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 Xxxx X. Xxxxxxxxxx, an individual resident of the State of
Arizona ("Leadbeater").
WITNESSETH:
WHEREAS, Osage and Leadbeater 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 Leadbeater as
its Chairman of the Board and Chief Executive Officer;
WHEREAS, Leadbeater also holds positions as an officer and director of
Osage's subsidiaries;
WHEREAS, Osage and Leadbeater are party to a certain termination benefits
agreement dated as of August 3, 1998 (the "Termination Benefits Agreement"),
pursuant to which Leadbeater would be entitled to receive additional benefits if
Leadbeater's employment with Osage was terminated under certain circumstances;
WHEREAS, Osage has granted Leadbeater options to purchase an aggregate
800,000 shares of Osage common stock (the "Options"), as set forth on Schedule A
attached hereto;
WHEREAS, Leadbeater is the record and beneficial owner of 664,000 shares of
Osage common stock (the "Shares");
WHEREAS, Osage and Leadbeater 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"), Xxxxxxxxxx, Xxxxx X. Xxxxx and Xxxxxx X. Xxxxxxx,
P.C. as Escrow Agent (the "Securities Purchase Agreement"), Leadbeater 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 Leadbeater's 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 Leadbeater 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 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. Xxxxxxxxxx shall resign from all of the positions of officer and
director that he holds with the Company, including but not limited to Chairman
of the Board and Chief Executive Officer 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 Leadbeater, any and all other agreements,
arrangements or understandings which Leadbeater has with the Company are
terminated and shall be void and of no further effect.
On or before the Closing Date, Leadbeater 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 Leadbeater severance 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
Leadbeater's death prior to December 22, 2000, Osage shall continue to be
obligated to make the Severance Payment to Leadbeater's 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 Leadbeater for all reasonable business expenses approved by
Osage and incurred by him in the promotion of Osage's business through the
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Closing Date (the "Reimbursable Expenses"), but only to the extent such expenses
are deductible to Osage pursuant to the Internal Revenue Code of 1986, as
amended, provided that Leadbeater has submitted appropriate receipts evidencing
the expenses. In addition, upon verification thereof, Osage shall repay
Leadbeater the principal sum of $83,326.42, plus accrued but unpaid interest
thereon through the date hereof in the amount of $162.04, for a total of
$83,488.44 (the "Loan Payable"), representing the balance of the promissory note
from Osage to Leadbeater in the original principal amount of $450,000. 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 Leadbeater a sum equal to 25% of the
Payables; and
b. For every successive thirty day period following the First Payment Date,
Osage shall pay Leadbeater 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, Leadbeater 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. Leadbeater's COBRA benefits will not be forfeited.
b. Surrender of Options. On the Closing Date, Leadbeater 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. Leadbeater acknowledges that
effective on the Closing Date he resigns from Osage as Chief Executive Officer
and Chairman of the Board 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, Leadbeater 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. In the event that
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Osage requests Leadbeater 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 Leadbeater during the course of fulfilling such obligations for
which Leadbeater submits appropriate receipts. Leadbeater 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, Leadbeater 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. Leadbeater 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 Leadbeater 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 Leadbeater 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 Leadbeater the term life insurance policy
it maintained on the life of Leadbeater 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 Leadbeater.
f. Directors and Officers Insurance. Osage agrees to extend coverage of
Leadbeater 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 Leadbeater and 25% Xxxxx X. Xxxxx.
x. Xxxxxxxxxx'x Personal Expenses. Leadbeater 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), Leadbeater shall be
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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. Leadbeater 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 Leadbeater 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 Leadbeater 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 Leadbeater 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. Leadbeater 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 Leadbeater's possession or control.
6. Releases.
a. Release by Leadbeater. Except for the Company's obligations set forth
herein, Leadbeater, 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 Leadbeater's 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, Leadbeater hereby
forever releases and discharges the Company from any liability or obligation to
reinstate or reemploy him in any employment capacity.
