RELEASE
This Release (this "Release") is entered into by the undersigned officers
and directors of the Company (as defined herein) (the "Officers and Directors"),
effective as of the _____ day of _______________, 2004 in connection with the
Transaction contemplated by the terms and provisions of that certain Agreement
and Plan of Merger dated ______________, 2004 (the "Merger Agreement") among WS
Telecom, Inc., a Mississippi corporation (the "Company" and for the purposes of
this Agreement the Company shall include its wholly owned subsidiaries eXpeTel
Communications, Inc. and Gulf Coast Utilities, Inc.), XFone, Inc., a Nevada
corporation (the "Parent"), XFone USA, Inc., a Mississippi corporation (the
"Surviving Corporation") and Xxxx Xxxxxxx and Xxx Xxxxxxx.
WHEREAS, execution of this Release by each of the Officers and Directors
of the Company is a condition precedent to the Closing of the Merger
contemplated by the Agreement and Plan of Merger and as such is a material
inducement to the Parent and Surviving Corporation in order for them to enter
into the Merger; and
WHEREAS, the Parent and Surviving Corporation would not have closed the
Merger without the execution of this Release by each and everyone of the
undersigned Officers and Directors; and
WHEREAS, each Officer and Director has agreed to execute this Release.
NOW, THEREFORE, as additional consideration for the Merger and the
covenants, representations, agreements and undertakings contained herein and
other good and valuable consideration, the receipt and sufficiency of all of
which is hereby acknowledged and intending to be legally bound, the undersigned
parties do hereby severally agree as follows:
1. Recitals. Each of the above referenced recitals is true and correct and
incorporated into this Release by this reference.
2. Merger Agreement. Each of the undersigned hereby acknowledges receipt of a
copy of the Merger Agreement and any amendments thereto. In the event of a
conflict between the terms of this Release and the terms of the Merger
Agreement, the terms and provisions of this Release shall govern. All
capitalized terms which are not otherwise defined in this Release shall
have the respective meaning ascribed to such terms in the Merger
Agreement.
3. Release by Each Officer and Director. Each Officer and Director hereby
severally releases and forever discharges the Company, the Parent and the
Surviving Corporation and each of their respective officers, directors,
partners, shareholders, members, employees and their successors and
assigns (collectively, " Releasees") of and from any and all claims,
causes or rights of action, demands and damages of every kind and nature
which such Officer or Director may now have, whether known or unknown,
anticipated or unanticipated and whether accrued or hereafter to accrue,
against Releasees, caused by or arising out of or in
any way related to the following: (i) the business, affairs, actions or
omissions of the Company and/or the Officers or Directors or any other
employee or independent contractor of the Company through the date of
Closing under the Merger Agreement; (ii) such Officer's or Director's
direct or beneficial ownership or interests in the Company, if any; (iii)
such Officer's or Director's status as an Officer or Director or
shareholder of the Company; (iv) any action or omission by any of the
Officers or Directors of the Company, or any other employees or
independent contractors of the Company through the date of Closing under
the Merger Agreement; (v) any claims of such Officer or Director arising
out of or relating in any manner to any prior business relationship or
service of or with respect to the Company through the date of Closing
under the Merger Agreement, and (vi) any and all agreements, events or
occurrences by, between or among any Officer or Director and/or the
Company prior to Closing or relating in any manner to this Merger,
including, without limitation, any tax analysis with respect to the
transactions contemplated by the Merger Agreement or otherwise, or
calculation for the distribution of the Aggregate Merger Consideration
under the Merger Agreement.
4. Compromise. Each Officer and Director agrees that this settlement is a
compromise of doubtful and disputed claims through the date of Closing
under the Merger Agreement, and that the agreement to pay the
consideration recited herein is not to be construed as an admission of any
liability whatsoever by Releasees and that Releasees expressly deny any
such liability.
5. Scope of Release. Each Officer and Director agrees that the consideration
for this release was paid to secure full, complete, and final discharge of
Releasees from any and all claims, demands, actions, or causes of action
that any of the undersigned Officers or Directors of the Company may have
against the Releasees as of the date hereof with respect to matters hereby
released as set forth in paragraph 3 hereof, and each of the Officers or
Directors of the Company hereby agree that such claims, demands, actions,
or causes of action are wholly and forever satisfied and extinguished.
