EXHIBIT 10.7 -- SEVERANCE AGREEMENT BETWEEN INCOMNET, INC. AND
XXXXXX XXXXXXX, DATED SEPTEMBER 29, 1998, AND
AMENDMENT THERETO DATED NOVEMBER 1, 1998.
INCOMNET, INC.
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
November 1, 1998
BY FACSIMILE
Xx. Xxxxxx Xxxxxxx
Dear Xx. Xxxxxxx:
This letter, when executed by you, will constitute our agreement as to the
amended terms of your settlement arrangements with Incomnet, Inc., National
Telephone & Communications, Inc. and GenSource Corporation (collectively, the
"Company"), which, with the exception of paragraph 6 below, shall become
effective upon the indefeasible payment to Xxxxxx Xxxxxxx of all of the sums set
forth in paragraph 1 below.
1. In lieu of the settlement payments otherwise due and owing to you under
Section 3 of your settlement agreement with the Company dated August 31,
1998, as amended on September 29, 1998 (the "Settlement Agreement"), you
shall be entitled to receive your monthly severance payment of $20,833.33
during the months of October, November and December 1998 and, on or before
December 15, 1998, you shall receive a lump sum payment of $100,000. All
of the foregoing payments shall be made no later than December 15, 1998.
2. All benefits, including health, automobile allowance and insurance, as
outlined in the Severance Agreement, shall be terminated as of December 31,
1998. You will have the opportunity to continue your health insurance
coverage consistent with the requirements under COBRA.
3. All stock options set forth in Section 5 of the Settlement Agreement, as
amended, shall terminate as of December 15, 1998, except those stock
options (the "Continuing Options") to purchase 50,000 shares of Incomnet,
Inc.'s Common Stock initially granted on November 30, 1995, at an exercise
price of $4.37 per share, expiring on September 1, 2003, shall remain in
full force and effect on the same terms as established when those stock
options were granted; provided, however, that if, in the judgment of the
Company you do not cooperate with the Company or its representatives, or
are otherwise unavailable to assist the Company or its representatives, in
connection with preparing for or giving deposition testimony relating to
any litigation or other proceeding involving the Company, then, the Company
may unilaterally terminate the Continuing Options upon written notice to
you informing you of such termination of the Continuing Options.
4. The consulting services contemplated by Section 6 of the Settlement
Agreement shall terminate as of December 31, 1998. In lieu thereof, you
shall be entitled to receive $100 per hour, plus reimbursement of expenses
for time spent by you in preparing for or giving deposition or trial
testimony in connection with any litigation or other proceeding relating to
the Company.
5. If the Company defaults on its payment obligations under this letter
agreement, you shall be entitled to receive all payments and options under
the Settlement Agreement.
6. Except as expressly set forth herein, the provisions of the Settlement
Agreement, including without limitation the release and indemnity
provisions thereof, shall remain in full force and effect, unaffected by
the terms and conditions of our agreement set forth in this letter.
If the terms outlined by this arrangement are acceptable, please sign in
the space provided below and return the signed copy to me by facsimile. My fax
number is (000) 000-0000. This offer terminates at 5:00 p.m. on November 1,
1998.
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Very truly yours,
/s/ Xxxxx Xxxxxxx
-----------------
President and Chief Executive Officer
AGREED AND ACCEPTED
/s/ Xxxxxx Xxxxxxx
------------------
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SETTLEMENT AGREEMENT
This Settlement Agreement (the "Agreement") is made as of this 31st day of
August 1998 by and between Incomnet, Inc., a California corporation (the
"Company"), National Telephone 8 Communications, Inc., a Delaware corporation
("NTC"), GenSource Corporation, a California corporation ("GenSource"), and
Xxxxxx Xxxxxxx, an individual ("Xxxxxxx"), with respect to the following facts:
RECITALS
X. Xxxxxxx is the Chief Executive Officer, President and Chairman of the
Board of Directors of the Company. Xxxxxxx has been the Chief Executive Officer,
President and a director of the Company since November 1995, and has been the
Chairman of the Board of Directors of the Company since May 1996. Xxxxxxx was
also a director of NTC from May 9, 1996 until June 30, 1998, and has been an
officer and director of GenSource since May 1997.
B. The Company and Xxxxxxx are parties to that certain Employment Agreement
dated as of November 27, 1995, as amended by that certain Amendment to
Employment Agreement dated September 3, 1996 and as further amended by that
certain Amendment to Employment Agreement dated June 5, 1997 (collectively, the
"Employment Agreement"), which Employment Agreement sets forth the terms and
conditions of Xxxxxxx'x employment by the Company.
C. The Company and Xxxxxxx desire to terminate the Employment Agreement and
Xxxxxxx'x position as an officer and director of the Company, and GenSource and
Xxxxxxx desire to terminate Xxxxxxx'x position as an officer and director of
GenSource, upon the terms and conditions more fully set forth herein. The
Company has requested that Xxxxxxx remain an employee of the Company through the
Effective Date (defined below).
D. This Agreement does not constitute an admission of wrongdoing or breach
of the Employment Agreement by any of the parties hereto.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, THE PARTIES HERETO AGREE AS FOLLOWS:
1. TERMINATION OF EMPLOYMENT AGREEMENT AND WITHDRAWAL AS OFFICER AND
DIRECTOR
Subject to the terms and conditions of this Agreement, the Company and
Xxxxxxx agree that, effective October 1, 1998 (the "Effective Date), except as
expressly provided herein, the Employment Agreement shall be deemed terminated
and, as of the Effective Date, Xxxxxxx shall cease to serve in any capacity as
an officer, director or employee of the Company and
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GenSource. Notwithstanding anything else herein to the contrary, Xxxxxxx agrees
to withdraw as a director and Chairman of the Board of Directors and CEO of the
Company and as an officer and director of GenSource prior to October 1, 1998
upon a change of control of the Company's Board of Directors.
