EXHIBIT 10.20
SETTLEMENT AGREEMENTS AND PROPOSED SETTLEMENT AGREEMENTS
WITH PRIOR NOTEHOLDERS
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT (the "Agreement") is entered into this 14th day
of February, 1996 by and between Arthur Caplan, an individual ("AC"), and
Incomnet, Inc., a California corporation ("Incomnet") with respect to the
following facts.
R E C I T A L S
A. AC holds 10,000 shares (the "Shares") of the common stock of Incomnet
which he received upon the conversion of a $100,000 convertible note
(the "Note") issued by Incomnet in February 1995. AC converted the
Note and received the Shares in July 1995.
B. Pursuant to the terms of the Note, AC had certain registration rights
with respect to the Shares.
C. Incomnet did not register the Shares in 1995 in accordance with the
terms of the Note.
NOW THEREFORE, for good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged by the parties, the parties
hereby agree as follows:
1. CONSIDERATION TO AC
In consideration for AC's covenants in Sections 3 and 4 of this
Agreement, Incomnet agrees to issue to AC, upon the effective date of the
registration statement referred to in Section 2 of this Agreement, a
sufficient number of additional registered shares of Incomnet common stock,
if required, so that upon said date AC has a total number of registered
shares of Incomnet common stock, including the Shares, having an aggregate
value of $120,000 based on the average of the last sale price of Incomnet's
stock quoted on the NASDAQ during the five trading days immediately preceding
the effective date of the registration statement (the "Average Price");
provided, however, that any such adjustment would be subject to appropriate
further adjustment in order to take into account any stock splits, stock
dividends, spin-offs, reverse stock splits and similar recapitalization or
reorganization transactions by Incomnet or its subsidiaries. Accordingly, if
the Average Price is less than $12 per share, AC will be issued additional
registered shares of Incomnet common stock, based on the above described
formula, and if the Average Price is $12 or more, AC will not be issued
additional shares. If additional shares are to be issued, Incomnet will
deliver irrevocable instructions to its transfer agent for the issuance of
the appropriate number of additional shares on the effective date of the
registration statement. Notwithstanding anything else herein to the contrary,
in the event AC's shares in Incomnet become valueless because Incomnet
ceases to conduct business or for other reasons prior to the effective date
of the registration statement referred to in Section 2 of this Agreement,
then Incomnet will arrange to convey to AC $120,000 worth of the common stock
of Rapid Cast, Inc.
2. COVENANTS OF THE COMPANY
Incomnet covenants to file a registration statement on Form S-3 with
the Securities and Exchange Commission within 90 days after the date this
Agreement is executed by both parties hereto covering the Shares, with
sufficient additional shares to cover any adjustments referred to in Section
1 of this Agreement, and to use its reasonable efforts to have the
registration statement declared effective by the Securities and Exchange
Commission as soon as practicable after it is filed. In the event the above
referenced registration statement is not declared effective by the Securities
and Exchange Commission by October 31, 1996, then Incomnet will pay AC
$125,000 in cash and AC will tender his Shares to Incomnet for redemption.
3. COVENANTS OF AC
AC agrees to fully cooperate with Incomnet in the preparation of the
registration statement referred to in Section 2 of this Agreement.
4. GENERAL RELEASE
Effective on the date of the execution of this Agreement by both
parties hereto, AC hereby fully and forever releases and discharges Incomnet
and any of its past, present and future affiliates, partners, attorneys,
accountants, officers, directors, shareholders, employees, successors and
predecessors, including but not limited to Sam Schwartz, from any and all
claims, demands, obligations, losses, damages, or causes of action of any
nature, whether known or unknown, whether based in tort, contract or any
other theory of recovery, and whether for compensatory, consequential or
punitive damages, that now exist or may hereafter accrue based on actions
occurring prior to the effective date of this release, with respect to any
claims or causes of action which AC has or may have against Incomnet or Sam
Schwartz. The undersigned agree that this release shall not be considered
admissions by any party of any liability. The undersigned warrant that no
promise or inducement has been offered except as herein set forth. The
undersigned are of legal age and legally competent to execute this release
and accept full responsibility therefor. The undersigned 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 undersigned declare that the terms of this full and final release of
all claims 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. AC represents and warrants that it has not
assigned any of its above referenced released claims to any third party.
