executed and delivered this Release. Section 1542 of
the California Civil Code provides as follows:
38
"GENERAL RELEASE - CLAIMS EXTINGUISHED:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH A 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."
A. NTC acknowledges that the effect and import of this Release
and of the waivers contained in Paragraph 1 above and this Paragraph have been
explained to it by its own legal counsel, or that it has had the opportunity but
has chosen not to retain legal counsel, particularly in regard to the above
releases. With this knowledge and understanding, NTC elects to, and does, waive
the provisions of Section 1542 of the California Civil Code and of any similar
case or statutory law of other states that may be applicable, and relinquishes
any rights which it may otherwise have thereunder, to the fullest extent
permitted by law, with regard to the above releases, and agrees that the above
releases shall remain in full force and effect notwithstanding any discovery or
existence of any additional or different facts.
B. NTC acknowledges that should its representatives hereafter
discover facts different from, or in addition to, those its representatives now
know or believe to be true, including without limitation, facts concerning the
matters covered in the recitals above, NTC agrees that this Release shall be in,
and remain in, full force and effect in all respects, notwithstanding (a) any
discovery by it or its representative of such different or additional facts; or
(b) the present knowledge, if any, of the parties, or any other person; or (c)
whether full disclosure has been made by the parties, or any other person, of
all facts presently known to such person. It is the intention of NTC to hereby
fully, finally and forever settle and release as against Incomnet all claims
referred to in the Release ("Released Claims") and any and all items relative to
the Released Claims that now exist, or heretofore have existed between Incomnet
and NTC as set forth herein. In furtherance of such intention, this Release
shall be and remain in effect as a full and complete release of all matters
covered hereby, notwithstanding the discovery by NTC, or its representatives, of
the existence of any additional or different claims or the facts relative
thereto.
C. NTC represents and warrants that it has had this Release
reviewed by legal counsel or other advisors of its own choosing and has received
independent legal advice from legal counsel and other advisers with respect to
the advisability of the execution of this Release, or has had the opportunity to
do so and has freely and voluntarily
39
determined not to do so, and that it is executing this Release freely and
willingly following such consultation.
Dated:
------------------------------
National Telephone & Communications, Inc.
By:
------------------------------
Xxxxxx X. Xxxxxx, President and Chief Executive Officer
40
EXHIBIT 3 TO EXHIBIT G
RELEASE OF INCOMNET, INC.
BY NATIONAL TELEPHONE & COMMUNICATIONS, INC.
This Release is executed on ___________________________, by National
Telephone and Communications, Inc. ("NTC"), a Nevada Corporation, in favor of
Incomnet, Inc. ("Incomnet"), a California corporation.
WHEREAS, Xxxxxx is currently employed by NTC as Executive Vice
President of NTC, a wholly owned subsidiary of Incomnet, Inc. ("Incomnet");
WHEREAS, Xxxxxx entered into certain loan agreements with NTC for the
principal amount of $465,000, plus interest, in accordance with the
authorization and direction of a unanimously approved resolution of NTC's Board
of Directors dated October 12, 1995 ("Xxxxxx Loan Agreements"); and
WHEREAS, Incomnet has assumed all obligations owed by Xxxxxx pursuant
to the Xxxxxx Loan Agreements pursuant to a Settlement Agreement, Mutual
Release, Assignment of Claims and Covenant Not to Xxx executed by and between
Xxxxxx and Incomnet dated November 13, 1996 ("Settlement Agreement").
NOW, THEREFORE, in consideration of the above:
1. NTC, for itself, its predecessors, successors and assigns, hereby
releases, acquits, disclaims and forever discharges Incomnet from any and all
debts, liabilities, obligations, promises, covenants, contracts, endorsements,
bonds, controversies, actions, causes of action, judgments, damages, expenses,
claims and demands whatsoever, in law or in equity, which NTC now has against
Incomnet, or hereafter can, shall or may have, for, or by reason of or related
to, the Xxxxxx Loan Agreements (the "Release").
2. It is expressly understood and agreed that NTC expressly and
voluntarily waives and relinquishes all rights and benefits under Section 1542
of the California Civil Code as well as all of the provisions of all comparable
similar statutes of any State of the United States and/or principles of common
law, if in any way applicable to this Release. The parties acknowledge that
this waiver and relinquishment is an essential and material term of this Release
without which the consideration described herein would not have been given and
delivered and without
41
which NTC would not have executed and delivered this Release. Section 1542 of
the California Civil Code provides as follows:
42
"GENERAL RELEASE - CLAIMS EXTINGUISHED:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH A 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."
A. NTC acknowledges that the effect and import of this Release
and of the waivers contained in Paragraph 1 above and this Paragraph have been
explained to it by its own legal counsel, or that it has had the opportunity but
has chosen not to retain legal counsel, particularly in regard to the above
releases. With this knowledge and understanding, NTC elects to, and does, waive
the provisions of Section 1542 of the California Civil Code and of any similar
case or statutory law of other states that may be applicable, and relinquishes
any rights which it may otherwise have thereunder, to the fullest extent
permitted by law, with regard to the above releases, and agrees that the above
releases shall remain in full force and effect notwithstanding any discovery or
existence of any additional or different facts.
B. NTC acknowledges that should its representatives hereafter
discover facts different from, or in addition to, those its representatives now
know or believe to be true, including without limitation, facts concerning the
matters covered in the recitals above, NTC agrees that this Release shall be in,
and remain in, full force and effect in all respects, notwithstanding (a) any
discovery by it or its representative of such different or additional facts; or
(b) the present knowledge, if any, of the parties, or any other person; or (c)
whether full disclosure has been made by the parties, or any other person, of
all facts presently known to such person. It is the intention of NTC to hereby
fully, finally and forever settle and release as against Incomnet all claims
referred to in the Release ("Released Claims") and any and all items relative to
the Released Claims that now exist, or heretofore have existed between Incomnet
and NTC as set forth herein. In furtherance of such intention, this Release
shall be and remain in effect as a full and complete release of all matters
covered hereby, notwithstanding the discovery by NTC, or its representatives, of
the existence of any additional or different claims or the facts relative
thereto.
C. NTC represents and warrants that it has had this Release
reviewed by legal counsel or other advisors of its own choosing and has received
independent legal advice from legal counsel and other advisers with respect to
the advisability of the execution of this Release, or has had the opportunity to
do so and has freely and voluntarily
43
determined not to do so, and that it is executing this Release freely and
willingly following such consultation.
Dated:
------------------------------
National Telephone & Communications, Inc.
By:
------------------------------
Xxxxxx X. Xxxxxx, President and Chief Executive Officer
44