2. CONTINUED EFFECTIVENESS OF EMPLOYMENT AGREEMENT UNTIL EFFECTIVE DATE
Until the Effective Date, the Employment Agreement shall remain in
full force and effect and the Company shall continue to timely perform all of
its obligations thereunder including, without limitation, the payment of
compensation, benefits, expense reimbursements and allowances. On the Effective
Date, the Company shall pay to Xxxxxxx all accrued compensation, benefits and
reimbursements due to Xxxxxxx as of the Effective Date including, without
limitation, all accrued vacation pay.
3. SETTLEMENT PAYMENTS
The Company covenants to pay to Xxxxxxx (or to his beneficiaries,
heirs, successors or assigns in the event of Xxxxxxx'x death or incapacity)
settlement payments as follows: (a) for the period from October 1, 1998 to
September 30, 2000, the Company will pay to Xxxxxxx annual compensation at the
rate of $250,000 per year, payable in equal installments on the 15" and the last
day of each month less withholding for federal, state or local taxes, and (b)
for the period from October 1, 1998 to September 30, 2000, the Company will pay
to Xxxxxxx a monthly automobile allowance equal to $650, subject to mitigation
as described below, payable in equal installments on the 15th and the last day
of each month without any withholding for federal, state or local taxes;
provided, however, that to the extent Xxxxxxx actually receives employment,
consulting or severance compensation from a source other than the Company,
whether or not said source is affiliated with Xxxxxxx or if Xxxxxxx is self
employed, during the period from October 1, 1999 to September 30, 2000 (the
"Second Period"), that compensation shall be credited against, and shall reduce
the compensation payable by the Company pursuant to Section 3(a) above during
the Second Period as and when such compensation is actually received by Xxxxxxx;
and provided further that to the extent that, during the Second Period, Xxxxxxx
actually receives an automobile allowance or mileage reimbursement from a source
other than the Company, whether for ongoing employment or consulting work, or in
connection with another severance arrangement, said reimbursements shall be
credited against, and shall reduce the reimbursement payable by the Company
pursuant to Section 3(b) above during the Second Period as and when such
reimbursements are actually received by Xxxxxxx. Xxxxxxx will be entitled to the
severance compensation set forth in Section 3(a) above for the period from
October 1, 1998 to September 30, 1999 regardless of whether, during that period,
Xxxxxxx is employed by another emploer or receiving employment, consulting or
severance compensation from another source, and regardless of whether or not
said source is an affiliate of Xxxxxxx; provided, however, that Xxxxxxx
covenants to use his best efforts to find other employment to mitigate during
the Second Period.
4. INSURANCE BENEFITS
In addition to the severance payments provided in Section 3 of this
Agreement, the Company agrees to reimburse Xxxxxxx through September 30, 2000
for the cost he incurs to maintain and pay for the existing health insurance
policies covering Xxxxxxx and his family for which the Company presently
reimburses Xxxxxxx; provided, however, that the reimbursement will not exceed
$2,064 per year, and provided further, that Xxxxxxx will not be entitled to be
reimbursed for said health coverage by the Company at any time that Xxxxxxx is
receiving health insurance coverage at another party's expense, whether or not
said party is an affiliate of Xxxxxxx.
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5. STOCK OPTIONS
Xxxxxxx will be entitled to retain and exercise all vested stock
options (the "Retained Stock Options") which he holds as of October 1, 1998 to
purchase the common stock of the Company, and to exercise them in accordance
with their existing terms and conditions including termination dates (subject to
the effect of future stock splits, reverse stock splits, business combinations
and similar transactions involving the Company), during the exercise periods in
effect as of October 1, 1998. After October 1, 1998, Xxxxxxx will not be
entitled to retain or to be granted any stock options to purchase the common
stock of the Company which have not vested by said date, nor shall he be
entitled to retain or to exercise any stock options to purchase the common stock
or any convertible securities of NTC or GenSource, whether vested or unvested.
Xxxxxxx hereby tenders to NTC all stock options to purchase the common stock of
NTC for cancellation, and they shall be deemed canceled on the Effective Date of
this Agreement. The Company covenants to register the shares of stock underlying
the Retained Stock Options with the Securities and Exchange Commission ("SEC")
on the next registration statement on Form S-S filed by the Company with the SEC
pursuant to the Securities Act of 1933, as amended, and to maintain the
effectiveness of said registration statement during the entire term of Xxxxxxx'x
Retained Stock Options. The following table summarizes the Retained Stock
Options which are vested as of September 1,1998:
Number Exercise Price Per Share Date of Expiration
------ ------------------------ ------------------
25,000 $4.87 2/28/2001
100,000 4.37 4/05/2001
25,000 4.87 5/31/2001
25,000 4.87 8/31/2001
25,000 4.87 11/30/2001
25,000 4.37 2/28/2002
25,000 4.37 2/28/2002
50,000 4.87 9/01/2003
37,500 4.87 9/29/2003
--------
337,500
(See Amendment attached)
The Retained Stock Options shall continue to be governed by the 1996
Incomnet, Inc. Stock Option Plan for Directors, Officers and Key Consultants of
Incomnet, Inc. and its Subsidiaries (the "Plan"), and the related Stock Option
Agreements, which shall remain in full force and effect with respect to the
Retained Stock Options, except that the dates of expiration of the Retained
Stock Options shall be as set forth in Section 5 of this Agreement. In the event
that the Plan is discontinued for any reason, the Retained Stock Options shall
remain in full force and effect in accordance with their original terms and
conditions, as amended by the Employment Agreement and this Agreement.