-2-
5. INJUNCTIVE RELIEF
5.1 DAMAGES INADEQUATE
Each party acknowledges that it would be impossible to measure in money
the damages to the other party if there is a failure to comply with any
covenants and provisions of this Agreement, and agrees that in the event of
any breach of any covenant or provision, the other party to this Agreement
will not have an adequate remedy at law.
5.2 INJUNCTIVE RELIEF
It is therefore agreed that the other party to this Agreement who is
entitled to the benefit of the covenants and provisions of this Agreement
which have been breached, in addition to any other rights or remedies which
they may have, shall be entitled to immediate injunctive relief to enforce
such covenants and provisions, and that in the event that any such action or
proceeding is brought in equity to enforce them, the defaulting or breaching
party will not urge a defense that there is an adequate remedy at law.
6. 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.
7. 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.
8. ENTIRE AND SOLE AGREEMENT
This Agreement constitutes the entire agreement between the parties and
supersedes all other 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.
9. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of the State of California.
-3-
10. 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.
IN WITNESS WHEREOF, this Agreement has been entered into as of the date
first above written.
INCOMNET: INCOMNET, INC.
By: ___________________________________
Melvyn Reznick, President
Date: _________________________________
AC: ___________________________________
Arthur Caplan
Date: _________________________________
-4-
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT (the "Agreement") is entered into this 20th day
of February, 1996 by and between Rita Folger, an individual ("Shareholder"),
and Incomnet, Inc., a California corporation ("Incomnet") with respect to the
following facts.
R E C I T A L S
A. Shareholder holds 5,000 shares (the "Shares") of the common stock of
Incomnet which he received upon the conversion of a $50,000 convertible
note (the "Note") issued by Incomnet in February 1995. Shareholder
converted the Note and received the Shares in July 1995.
B. Pursuant to the terms of the Note, Shareholder had certain registration
rights with respect to the Shares.
C. Incomnet did not register the Shares in 1995 in accordance with the
terms of the Note.
NOW THEREFORE, for good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged by the parties, the parties
hereby agree as follows:
1. CONSIDERATION TO SHAREHOLDER
In consideration for Shareholder's covenants in Sections 3 and 4 of
this Agreement, Incomnet agrees to issue to Shareholder, upon the effective
date of the registration statement referred to in Section 2 of this
Agreement, a sufficient number of additional registered shares of Incomnet
common stock, if required, so that upon said date Shareholder has a total
number of registered shares of Incomnet common stock, including the Shares,
having an aggregate value of $60,000 based on the average of the last sale
price of Incomnet's stock quoted on the NASDAQ during the five trading days
immediately preceding the effective date of the registration statement (the
"Average Price"); provided, however, that any such adjustment would be
subject to appropriate further adjustment in order to take into account any
stock splits, stock dividends, spin-offs, reverse stock splits and similar
recapitalization or reorganization transactions by Incomnet or its
subsidiaries. Accordingly, if the Average Price is less than $12 per share,
Shareholder will be issued additional registered shares of Incomnet common
stock, based on the above described formula, and if the Average Price is $12
or more, Shareholder will be not be issued additional shares. If additional
shares are to be issued, Incomnet will deliver irrevocable instructions to
its transfer agent for the issuance of the appropriate number of additional
shares on the effective date of the registration statement.
2. COVENANTS OF THE COMPANY
Incomnet covenants to file a registration statement on Form S-3 with
the Securities and Exchange Commission within 90 days after the date this
Agreement is executed by both parties hereto covering the Shares, with
sufficient additional shares to cover any adjustments referred to in Section
1 of this Agreement, and to use its reasonable efforts to have the
registration statement declared effective by the Securities and Exchange
Commission as soon as practicable after it is filed.
3. COVENANTS OF SHAREHOLDER
Shareholder agrees to fully cooperate with Incomnet in the preparation
of the registration statement referred to in Section 2 of this Agreement.
4. GENERAL RELEASE
Effective on the date of the execution of this Agreement by both
parties hereto, Shareholder hereby fully and forever releases and discharges
Incomnet and any of its past, present and future affiliates, partners,
attorneys, accountants, officers, directors, shareholders, employees,
successors and predecessors, including but not limited to Sam Schwartz, from
any and all claims, demands, obligations, losses, damages, or causes of
action of any nature, whether known or unknown, whether based in tort,
contract or any other theory of recovery, and whether for compensatory,
consequential or punitive damages, that now exist or may hereafter accrue
based on actions occurring prior to the effective date of this release, with
respect to any claims or causes of action which Shareholder has or may have
against Incomnet or Sam Schwartz. The undersigned agree that this release
shall not be considered admissions by any party of any liability. The
undersigned warrant that no promise or inducement has been offered except as
herein set forth. The undersigned are of legal age and legally competent to
execute this release and accept full responsibility therefor. The
undersigned 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 undersigned declare that the terms of this full and final release of
all claims 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. Shareholder represents and warrants that it
has not assigned any of its above referenced claims to any third party.