6. Covenant Not to Xxx. Each Officer and Director will forever refrain and
desist from instituting, prosecuting, or asserting against Releasees, or
any of them, any further claim, demand, action, cause of action or suit of
any kind or nature, either directly or indirectly, on account of matters
hereby releases as set forth in paragraph 3 hereof.
7. No Prior Assignment. Each Officer and Director specifically acknowledges,
covenants, represents and warrants that there has been no assignment of
any right or claim released hereby and that each Officer and Director
will, severally, as with respect to actions by any such Officer and
Director defend and hold harmless Releasees with respect to any matters
hereby released.
8. Authority. Each Officer and Director represents and warrants that each are
fully competent and authorized to execute this Release, and that upon
execution this Release will be valid and
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binding upon each of them. Each Officer and Director represent and warrant
that the undersigned constitute all of the Directors and Officers of the
Company. Releasees represent and warrant that they are fully competent and
authorized to execute this Release, and that upon execution this Release
will be valid and binding upon each of them.
9. Acknowledgment. Each Officer and Director represents and warrants that the
terms of this Release have been read, voluntarily accepted, understood by
each such Officer and Director or explained to each such Officer and
Director by its attorney(s), and agreed to and approved by its
attorney(s). Each Officer and Director further represents and warrants
that it has relied upon its own judgment, knowledge and belief as to the
nature and extent of any damages which may have been suffered or
sustained, or may be sustained in the future, with regard to the items
released hereby under paragraph 3 hereof.
10. Entire Agreement. This Release constitutes the entire agreement between
the parties with respect to the releases contemplated hereby. All prior to
or contemporaneous agreements, understandings, representations, warranties
and statements, oral or written are hereby superceded. Any alterations or
additions shall be effective only if reduced to writing, dated and signed
by the party against whom the enforcement thereof is or may be sought.
11. Waiver. No waiver of a breach of any of the terms, covenants or conditions
of this Release by any party shall be construed or held to be a waiver of
any succeeding or preceding breach of the same or any other term, covenant
or condition herein contained. No waiver of any default by any party
hereunder shall be implied from any omissions by either party to take any
action on account of such default. If such default persists or is
repeated, and no express waiver shall affect a default other than as
specified in such waiver.
12. Severability. If any term, provision, covenant or condition of this
Release is held to be invalid, void or otherwise unenforceable to any
extent by any court of competent jurisdiction, the remainder of this
Release shall not be affected thereby, and each term, provision, covenant
or condition of this Release shall be valid and enforceable to the fullest
extent permitted by law.
13. Successors. Subject to the restriction on assignment provided herein, all
terms of this Release shall be binding upon, inure to the benefit of, and
be enforceable by the parties hereto and their respective heirs, legal
representatives, successors and assigns.
14. Assignment. No party hereto shall assign their respective rights,
obligations or interest under this Release in any manner.
15. Headings. The captions and paragraph headings used in this Release are
inserted for convenience of reference only and are not intended to define,
limit or affect the interpretation or construction of any term or
provision hereof.
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16. Counterparts. This Release may be executed in multiple copies, each of
which shall be deemed an original, but all of which shall constitute one
Agreement binding on all parties.
17. Facsimile Signatures. In order to expedite the Merger contemplated herein,
telecopied signatures may be used in place of original signatures on this
Release. All parties hereto intend to be bound by the signatures on the
telecopied document, are aware that other parties will rely on the
telecopied signatures, and hereby waive any and all defenses to the
enforcement of the terms of this Release based on the form of signature.
18. Governing Law. This Release shall be governed, construed and enforced in
accordance with the laws of the State of Mississippi.
19. Effective Date. The terms and provisions of this Release shall be
effective upon Closing of the Transaction contemplated by the Merger
Agreement.
IN WITNESS WHEREOF, each Officer and Director set forth below has executed
this Release as of the Effective Date.
DIRECTORS: OFFICERS:
___________________________________ ________________________________________
Xxxx Xxxxxxx Xxxx Xxxxxxx, President and CEO
___________________________________ ________________________________________
Xxx Xxxxxxx Xxx Xxxxxxx, Executive Vice President
and Chief Marketing Officer
___________________________________ ________________________________________
Xxxx Xxxx, Secretary/Treasurer
________________________________________
Xxx Xxxxxx, Vice President,
Internal Operations
________________________________________
Xxxx Xxxxxx, Director-Network Facilities
________________________________________
Xxxx Xxxxx, Director-Information
Technologies
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