6. CONSULTING SERVICES
As partial consideration for the compensation payable to Xxxxxxx
pursuant to Section 3 of this Agreement, Xxxxxxx agrees to provide consulting
services to the Company, Rapid Cast, Inc., NTC and GenSource on an "as-needed"
basis as reasonably requested and with
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reasonable notice by the Company, as follows: (1) during the period from October
1, 1998 until September 30, 1999 ("First Period"), Xxxxxxx will provide
consulting services to the Company for a period of up to 40 hours per month
during reasonable business hours on a noncumulative basis, and (2) during the
Second Period, Xxxxxxx will provide consulting services to the Company for a
period of up to 10 hours per month during reasonable hours on a noncumulative
basis, whether or not Xxxxxxx is entitled to receive any settlement payments
pursuant to Section 3 of this Agreement. Xxxxxxx shall be entitled to receive
the payments provided for in Section 3 of this Agreement (subject to the
limitations in Section 3 of this Agreement) irrespective of the number of
consulting hours actually performed by Xxxxxxx during the First Period or the
Second Period, unless Xxxxxxx is in material default with respect to his
obligation to provide consulting services under Section 6 of this Agreement. If
the consulting hours exceed 40 hours or 10 hours per month, as the case may be,
during the above-referenced respective periods, then the Company will compensate
Xxxxxxx as an independent consultant at the rate of $150 per hour. To the extent
that the Company requests less than 40 hours per month of consulting services
from Xxxxxxx during the First Period and less than 10 hours per month of
consulting services from Xxxxxxx during the Second Period, then the Company will
not be entitled to accumulate those unused hours, and Xxxxxxx will not in any
event be obligated to provide more than 40 hours per month of consulting
services for the Company during the First Period and more than 10 hours per
month of consulting services for the Company during the Second Period. The
consulting services will include, at the sole discretion of the Company's Board
of Directors, having Xxxxxxx remain on the Board of Directors of Rapid Cast,
Inc. (subject to the continued effectiveness of a reasonably acceptable
directors' and officers' liability insurance policy provided by Rapid Cast,
Inc.), if requested by the Company and permitted by Rapid Cast, Inc. Xxxxxxx
will also assist the Company, GenSource, Rapid Cast, Inc. and NTC in any
litigation matters including, but not limited to, assisting with preparation for
trial, depositions, and serving as a witness in judicial or administrative
proceedings. The Company will also reimburse Xxxxxxx for the reasonable
verifiable expenses incurred by him in performing said consulting services,
consistent with the Company's then existing policy relating to expense
reimbursements.
7. INDEMNIFICATION OF XXXXXXX FOR ACTIONS BY THIRD PARTIES
A. The Company hereby agrees to indemnify and hold Xxxxxxx harmless
from any liability, claims, damages, losses, expenses, judgments or settlements
actually incurred by him, including but not limited to reasonable attorneys'
fees and costs actually incurred by him resulting from Xxxxxxx being made a
party to, or being threatened to be made a party to, any present or future
proceeding (other than an action by, or in the right of the Company, which is
addressed in Section 8A of this Agreement), relating to actions Xxxxxxx has
taken which were within the scope of his employment and authority as the Chief
Executive Officer and Chairman of the Board of Directors or agent of the
Company, provided that Xxxxxxx acted in good faith and in a manner he reasonably
believed to be in the best interest of the Company and, in the case of a
criminal proceeding, had no reasonable cause to believe his conduct was
unlawful; and provided further, that the conduct is within the scope of the
indemnification permitted by Sections 204 and 317 of the California Corporations
Code. As part of this indemnification agreement, the Company agrees to reimburse
Xxxxxxx for reasonable legal fees and costs to Xxxxxxx as they are incurred for
any actions for which the Company is obligated to indemnify Xxxxxxx pursuant to
the terms of this Agreement. If the Company provides a defense for Xxxxxxx at
its expense pursuant to Section 7A of this Agreement and there is no actual or
potential conflict of interest, then Xxxxxxx may not seek
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indemnification from the Company for the fees or costs of any separate counsel
which he may engage. If there is an actual or reasonable likelihood of an actual
conflict of interest under those circumstances, then Xxxxxxx may retain separate
counsel and the Company will reimburse Xxxxxxx for the reasonable legal fees and
costs incurred by Xxxxxxx in such actions if they are covered by the Company's
indemnification obligation under this Agreement.