-2-
5. INJUNCTIVE RELIEF
5.1 DAMAGES INADEQUATE
Each party acknowledges that it would be impossible to measure in money
the damages to the other party if there is a failure to comply with any
covenants and provisions of this Agreement, and agrees that in the event of
any breach of any covenant or provision, the other party to this Agreement
will not have an adequate remedy at law.
5.2 INJUNCTIVE RELIEF
It is therefore agreed that the other party to this Agreement who is
entitled to the benefit of the covenants and provisions of this Agreement
which have been breached, in addition to any other rights or remedies which
they may have, shall be entitled to immediate injunctive relief to enforce
such covenants and provisions, and that in the event that any such action or
proceeding is brought in equity to enforce them, the defaulting or breaching
party will not urge a defense that there is an adequate remedy at law.
6. 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.
7. 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.
8. ENTIRE AND SOLE AGREEMENT
This Agreement constitutes the entire agreement between the parties and
supersedes all other 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.
9. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of the State of California.
-3-
10. 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.
IN WITNESS WHEREOF, this Agreement has been entered into as of the date
first above written.
INCOMNET: INCOMNET, INC.
By: ___________________________________
Melvyn Reznick, President
Date: _________________________________
SHAREHOLDER: ___________________________________
Rita Folger
Date: _________________________________
-4-
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT (the "Agreement") is entered into this 20th day
of February, 1996 by and between Richard C. Jaffe, an individual
("Shareholder"), and Incomnet, Inc., a California corporation ("Incomnet")
with respect to the following facts.
R E C I T A L S
A. Shareholder holds 5,000 shares (the "Shares") of the common stock of
Incomnet which he received upon the conversion of a $50,000 convertible
note (the "Note") issued by Incomnet in February 1995. Shareholder
converted the Note and received the Shares in July 1995.
B. Pursuant to the terms of the Note, Shareholder had certain registration
rights with respect to the Shares.
C. Incomnet did not register the Shares in 1995 in accordance with the
terms of the Note.
NOW THEREFORE, for good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged by the parties, the parties
hereby agree as follows:
1. CONSIDERATION TO SHAREHOLDER
In consideration for Shareholder's covenants in Sections 3 and 4 of
this Agreement, Incomnet agrees to issue to Shareholder, upon the effective
date of the registration statement referred to in Section 2 of this
Agreement, a sufficient number of additional registered shares of Incomnet
common stock, if required, so that upon said date Shareholder has a total
number of registered shares of Incomnet common stock, including the Shares,
having an aggregate value of $60,000 based on the average of the last sale
price of Incomnet's stock quoted on the NASDAQ during the five trading days
immediately preceding the effective date of the registration statement (the
"Average Price"); provided, however, that any such adjustment would be
subject to appropriate further adjustment in order to take into account any
stock splits, stock dividends, spin-offs, reverse stock splits and similar
recapitalization or reorganization transactions by Incomnet or its
subsidiaries. Accordingly, if the Average Price is less than $12 per share,
Shareholder will be issued additional registered shares of Incomnet common
stock, based on the above described formula, and if the Average Price is $12
or more, Shareholder will be not be issued additional shares. If additional
shares are to be issued, Incomnet will deliver irrevocable instructions to
its transfer agent for the issuance of the appropriate number of additional
shares on the effective date of the registration statement.
2. COVENANTS OF THE COMPANY
Incomnet covenants to file a registration statement on Form S-3 with
the Securities and Exchange Commission within 90 days after the date this
Agreement is executed by both parties hereto covering the Shares, with
sufficient additional shares to cover any adjustments referred to in Section
1 of this Agreement, and to use its reasonable efforts to have the
registration statement declared effective by the Securities and Exchange
Commission as soon as practicable after it is filed.
3. COVENANTS OF SHAREHOLDER
Shareholder agrees to fully cooperate with Incomnet in the preparation
of the registration statement referred to in Section 2 of this Agreement.
