FIRST AMENDMENT TO MUTUAL SETTLEMENT AGREEMENT AND RELEASE
Exhibit 10.65
FIRST AMENDMENT TO MUTUAL SETTLEMENT AGREEMENT AND RELEASE
This First Amendment to Mutual Settlement Agreement and Release (“Amendment”) is made as of June 27, 2003, and entered into between Xxxx X. Xxxxx, Xxxxxx X. Xxxxx, Xxxxxx X. Xxxxxx, and Xxxxxxxx Ficachi (referred to hereinafter as the “Rance Group”) and Xxxxxxx Xxxxxx & Company, Xxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxxxxxx, Xxxxxx X. Xxxxx, Xxxxxx X. Xxxxxxx, Xxx X. Xxxxxxx, Xxxxxx X. Xxxxxx, Xxxxxxx Communications Corporation (“MCC”) and any and all of MCC’s current and former directors, officers, agents, employees, (referred to hereinafter as the “Xxxxxxx Group”). The Rance Group and Xxxxxxx Group may be referred to herein individually as the “Party” or collectively as the “Parties”. Unless otherwise stated herein, all defined terms and abbreviations set forth in the Mutual Settlement Agreement and Release (the “Agreement”), shall have the same meanings herein.
WHEREAS, the Parties have previously entered into a Mutual Settlement Agreement and Release (“Agreement”), executed on or about October 28, 2002; and
WHEREAS, the Agreement includes a provision stating that MCC shall register with the Securities and Exchange Commission the resale by the Rance Group of the Shares (“Effective Registration”) and such registration shall become effective prior to the closing of the Merger, and that such registration shall cause the Shares to be freely tradable by the Rance Group at or prior to the closing of the Merger; and
WHEREAS, the Parties now acknowledge that the registration will not become an Effective Registration at or prior to the Closing; and
WHEREAS, the Rance Group is willing to waive the Effective Registration provision
1
in exchange for certain consideration as set forth hereinafter; and
WHEREAS, the parties now desire to amend the Agreement, as follows.
NOW, THEREFORE, in consideration of the mutual promises and agreements herein contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. This Amendment is intended to modify the terms, conditions, and provisions of certain paragraphs of the Agreement, more particularly described below. All paragraph numbers identified below are intended to reference the specific sections and paragraphs as found in the Agreement.
A. Under “1. Consideration” on page 4-5 of the Agreement, the stricken language set forth hereafter is hereby deleted, and the bold underlined language is hereby included, beginning with the 5th full sentence:
. . . The Parties agree that: (a) the MCC Common Stock shall be offered and issued to the Rance Group under
the private offering exemptions from registration available under the Securities Act and the laws of the States in which the Shares will be sold, and that the Shares offered pursuant to Exhibit “C” hereto will not
prior to issuance be registered under the Securities Act or under the securities laws of any state or other jurisdiction. As a result, the Shares as initially issued cannot be transferred without effective
registration under the Securities Act and applicable state securities laws or an exemption there from, and the Shares will be “restricted securities” as that term is defined in Rule 144
2
under the Securities Act; and (b) MCC shall file a registration statement register with the Securities and Exchange Commission
the resale by the Rance Group of the shares prior to the closing of the Merger, (at MCC’s sole expense, which registration statement upon being declared effective by the SEC may also include any other
securities to be sold by MCC, and the successor of MCC or any other security holder of MCC or any successor of MCC), and upon being declared effective by the SEC the registration statement shall cause the
shares to be freely tradable by the Rance Group at or prior to the closing of the Merger; and (c) . . . .