B. NTC hereby agrees to indemnify and hold Xxxxxxx harmless from any
liability, claims, damages, losses, expenses, judgments or settlements actually
incurred by him, including but not limited to reasonable attorneys' fees and
costs actually incurred by him resulting from Xxxxxxx being made a party to, or
being threatened to be made a party to, any present or future proceeding (other
than an action by, or in the right of NTC, which is addressed in Section 8B of
this Agreement), relating to actions Xxxxxxx has taken which were within the
scope of his authority as a director or agent of NTC, provided that Xxxxxxx
acted in good faith and in a manner he reasonably believed to be in the best
interest of NTC and, in the case of a criminal proceeding, had no reasonable
cause to believe his conduct was unlawful; and provided further, that the
conduct is within the scope of the indemnification permitted by Sections 204 and
317 of the California Corporations Code. As part of this indemnification
agreement, NTC agrees to reimburse Xxxxxxx for reasonable legal fees and costs
to Xxxxxxx as they are incurred for any actions of which NTC is obligated to
indemnify Xxxxxxx pursuant to the terms of this Agreement. If NTC provides a
defense for Xxxxxxx at its expense pursuant to Section 7B of this Agreement and
there is no actual or potential conflict of interest, then Xxxxxxx may not seek
indemnification from NTC for the fees or costs or any separate counsel which he
may engage. If there is an actual or reasonable likelihood of an actual conflict
of interest under those circumstances, then Xxxxxxx may retain separate counsel
and NTC will reimburse Xxxxxxx for the reasonable legal fees and costs incurred
by Xxxxxxx in such actions if they are covered by NTC's indemnification
obligation under this Agreement.
C. GenSource hereby agrees to indemnify and hold Xxxxxxx harmless from
any liability, claims, damages, losses, expenses, judgments or settlements
actually incurred by him, including but not limited to reasonable attorneys'
fees and costs actually incurred by him resulting from Xxxxxxx being made a
party to, or being threatened to be made a party to, any present or future
proceeding (other than an action by, or in the right of GenSource, which is
addressed in Section 8C of this Agreement), relating to actions Xxxxxxx has
taken which were within the scope of his authority as an officer, director or
agent of GenSource, provided that Xxxxxxx acted in good faith and in a manner he
reasonably believed to be in the best interest of GenSource and, in the case of
a criminal proceeding, had no reasonable cause to believe his conduct was
unlawful; and provided further, that the conduct is within the scope of the
indemnification permitted by Sections 204 and 317 of the California Corporations
Code. As part of this indemnification agreement, GenSource agrees to reimburse
Xxxxxxx for reasonable legal fees and costs to Xxxxxxx as they are incurred for
any actions of which GenSource is obligated to indemnify Xxxxxxx pursuant to the
terms of this Agreement. If GenSource provides a defense for Xxxxxxx at its
expense pursuant to Section 7C of this Agreement and there is no actual or
potential conflict of interest, then Xxxxxxx may not seek indemnification from
GenSource for the fees of costs or any separate counsel which he may engage. If
there is an actual or reasonable likelihood of an actual conflict of interest
under those circumstances, then Xxxxxxx may retain separate counsel and
GenSource will reimburse Xxxxxxx for the reasonable legal fees and costs
incurred by Xxxxxxx in such actions if they are covered by GenSource's
indemnification obligation under this Agreement.
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8. INDEMNIFICATION OF XXXXXXX FOR ACTIONS IN THE RIGHT OF THE COMPANY,
NTC OR GENSOURCE
A. The Company hereby agrees to indemnify and hold Xxxxxxx harmless
from any liability, claims, damages, losses, expenses, judgments or settlements
actually incurred by him, including but not limited to reasonable attorneys'
fees and costs actually incurred by him resulting from Xxxxxxx being made a
party to, or being threatened to be made a party to, any proceeding by or in the
right of the Company to procure a judgment in its favor by reason of any action
taken by Xxxxxxx as an officer, director or agent of the Company, provided that
Xxxxxxx acted in good faith in a manner he believed to be in the best interests
of the Company and its shareholders; provided, that such indemnification will be
coextensive with and not beyond the scope of the indemnification permitted by
Sections 204 and 317 of the California Corporations Code, and in particular will
not be (i) for acts or omissions that involve intentional misconduct or a
knowing and culpable violation of law, (ii) for acts or omissions that Xxxxxxx
believed to be contrary to the best interests of the Company or its shareholders
or that involve the absence of good faith on the part of Xxxxxxx, (iii) for any
transaction from which Xxxxxxx derived an improper personal benefit, (iv) for
acts or omissions that show a reckless disregard by Xxxxxxx of his duties to the
Company or its shareholders in circumstances in which Xxxxxxx was aware, or
should have been aware, in the ordinary course of performing his duties, of a
risk of serious injury to the Company or its shareholders, (v) for acts or
omissions that constitute an unexcused pattern of inattention that amounts to an
abdication of Xxxxxxx'x duty to the Company or its shareholders, (vi) for any
violation by Xxxxxxx of Section 310 of the California Corporations Code or (vii)
for any violation by Xxxxxxx of Section 316 of the California Corporations Code.
As part of this indemnification agreement, the Company agrees to reimburse
Xxxxxxx for reasonable legal fees and costs as they are incurred for any actions
for whic the Company is obligated to indemnify Xxxxxxx pursuant to the terms of
this Agreement.