4. GENERAL RELEASE
Effective on the date of the execution of this Agreement by both
parties hereto, Shareholder hereby fully and forever releases and discharges
Incomnet and any of its past, present and future affiliates, partners,
attorneys, accountants, officers, directors, shareholders, employees,
successors and predecessors, including but not limited to Sam Schwartz, from
any and all claims, demands, obligations, losses, damages, or causes of
action of any nature, whether known or unknown, whether based in tort,
contract or any other theory of recovery, and whether for compensatory,
consequential or punitive damages, that now exist or may hereafter accrue
based on actions occurring prior to the effective date of this release, with
respect to any claims or causes of action which Shareholder has or may have
against Incomnet or Sam Schwartz. The undersigned agree that this release
shall not be considered admissions by any party of any liability. The
undersigned warrant that no promise or inducement has been offered except as
herein set forth. The undersigned are of legal age and legally competent to
execute this release and accept full responsibility therefor. The
undersigned 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 undersigned declare that the terms of this full and final release of
all claims 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. Shareholder represents and warrants that it
has not assigned any of its above referenced released claims to any third party.
-2-
5. INJUNCTIVE RELIEF
5.1 DAMAGES INADEQUATE
Each party acknowledges that it would be impossible to measure in money
the damages to the other party if there is a failure to comply with any
covenants and provisions of this Agreement, and agrees that in the event of
any breach of any covenant or provision, the other party to this Agreement
will not have an adequate remedy at law.
5.2 INJUNCTIVE RELIEF
It is therefore agreed that the other party to this Agreement who is
entitled to the benefit of the covenants and provisions of this Agreement
which have been breached, in addition to any other rights or remedies which
they may have, shall be entitled to immediate injunctive relief to enforce
such covenants and provisions, and that in the event that any such action or
proceeding is brought in equity to enforce them, the defaulting or breaching
party will not urge a defense that there is an adequate remedy at law.
6. 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.
7. 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.
8. ENTIRE AND SOLE AGREEMENT
This Agreement constitutes the entire agreement between the parties and
supersedes all other 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.
9. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of the State of California.
-3-
10. 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.
IN WITNESS WHEREOF, this Agreement has been entered into as of the date
first above written.
INCOMNET: INCOMNET, INC.
By: ___________________________________
Melvyn Reznick, President
Date: _________________________________
SHAREHOLDER: ___________________________________
Richard C. Jaffe
Date: _________________________________
-4-
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT (the "Agreement") is entered into this 20th day
of February, 1996 by and between Lenore Katz, an individual ("Shareholder"),
and Incomnet, Inc., a California corporation ("Incomnet") with respect to the
following facts.
R E C I T A L S
A. Shareholder holds 2,500 shares (the "Shares") of the common stock of
Incomnet which he received upon the conversion of a $25,000 convertible
note (the "Note") issued by Incomnet in February 1995. Shareholder
converted the Note and received the Shares in July 1995.
B. Pursuant to the terms of the Note, Shareholder had certain registration
rights with respect to the Shares.
C. Incomnet did not register the Shares in 1995 in accordance with the
terms of the Note.
NOW THEREFORE, for good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged by the parties, the parties
hereby agree as follows:
1. CONSIDERATION TO SHAREHOLDER
In consideration for Shareholder's covenants in Sections 3 and 4 of
this Agreement, Incomnet agrees to issue to Shareholder, upon the effective
date of the registration statement referred to in Section 2 of this
Agreement, a sufficient number of additional registered shares of Incomnet
common stock, if required, so that upon said date Shareholder has a total
number of registered shares of Incomnet common stock, including the Shares,
having an aggregate value of $30,000 based on the average of the last sale
price of Incomnet's stock quoted on the NASDAQ during the five trading days
immediately preceding the effective date of the registration statement (the
"Average Price"); provided, however, that any such adjustment would be
subject to appropriate further adjustment in order to take into account any
stock splits, stock dividends, spin-offs, reverse stock splits and similar
recapitalization or reorganization transactions by Incomnet or its
subsidiaries. Accordingly, if the Average Price is less than $12 per share,
Shareholder will be issued additional registered shares of Incomnet common
stock, based on the above described formula, and if the Average Price is $12
or more, Shareholder will not be issued additional shares. If additional
shares are to be issued, Incomnet will deliver irrevocable instructions to
its transfer agent for the issuance of the appropriate number of additional
shares on the effective date of the registration statement.