B. A new Paragraph 1 (d) is hereby included directly after the last sentence of 1 (c) as follows:
and; (d) the Parties hereto agree and direct MCC to cancel the Warrants to Purchase Shares of Common Stock of Xxxxxxx Communications Corporation (the “Prior Warrants”) for those persons designated as the Rance Group on Exhibit “F” attached hereto, and MCC shall issue new warrants (“New Warrants”) to those persons (the “Rance Group Warrant Holders”) which shall entitle the Rance Group Warrant Holders to purchase the identical number of shares under the New Warrants that each Rance Group Warrant Holder was entitled to purchase under the Prior Warrants; and those persons designated as the Incomex Group on Exhibit “F” shall have the option, pursuant to the language set forth in a letter to
3
each such person (the “Incomex Group Warrant Holders” and, collectively with the Rance Group Warrant Holders, the “Warrant Holders”) and pursuant to the terms of the New Warrant offered to those persons, to elect to exchange their Prior Warrants for New Warrants. In each instance under this paragraph 1 (d), the original Prior Warrant shall be provided to the Company prior to the issuance of the New Warrant. If any Warrant Holder cannot produce the original Prior Warrant, then the Prior Warrant shall be cancelled only after receipt by the Company of an executed lost certificate affidavit. The exchanging Warrant Holders waive any and all rights or claims under the Prior Warrants, and represent and warrant that each such Warrant Holder has good and valid title to such Warrant Holder’s Prior Warrants and that such Warrant Holder’s Prior Warrants have not been assigned, encumbered, or exercised. The New Warrants shall include, inter alia, the following provisions: (i) Two thirds (2/3) of the New Warrants shall include a customary cashless exercise provision, and one third (1/3) shall not include a cashless exercise provision; (ii) The purchase price per share of the stock represented by the New Warrant (the “Exercise Price”) shall be $.70 per share if there is Effective Registration for the Company’s shares prior to midnight, September 15, 2003. If Effective Registration is not completed prior to September 16, 2003, then the
4
Exercise Price shall be $.60 for all remaining unexercised New Warrants; (iii) The New Warrants may be exercised at any time after the date of issuance, and from time to time, but no later than 5:00 P.M., Denver, Colorado time, on September 15, 2005; and (iv) The New Warrants shall be assignable, in whole or in part, subject to the Restrictions on Transferability set forth in the New Warrant. A form of the cashless and non-cashless New Warrant for the Rance Group Warrant Holders and the Incomex Group Warrant Holders is attached hereto and incorporated herein respectively as Exhibit “G” and “H”.
C. A new Paragraph 1 (e) is hereby included as follows:
and; (e) The Company shall enter into a Registration Rights Agreement with the Rance Group for the 517,000 shares of the MCC Common Stock, which is attached hereto and incorporated herein as Exhibit “I”.
D. Under “11. Entire Agreement” on page 10 of the Agreement, the bold underlined language is hereby included:
. . . The Parties intend that the terms of this Settlement Agreement, as amended, shall be the final expression of their agreement with respect to the subject matter hereof and represents the culmination of all discussions and communications between and amongst the Parties and may not be contradicted by evidence of any prior or contemporaneous
5
agreement. No modification or amendment to this Settlement Agreement shall be valid or binding unless contained in a written instrument and signed by all of the Parties hereto.
2. The Parties agree that this Amendment complies with Paragraph 11 of the Agreement.
3. The Parties agree that the Agreement remains in full force and effect as to all other terms and conditions as contained therein, not expressly amended or extended herein.
[Signature Page Follows]
6
BY SIGNING BELOW EACH OF THE PARTIES HAS INDICATED THEIR AGREEMENT TO THIS FIRST AMENDMENT.
IN WITNESS WHEREOF, the Parties have executed this Amendment as of the day and year first set forth above.
THE XXXXXXX GROUP AND ITS ATTORNEYS
/s/ Xxxxx Xxxxxx
For Xxxxxxx Communications Corporation
By its Principal Accounting Officer, Xxxxx Xxxxxx
c/x XXXXXXX & XXXXXXXXXX, PLC
000 Xxxxxx Xxxxxx, XX
Xxxxx 000
Xxxxx Xxxxxx, XX 00000
/s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx, an Individual
Five Canoe Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000
PH: C/O: 319-363-8199
AS TO FORM AND CONTENT:
/s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx, Esq.
XXXXXXX & XXXXXXXXXX, P.L.C.
000 Xxxxxx Xxxxxx, XX
Xxxxx 000
Xxxxx Xxxxxx, XX 00000
PH: 319-363-8199
ATTORNEY FOR XXXXXXX COMMUNICATIONS CORPORATION AND XXXXXX X. XXXXX.
7
AS TO FORM AND CONTENT:
/s/ Xxxxxxx X. Xxxxxxxxxx
Xxxxxxx X. Xxxxxxxxxx, Esq.
XXXXXXX & XXXXXXXXXX, P.L.C.