B. NTC hereby agrees to indemnify and hold Xxxxxxx harmless from any
liability, claims, damages, losses, expenses, judgments or settlements actually
incurred by him, including but not limited to reasonable attorneys' fees and
costs actually incurred by him, resulting from Xxxxxxx being made a party to, or
being threatened to be made a party to, any proceeding by or in the right of NTC
to procure a judgment in its favor by reason of any action taken by Xxxxxxx as a
director or agent of NTC, provided that Xxxxxxx acted in good faith in a manner
he reasonably believed to be in the best interests of NTC and its shareholders;
provided, that such indemnification will be coextensive with and not beyond the
scope of the indemnification permitted by Sections 204 and 317 of the California
Corporations Code, and in particular will not be (i) for acts or omissions that
involved intentional misconduct or a knowing and culpable violation of law, (ii)
for acts or omissions that Xxxxxxx believed to be contrary to the best interests
of the Company or its shareholders or that involve the absence of good faith on
the part of Xxxxxxx, (iii) for any transaction from which Xxxxxxx derived an
improper personal benefit, (iv) for acts of omissions that show a reckless
disregard by Xxxxxxx of his duties to NTC or its shareholders in circumstances
in which Xxxxxxx was aware, or should have been aware, in the ordinary course of
performing his duties, of a risk of serious injury to NTC or its shareholders,
(v) for acts or omissions that constitute an unexcused pattern of inattention
that amounts to an abdication of Xxxxxxx'x duty to NTC or its shareholders, (vi)
for any violation by Xxxxxxx of Section 310 of the California Corporations Code
or (vii) for any violation by Xxxxxxx of Section 316 of the California
Corporations Code. As part of this indemnification agreement, NTC agrees to
reimburse Xxxxxxx for reasonable legal fees and
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costs as they are incurred for any actions for which NTC is obligated to
indemnify Xxxxxxx pursuant to the terms of this Agreement.
C. GenSource hereby agrees to indemnify and hold Xxxxxxx harmless from
any liability, claims, damages, losses, expenses, judgments or settlements
actually incurred by him, including but not limited to reasonable attorneys'
fees and costs actually incurred by him, resulting from Xxxxxxx being made a
party to, or being threatened to be made a party to, any proceeding by or in the
right of GenSource to procure a judgment in its favor by reason of any action
taken by Xxxxxxx as a director or agent of GenSource, provided that Xxxxxxx
acted in good faith in a manner he reasonably believed to be in the best
interests of GenSource and its shareholders; provided, that such indemnification
will be coextensive with and not beyond the scope of the indemnification
permitted by Sections 204 and 317 of the California Corporations Code, and in
particular will not be (i) for acts or omissions that involved intentional
misconduct or a knowing and culpable violation of law, (ii) for acts or
omissions that Xxxxxxx believed to be contrary to the best interests of the
Company or its shareholders or that involve the absence of good faith on the
part of Xxxxxxx, (iii) for any transaction from which Xxxxxxx derived an
improper personal benefit, (iv) for acts of omissions that show a reckless
disregard by Xxxxxxx of his duties to GenSource or its shareholders in
circumstances in which Xxxxxxx was aware, or should have been aware, in the
ordinary course of performing his duties, of a risk of serious injury to
GenSource or its shareholders, (v) for acts or omissions that constitute an
unexcused pattern of inattention that amounts to an abdication of Xxxxxxx'x duty
to GenSource or its shareholders, (vi) for any violation by Xxxxxxx of Section
310 of the California Corporations Code or (vii) for any violation by Xxxxxxx of
Section 316 of the California Corporations Code. As part of this indemnification
agreement, GenSource agrees to reimburse Xxxxxxx for reasonable legal fees and
costs as they are incurred for any actions for which GenSource is obligated to
indemnify Xxxxxxx pursuant to the terms of this Agreement.
9. REIMBURSEMENT
In the event that it is determined that Xxxxxxx is not entitled to
indemnification by the Company, NTC or GenSource, as the case may be, pursuant
to Sections 7 or 8 of this Agreement, then Xxxxxxx is obligated to reimburse the
Company, NTC or GenSource, as the case may be, for all amounts paid by the
Company, NTC or GenSource, as the case may be, on behalf of Xxxxxxx pursuant to
the indemnification provisions of this Agreement. In the event that Xxxxxxx is
successful on the merits in the defense of any proceeding referred to in
Sections 7 or 8 of this Agreement, or any related claim, issue or matter, then
the Company, NTC or GenSource, as the case may be, will indemnify and hold
Xxxxxxx harmless from all fees, costs and expenses actually incurred by him in
connection with the defense of any such proceeding, claim, issue or matter which
have not otherwise already been advanced to Xxxxxxx by the Company in accordance
with this Agreement. Notwithstanding the foregoing, the obligations of the
Company, NTC or GenSource to pay legal fees and costs on behalf of Xxxxxxx
pursuant to Sections 7 and 8 above shall not be contingent or dependent upon the
successful defense of any proceeding covered by the indemnification provisions
set forth in those sections.
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10. MUTUAL GENERAL RELEASE
A. Effective immediately with the Effective Date, Xxxxxxx and the
Company each hereby fully and forever releases and discharges each other and
such party's past, present and future officers, directors, employees, successors
and predecessors from any and all claims, demands, obligations, losses, or
causes of action of any nature relating to the Company, the Employment
Agreement, Xxxxxxx'x employment with the Company, Xxxxxxx'x position as a
director of the Company, whether based in tort, contract or any other theory of
recovery, and whether for compensatory or punitive damages, that now exist or
may hereafter accrue based on actions occurring prior to the effective date of
this release; provided, however, that this release by each party will not extend
to a breach of this Agreement by a party to this Agreement or obligations
expressly preserved by this Agreement. The Company and Xxxxxxx agree that this
release shall not be considered admissions by any party of any liability. The
Company and Xxxxxxx warrant that no promise or inducement has been offered
except as herein set forth. The parties to this Agreement are of legal age and
legally competent to execute this release and accept full responsibility
therefor. The parties hereto further agree that all rights under Section 1542 of
the Civil Code of California, and any similar law of any state or territory of
the United States or other jurisdiction, are hereby expressly waived. Said
Section reads as follows.
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
The Company and Xxxxxxx declare that the terms of this full and final
release of all claims by the parties to this Agreement have been completely read
by the undersigned and are fully understood and voluntarily accepted for the
purpose of making a full and final compromise and settlement. Each party to this
Agreement has consulted with its own legal counsel who has reviewed this
Agreement and advised each respective party of the meaning and effect of the
Agreement.