2. COVENANTS OF THE COMPANY
Incomnet covenants to file a registration statement on Form S-3 with
the Securities and Exchange Commission within 90 days after the date this
Agreement is executed by both parties hereto covering the Shares, with
sufficient additional shares to cover any adjustments referred to in Section
1 of this Agreement, and to use its reasonable efforts to have the
registration statement declared effective by the Securities and Exchange
Commission as soon as practicable after it is filed.
3. COVENANTS OF SHAREHOLDER
Shareholder agrees to fully cooperate with Incomnet in the preparation
of the registration statement referred to in Section 2 of this Agreement.
4. GENERAL RELEASE
Effective on the date of the execution of this Agreement by both
parties hereto, Shareholder hereby fully and forever releases and discharges
Incomnet and any of its past, present and future affiliates, partners,
attorneys, accountants, officers, directors, shareholders, employees,
successors and predecessors, including but not limited to Sam Schwartz, from
any and all claims, demands, obligations, losses, damages, or causes of
action of any nature, whether known or unknown, whether based in tort,
contract or any other theory of recovery, and whether for compensatory,
consequential or punitive damages, that now exist or may hereafter accrue
based on actions occurring prior to the effective date of this release, with
respect to any claims or causes of action which Shareholder has or may have
against Incomnet or Sam Schwartz. The undersigned agree that this release
shall not be considered admissions by any party of any liability. The
undersigned warrant that no promise or inducement has been offered except as
herein set forth. The undersigned are of legal age and legally competent to
execute this release and accept full responsibility therefor. The
undersigned 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 undersigned declare that the terms of this full and final release of
all claims 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. Shareholder represents and warrants that it
has not assigned any of its above referenced released claims to any third party.
-2-
5. INJUNCTIVE RELIEF
5.1 DAMAGES INADEQUATE
Each party acknowledges that it would be impossible to measure in money
the damages to the other party if there is a failure to comply with any
covenants and provisions of this Agreement, and agrees that in the event of
any breach of any covenant or provision, the other party to this Agreement
will not have an adequate remedy at law.
5.2 INJUNCTIVE RELIEF
It is therefore agreed that the other party to this Agreement who is
entitled to the benefit of the covenants and provisions of this Agreement
which have been breached, in addition to any other rights or remedies which
they may have, shall be entitled to immediate injunctive relief to enforce
such covenants and provisions, and that in the event that any such action or
proceeding is brought in equity to enforce them, the defaulting or breaching
party will not urge a defense that there is an adequate remedy at law.
6. 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.
7. 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.
8. ENTIRE AND SOLE AGREEMENT
This Agreement constitutes the entire agreement between the parties and
supersedes all other 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.
9. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of the State of California.
-3-
10. 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.
IN WITNESS WHEREOF, this Agreement has been entered into as of the date
first above written.
INCOMNET: INCOMNET, INC.
By: ___________________________________
Melvyn Reznick, President
Date: _________________________________
SHAREHOLDER: ___________________________________
Lenore Katz
Date: _________________________________
-4-
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT (the "Agreement") is entered into this 20th day
of February, 1996 by and between Kenneth Lebow, an individual, as the
beneficiary of the Kenneth Lebow IRA R-O ("Shareholder"), and Incomnet, Inc.,
a California corporation ("Incomnet") with respect to the following facts.
R E C I T A L S
A. Shareholder holds 7,500 shares (the "Shares") of the common stock of
Incomnet which he received upon the conversion of a $75,000 convertible
note (the "Note") issued by Incomnet in February 1995. Shareholder
converted the Note and received the Shares in July 1995.
B. Pursuant to the terms of the Note, Shareholder had certain registration
rights with respect to the Shares.
C. Incomnet did not register the Shares in 1995 in accordance with the
terms of the Note.