Leadbeater 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 Leadbeater's obligations set forth
herein, the Company hereby fully, irrevocably and unconditionally releases and
discharges Leadbeater, 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 Leadbeater's 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 Leadbeater. Leadbeater 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. Leadbeater 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 Leadbeater 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 Leadbeater
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 Leadbeater 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 Leadbeater. In order to induce Osage to
enter into this Agreement, Leadbeater hereby represents and warrants to Osage as
follows:
a. Shares and Options. Immediately prior to Closing, Leadbeater owned
664,000 Shares and Options to purchase an aggregate 800,000 shares of Osage
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common stock. Leadbeater represents to 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 Leadbeater and
contained in a commemorative plaque, Leadbeater 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. Xxxxxxxxxx (other than the Options being surrendered in accordance
with the terms of this Agreement), Xxxxx X. Xxxxx, 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,
Leadbeater has not guaranteed any of the Company's obligations. The Company has
not guaranteed any of Leadbeater's 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
Leadbeater and the Company or between the Company and any affiliates, customers,
suppliers or business associates of Leadbeater. Furthermore, Leadbeater has
disclosed to Osage all material relevant information concerning any transactions
or dealings between the Company, Leadbeater or any affiliates or business
associates of Leadbeater.
e. Representations in the Securities Purchase Agreement. Each of the
representations and warranties made by Leadbeater 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 Leadbeater in so far as the falsehood of same
shall be deemed to be a breach by Leadbeater of his obligations hereunder.
9. Restrictive Covenants. In consideration of the Severance Payment, Leadbeater
hereby covenants and agrees as follows:
a. Confidential Information. Leadbeater 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
Leadbeater 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 Leadbeater) or information that Leadbeater 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 Leadbeater received as
an employee of Osage and other good and valuable consideration, Leadbeater
expressly agrees that he shall not disclose, use or make available any
Confidential Information to any third party. Leadbeater shall return to the
Company all Confidential Information and other property of the Company on the
date hereof.
c. Covenant Not To Compete. Leadbeater 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, Leadbeater 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, Leadbeater 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
Leadbeater 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 Leadbeater 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 Leadbeater contained in Sections 9(c) and (d) above, Osage shall
pay Leadbeater the lump sum of $159,360 (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 Leadbeater 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. Leadbeater 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. Leadbeater therefore agrees that in the event of any breach
or threatened breach by him of Section 9, the Company shall be entitled, in
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addition to monetary damages or other remedies, to equitable relief, including
injunctive relief, and payment by Leadbeater of all costs and expenses incurred
by the Company in enforcing said paragraph against Leadbeater, 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 Leadbeater, except when legally
required to do so. Leadbeater 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 Leadbeater:
00000 Xxxx Xxxxxx Xxxx
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, Xxxxxxx 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
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herewith. Neither of the parties hereto has relied upon any representation made
by or 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. Leadbeater 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.
Leadbeater 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. Leadbeater 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, Leadbeater understands and the parties agree that, for a period of
seven days following the execution of this Agreement, Leadbeater 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/ Xxxx X. Xxxxxxxxxx
----------------------------------------
Xxxx X. Xxxxxxxxxx
Osage Systems Group, Inc.
By: /s/ Xxxx Xxxxxx
-------------------------------------
Xxxx Xxxxxx,
Interim Chief Executive Officer
12
Schedule A
Options
Date of
Number Grant Expiration Date Exercise Price Option #
-----------------------------------------------------------------------------------------
19,057 12-19-97 12-19-2000 3.00 1997-16
-----------------------------------------------------------------------------------------
664,000 6-11-98 12-19-2003 4.50 1998-3
-----------------------------------------------------------------------------------------
116,943 8-25-99 8-25-2009 $1.437
-----------------------------------------------------------------------------------------
13
Schedule 5(d)
Guarantees
None.
14