Notwithstanding anything herein to the contrary, upon a material
default under this Agreement by the Company, Xxxxxxx shall be entitled to assert
and pursue any and all claims against the Company which he may have under this
Agreement, under his Employment Agreement, or related to any position he held
with the Company, including, without limitation, any and all claims that the
Employment Agreement has been improperly terminated by the Company and that
Xxxxxxx is entitled to assert a claim therefor based on Section 15 of the
Employment Agreement. A material default shall expressly include the failure by
the Company to make any payment under Section 3 of this Agreement within ten
(10) days of the date upon which such payment is due under this Agreement.
The Company and Xxxxxxx agree that if, except as expressly permitted
by this Agreement, they hereafter commence, join in, or in any manner seek
relief through any suit arising out of, based upon, or related to any of the
claims released hereunder by said party or in any manner assert against the
other party any of the claims released hereunder, said party will pay to the
releasees against whom such claim(s) are asserted, in addition to any other
damages caused thereby, all attorneys' fees incurred by such releasees in
defending or otherwise
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responding to said suit or claim.
The Company and Xxxxxxx represent and warrant to each other that there
has been no assignment or other transfer of any interest in any of the claims
within the scope of the release set forth in this Section 10A, and each party
agrees to indemnify and hold each other party harmless from any liability,
claims, demands, damages, costs, or expenses and attorneys' fees incurred as a
result of any person asserting any such assignment or transfer of any rights or
any claims under any such assignment or transfer.
B. Effective immediately with the Effective Date, Xxxxxxx and NTC each
hereby fully and forever releases and discharges each other and such party's
past, present and future officers, directors, employees, successors and
predecessors from any and all claims, demands, obligations, losses, or causes of
action of any nature relating to NTC and Xxxxxxx'x position as a director of
NTC, whether based in tort, contract or any other theory of recovery, and
whether for compensatory or punitive damages, that now exist or may hereafter
accrue based on actions occurring prior to the effective date of this release;
provided, however, that this release by each party will not extend to a breach
of this Agreement by a party to this Agreement or obligations expressly
preserved by this Agreement. NTC and Xxxxxxx agree that this release shall not
be considered admissions by any party of any liability. NTC and Xxxxxxx warrant
that no promise or inducement has been offered except as herein set forth. The
parties to this Agreement are of legal age and legally competent to execute this
release and accept full responsibility therefor. The parties hereto further
agree that all rights under Section 1542 of the Civil Code of California, and
any similar law of any state or territory of the United States or other
jurisdiction, are hereby expressly waived. Said Section reads as follows.
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
NTC and Xxxxxxx declare that the terms of this full and final release
of all claims by the parties to this Agreement have been completely read by the
undersigned and are fully understood and voluntarily accepted for the purpose of
making a full and final compromise and settlement. Each party to this Agreement
has consulted with its own legal counsel who has reviewed this Agreement and
advised each respective party of the meaning and effect of the Agreement.
Notwithstanding anything herein to the contrary, upon a material
default under this Agreement by NTC, Xxxxxxx shall be entitled to assert and
pursue any and all claims against NTC which he may have under this Agreement or
related to any position he held with NTC.
NTC and Xxxxxxx agree that if, except as expressly permitted by this
Agreement, they hereafter commence, join in, or in any manner seek relief
through any suit arising out of, based upon, or related to any of the claims
released hereunder by said party or in any manner assert against the other party
any of the claims released hereunder, said party will pay to the releasees
against whom such claim(s) are asserted, in addition to any other damages caused
thereby, all attorneys' fees incurred by such releasees in defending or
otherwise responding to said
-9-
suit or claim.
NTC and Xxxxxxx represent and warrant to each other that there has
been no assignment or other transfer of any interest in any of the claims within
the scope of the release set forth in this Section 10B, and each party agrees to
indemnify and hold each other party harmless from any liability, claims,
demands, damages, costs, or expenses and attorneys' fees incurred as a result of
any person asserting any such assignment or transfer of any rights or any claims
under any such assignment or transfer.
C. Effective immediately with the Effective Date, Xxxxxxx and
GenSource each hereby fully and forever releases and discharges each other and
such party's past, present and future officers, directors, employees, successors
and predecessors from any and all claims, demands, obligations, losses, or
causes of action of any nature relating to GenSource or Xxxxxxx'x position as a
director of GenSource, whether based in tort, contract or any other theory of
recovery, and whether for compensatory or punitive damages, that now exist or
may hereafter accrue based on actions occurring prior to the effective date of
this release; provided, however, that this release by each party will not extend
to a breach of this Agreement by a party to this Agreement or obligations
expressly preserved by this Agreement. GenSource and Xxxxxxx agree that this
release shall not be considered admissions by any party of any liability.
GenSource and Xxxxxxx warrant that no promise or inducement has been offered
except as herein set forth. The parties to this Agreement are of legal age and
legally competent to execute this release and accept full responsibility
therefor. The parties hereto further agree that all rights under Section 1542 of
the Civil Code of California, and any similar law of any state or territory of
the United States or other jurisdiction, are hereby expressly waived. Said
Section reads as follows.
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
GenSource and Xxxxxxx declare that the terms of this full and final
release of all claims by the parties to this Agreement have been completely read
by the undersigned and are fully understood and voluntarily accepted for the
purpose of making a full and final compromise and settlement. Each party to this
Agreement has consulted with its own legal counsel who has reviewed this
Agreement and advised each respective party of the meaning and effect of the
Agreement.