000 Xxxxxx Xxxxxx, XX
Xxxxx 000
Xxxxx Xxxxxx, XX 00000
PH: 319-363-8199
ATTORNEY FOR XXXXXXX COMMUNICATIONS CORPORATION AND XXXXXX X. XXXXX.
/s/ Xxxxxx X. Xxxxxxx
For Xxxxxxx Xxxxxx & Company
By its President, Xxxxxx X. Xxxxxxx
000 Xxxx Xxxxxx, Xxxxxxxx X
P. O. Xxx 000
Xxxxxx, XX 00000-0000
PH: 319-447-5700
/s/ Xxxxxx X. Xxxxxxxxxx
Xxxxxx X. Xxxxxxxxxx, an Individual
c/o 000 Xxxx Xxxxxx, Xxxxxxxx X
P. O. Xxx 000
Xxxxxx, XX 00000-0000
PH: 319-447-5700
/s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, an Individual
c/o 000 Xxxx Xxxxxx, Xxxxxxxx X
P. O. Xxx 000
Xxxxxx, XX 00000-0000
PH: 319-447-5700
AS TO FORM AND CONTENT:
8
/s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, Esq.
SIMMONS, PERRINE, XXXXXXXX & ELLWOOD, P.L.C.
000 Xxxxx Xxxxxx, XX
Xxxxx 0000
Xxxxx Xxxxxx, XX 00000-0000
PH: 319-366-7641
ATTORNEY FOR XXXXXXX XXXXXX & COMPANY/XXXXXX X. XXXXXXX/XXXXXX X. XXXXXXXXXX.
AS TO FORM AND CONTENT:
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx, Esq.
SIMMONS, PERRINE, XXXXXXXX & ELLWOOD, P.L.C.
000 Xxxxx Xxxxxx, XX
Xxxxx 0000
Xxxxx Xxxxxx, XX 00000-0000
PH: 319-366-7641
ATTORNEY FOR XXXXXXX XXXXXX & COMPANY/XXXXXX X. XXXXXXX/XXXXXX X. XXXXXXXXXX.
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, an Individual
c/o FIEGEN LAW FIRM, P.C.
000 Xxxxxx Xxxxxx, XX
P. O. Xxx 0000
Xxxxx Xxxxxx, XX 00000-0000
PH: C/O: 000-000-0000
9
AS TO FORM AND CONTENT:
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, Esq.
XXXXXX LAW FIRM, P.C.
000 Xxxxxx Xxxxxx, XX
P. O. Xxx 0000
Xxxxx Xxxxxx, XX 00000-0000
PH: 319-362-6063
ATTORNEY FOR XXXXXX X. XXXXXX.
/s/ Xxx X. Xxxxxxx
Xxx X. Xxxxxxx, an Individual
0000 Xxxxx Xxxx. XX
Xxxxx Xxxxxx, XX 00000
PH: 319-721-0519
AS TO FORM:
/s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx, Esq.
Xxxxxxx Xxxxxxxx, Esq.
XXXXXX & XXXXXX
2400 IDS Center
00 Xxxxx 0xx Xxxxxx
Xxxxxxxxxxx, XX 00000
PH: 612-334-8445
ATTORNEYS FOR XXX X. XXXXXXX.
/s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, an Individual
0000 Xxxxxxxx Xx.
Xxxxxx, XX 00000
PH: 000-000-0000
10
THE RANCE GROUP AND ITS ATTORNEYS
/s/ Xxxx X. Xxxxx
Xxxx X. Xxxxx, an Individual
00000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx Xxxxx, XX 00000 PH: 714-942-8781
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, an Individual
2127 Glasgow
Cardiff By Xxx Xxx, XX 00000 PH: 000-000-0000
/s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx, an Individual
00000 XX Xxxxxxxx Xx.
Xxxxxxxx, XX 00000 PH: 503-245-5203
AS TO FORM AND CONTENT:
/s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx, Esq.
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000-0000
PH: 000-000-0000
ATTORNEY FOR RANCE GROUP- XXXX XXXXX, XXXXXX X. XXXXX, AND XXXXXX X. XXXXXX.
/s/ Xxxxxxxx Ficachi
Xxxxxxxx Ficachi, an Individual
Isla Xxxxxx
#0 Xxxx Xxxxxx, Xxxxxx, Xxxxxx, XX 00000. PH: 011-52-98-83-0631
11