Notwithstanding anything herein to the contrary, upon a material
default under this Agreement by GenSource, Xxxxxxx shall be entitled to assert
and pursue any and all claims against GenSource, which he may have under this
Agreement, or related to any position he held with GenSource.
GenSource and Xxxxxxx agree that if, except as expressly permitted by
this Agreement, they hereafter commence, join in, or in any manner seek relief
through any suit arising out of, based upon, or related to any of the claims
released hereunder by said party or in any manner assert against the other party
any of the claims released hereunder, said party will pay to the releasees
against whom such claim(s) are asserted, in addition to any other damages caused
thereby, all attorneys' fees incurred by such releasees in defending or
otherwise responding to said suit or claim.
-10-
GenSource and Xxxxxxx represent and warrant to each other that there
has been no assignment or other transfer of any interest in any of the claims
within the scope of the release set forth in this Section 10C, and each party
agrees to indemnify and hold each other party harmless from any liability,
claims, demands, damages, costs, or expenses and attorneys' fees incurred as a
result of any person asserting any such assignment or transfer of any rights or
any claims under any such assignment or transfer.
11. PUBLIC ANNOUNCEMENTS
Except for disclosures required by the Securities Act of 1933, as
amended, and the Securities Exchange Act of 1934, as amended, including, but not
limited to, disclosure required on Form 8-K, Form 10-Q, or Form 10-K, the
GenSource agrees not to make any public announcement regarding the resignation
of Xxxxxxx as an officer and director of the GenSource until a copy of the
announcement is provided to Xxxxxxx. Xxxxxxx will not have the right to prohibit
such public announcement.
12. NOTICE
Notice will deemed to be given by one party to the other parties of
this Agreement upon personal delivery by messenger, air courier, express mail or
certified registered mail, return receipt requested, or upon facsimile or
telegram, or three days after mailing by first class mail by the party giving
the notice, addressed to the parties as follows, or to any other address or
facsimile numbers provided to the parties in writing in accordance with this
Agreement by the party making the change:
IF TO THE COMPANY: Incomnet, Inc.
00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000-0000
Attention: President
Facsimile No. (000) 000-0000
IF TO NTC: National Telephone & Communications, Inc.
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: President
Facsimile No. (000) 000-0000
IF TO GENSOURCE: GenSource Corporation
00000 Xxxxxx Xxxxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000-0000
Attention: President
Facsimile No. (000) 000-0000
IF TO XXXXXXX: Xxxxxx Xxxxxxx
____________________________
____________________________
Facsimile No. ______________
- 11 -
13. WAIVERS
If any party shall at any time waive any rights hereunder resulting
from any breach by the other party of any of the provisions of this Agreement,
such waiver is not to be construed as a continuing waiver of other breaches of
the same or other provisions of this Agreement. Resort to any remedies referred
to herein shall not be construed as a waiver of any other rights and remedies to
which such party is entitled under this Agreement or otherwise.
14. SUCCESSORS AND ASSIGNS
Each covenant and representation of this Agreement shall inure to the
benefit of and be binding upon each of the parties, their personal
representatives, assigns and other successors in interest.
15. ATTORNEY'S FEES
In the event that any party must resort to legal action in order to
enforce the provisions of this Agreement or to defend such action, the
prevailing party shall be entitled to receive reimbursement from the
nonprevailing party for all reasonable attorney's fees and all other costs
incurred in commencing or defending such action, or in enforcing this Agreement,
including but not limited to post judgement costs.
16. ENTIRE AND SOLE AGREEMENT
This Agreement constitutes the entire agreement between the parties
and supersedes all agreements, representations, warranties, statements, promises
and undertakings, whether oral or written, with respect to the subject matter of
this Agreement. This Agreement may be modified only by a written agreement
signed by all parties.
17. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of the State of California applicable to contracts entered into and
performed entirely in the State of California and without regard to conflicts of
law. The venue for any legal proceedings under this Agreement will be in the
appropriate forum in the County of Los Angeles, State of California.
18. BINDING ARBITRATION
Any dispute under this Agreement will be resolved by binding
arbitration conducted in accordance with the rules and procedures of the
American Arbitration Association as they are then in effect in the County of Los
Angeles, State of California. In order to select an arbitrator, each party to
the dispute will select an arbitrator of its choice, and those selected
arbitrators will then select by mutual agreement a single arbitrator for the
proceeding. The decision of the arbitrator shall be final and binding on the
parties to this Agreement, and judgment thereon may be entered in the Superior
Court for the County of Los Angeles or any other court having jurisdiction. The
Company will advance the arbitrator's fees; however, all costs of the
arbitration proceeding to enforce this Agreement, including attorneys' fees and
witness expenses, shall be paid by the party
- 12 -
against whom the arbitrator rules. It is expressly agreed that the parties to
any such arbitration may take discovery as contemplated and provided for by
California Code of Civil Procedure Section 1283.05. Notwithstanding anything
herein to the contrary, the parties hereto shall not be required to submit a
claim to arbitration if the claim is for temporary or preliminary equitable or
injunctive relief that could not practicably be heard in a timely fashion
through the arbitration process.
19. RIGHTS CUMULATIVE
All rights and remedies under this Agreement are cumulative, and none
is intended to be exclusive of another. No delay or omission in insisting upon
the strict observance of performance of any provision of this Agreement, or in
exercising any right or remedy, shall be construed as a waiver or relinquishment
of such provision, nor shall it impair such right or remedy. Every right and
remedy may be exercised from time to time and as often as deemed expedient.
20. CAPTIONS
The paragraph and other headings contained in this Agreement are for
reference purposes only, and shall not limit or otherwise affect the meaning
hereof.
21. LEGAL HOLIDAYS
In the case where the date on which any action required to be taken,
document required to be delivered or payment required to be made is not a
business day in Los Angeles, California, such action, delivery or payment need
not be made on that date, but may be made on the next succeeding business day.
22. COUNTERPARTS
This Agreement may be executed simultaneously in any number of
counterparts, each of which counterparts shall be deemed to be an original, and
such counterparts shall constitute but one and the same instrument.
23. PARTIES
This Agreement shall inure solely to the benefit of and shall be
binding upon the parties hereto and their respective successors, legal
representatives and assigns, and no other person shall have or be construed to
have any equitable right, remedy or claim under or in respect of or by virtue of
this Agreement or any provision contained herein.
24. AUTHORITY
Each signatory to this Agreement does hereby represent and warrant
that he has the authority to execute this Agreement on behalf of the party to
this Agreement for whom he is executing this Agreement.
- 13 -
25. DIRECTOR AND OFFICER INSURANCE COVERAGE
The Company and NTC shall, to the extent that such policies are
available for and applicable to former officers and directors, maintain in force
for a period of not less than two (2) years following the Effective Date, the
director and officer insurance coverage on substantially the same terms as
currently in effect, and at the present levels of coverage, provided such
coverage is available at commercially reasonable rates.
THE COMPANY: INCOMNET, INC.
By: /s/ Xxxx X. Xxxxxxxxxx
----------------------------------------------
Xxxx . Xxxxxxxxx, Corporate Secretary
NTC: NATIONAL TELEPHONE & COMMUNICATIONS, INC.*
By /s/ Xxxxxxx Xxxxxxxx
----------------------------------------------
Xxxxxxx Xxxxxxxx, Executive Vice President
GenSource: GENSOURCE CORPORATION**
By
----------------------------------------------
Xxxx Xxxxxxxx, President
Xxxxxxx: /s/ Xxxxxx Xxxxxxx
-------------------------------------------------
Xxxxxx Xxxxxxx
*With respect only to the stock option, release, indemnification and insurance
provisions in Sections 5, 7B, 8B, 10B and 25 of this Agreement.
**With respect only to the termination, release and indemnification provisions
in Sections 1, 7C, 8C and 10C of this Agreement.
- 14 -
25. DIRECTOR AND OFFICER INSURANCE COVERAGE
The Company and NTC shall, to the extent that such policies are
available for and applicable to former officers and directors, maintain in force
for a period of not less than two (2) years following the Effective Date, the
director and officer insurance coverage on substantially the same terms as
currently in effect, and at the present levels of coverage, provided such
coverage is available at commercially reasonable rates.
THE COMPANY: INCOMNET, INC.
By: /s/ Xxxx X. Xxxxxxxxxx
----------------------------------------------
Xxxx . Xxxxxxxxx, Corporate Secretary
NTC: NATIONAL TELEPHONE & COMMUNICATIONS, INC.*
By
----------------------------------------------
Xxxxxxx Xxxxxxxx, Executive Vice President
GENSOURCE: GENSOURCE CORPORATION**
By /s/ Xxxx Xxxxxxxx
----------------------------------------------
Xxxx Xxxxxxxx, President
XXXXXXX: /s/ Xxxxxx Xxxxxxx
-------------------------------------------------
Xxxxxx Xxxxxxx
*With respect only to the stock option, release, indemnification and insurance
provisions in Sections 5, 7B, 8B, 10B and 25 of this Agreement.
**With respect only to the termination, release and indemnification provisions
in Sections 1, 7C, 8C and 10C of this Agreement.
- 14 -
It has been a sincere pleasure working with you over the past few years. You are
a true asset to the Company and I know that you will perform admirably in your
new position at NTC. I hope the future will not only be considerably more
productive and far less troublesome than the past but that it will also be
supremely profitable for all concerned.
Sincerely,
/s/ Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx
Enclosures: Settlement Agreement and Amendment to Settlement Agreement
Payroll receipts of 8/14/98 and 8/31/98
AMENDMENT TO SETTLEMENT AGREEMENT
This Amendment to Settlement Agreement is made as of this 29th day of
September, 1998 by and between Incomnet, Inc., a California corporation (the
"Company"), and Xxxxxx Xxxxxxx, an individual ("Xxxxxxx"), with respect to the
following facts:
RECITALS
A. The sale of an additional 2,000,000 shares of Rapid Cast, Inc. by the
Company was completed on September 29, 1998.
B. As a result of the sale, 37,050 additional stock options granted to
Xxxxxxx have vested in accordance with his employment agreement with
the Company.
C. The Company and Xxxxxxx entered into a Settlement Agreement, dated as
of August 31, 1998 (the "Original Settlement Agreement"), and wish to
amend it by this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, THE PARTIES HERETO AGREE AS FOLLOWS:
1. The following options are added to Section 5 of the Original
Settlement Agreement:
Number Exercise Price Per Share Date of Expiration
------ ------------------------ ------------------
37,050 $4.87 9/29/2003
2. Except as modified herein, the Original Settlement Agreement remains
in full force and effect.
THE COMPANY: INCOMNET, INC.
By: /s/ Xxxx X. Xxxxxxxxxx
-------------------------------------------
Xxxx X. Xxxxxxxxxx, Corporate Secretary
XXXXXXX:
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------------
Xxxxxx Xxxxxxx