NOW THEREFORE, for good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged by the parties, the parties
hereby agree as follows:
1. CONSIDERATION TO SHAREHOLDER
In consideration for Shareholder's covenants in Sections 3 and 4 of
this Agreement, Incomnet agrees to issue to Shareholder, upon the effective
date of the registration statement referred to in Section 2 of this
Agreement, a sufficient number of additional registered shares of Incomnet
common stock, if required, so that upon said date Shareholder has a total
number of registered shares of Incomnet common stock, including the Shares,
having an aggregate value of $90,000 based on the average of the last sale
price of Incomnet's stock quoted on the NASDAQ during the five trading days
immediately preceding the effective date of the registration statement (the
"Average Price"); provided, however, that any such adjustment would be
subject to appropriate further adjustment in order to take into account any
stock splits, stock dividends, spin-offs, reverse stock splits and similar
recapitalization or reorganization transactions by Incomnet or its
subsidiaries. Accordingly, if the Average Price is less than $12 per share,
Shareholder will be issued additional registered shares of Incomnet common
stock, based on the above described formula, and if the Average Price is $12
or more, Shareholder will not be issued additional shares. If additional
shares are to be issued, Incomnet will deliver irrevocable instructions to
its transfer agent for the issuance of the appropriate number of additional
shares on the effective date of the registration statement.
2. COVENANTS OF THE COMPANY
Incomnet covenants to file a registration statement on Form S-3 with
the Securities and Exchange Commission within 90 days after the date this
Agreement is executed by both parties hereto covering the Shares, with
sufficient additional shares to cover any adjustments referred to in Section
1 of this Agreement, and to use its reasonable efforts to have the
registration statement declared effective by the Securities and Exchange
Commission as soon as practicable after it is filed.
3. COVENANTS OF SHAREHOLDER
Shareholder agrees to fully cooperate with Incomnet in the preparation
of the registration statement referred to in Section 2 of this Agreement.
4. GENERAL RELEASE
Effective on the date of the execution of this Agreement by both
parties hereto, Shareholder hereby fully and forever releases and discharges
Incomnet and any of its past, present and future affiliates, partners,
attorneys, accountants, officers, directors, shareholders, employees,
successors and predecessors, including but not limited to Sam Schwartz, from
any and all claims, demands, obligations, losses, damages, or causes of
action of any nature, whether known or unknown, whether based in tort,
contract or any other theory of recovery, and whether for compensatory,
consequential or punitive damages, that now exist or may hereafter accrue
based on actions occurring prior to the effective date of this release, with
respect to any claims or causes of action which Shareholder has or may have
against Incomnet or Sam Schwartz. The undersigned agree that this release
shall not be considered admissions by any party of any liability. The
undersigned warrant that no promise or inducement has been offered except as
herein set forth. The undersigned are of legal age and legally competent to
execute this release and accept full responsibility therefor. The
undersigned 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 undersigned declare that the terms of this full and final release of
all claims 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. Shareholder represents and warrants that it
has not assigned any of its above referenced released claims to any third party.
-2-
5. INJUNCTIVE RELIEF
5.1 DAMAGES INADEQUATE
Each party acknowledges that it would be impossible to measure in money
the damages to the other party if there is a failure to comply with any
covenants and provisions of this Agreement, and agrees that in the event of
any breach of any covenant or provision, the other party to this Agreement
will not have an adequate remedy at law.
5.2 INJUNCTIVE RELIEF
It is therefore agreed that the other party to this Agreement who is
entitled to the benefit of the covenants and provisions of this Agreement
which have been breached, in addition to any other rights or remedies which
they may have, shall be entitled to immediate injunctive relief to enforce
such covenants and provisions, and that in the event that any such action or
proceeding is brought in equity to enforce them, the defaulting or breaching
party will not urge a defense that there is an adequate remedy at law.
6. 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.
7. 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.
8. ENTIRE AND SOLE AGREEMENT
This Agreement constitutes the entire agreement between the parties and
supersedes all other 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.
9. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of the State of California.
-3-
10. 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.
IN WITNESS WHEREOF, this Agreement has been entered into as of the date
first above written.
INCOMNET: INCOMNET, INC.
By: ___________________________________
Melvyn Reznick, President
Date: _________________________________
SHAREHOLDER: ___________________________________
Kenneth Lebow, as beneficiary
of the Kenneth Lebow IRA R-O
Date: _________________________________
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SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT (the "Agreement") is entered into this 20th day
of February, 1996 by and between Moshe Miller, an individual ("Shareholder"),
and Incomnet, Inc., a California corporation ("Incomnet") with respect to the
following facts.
R E C I T A L S
A. Shareholder holds 2,500 shares (the "Shares") of the common stock of
Incomnet which he received upon the conversion of a $25,000 convertible
note (the "Note") issued by Incomnet in February 1995. Shareholder
converted the Note and received the Shares in July 1995.
B. Pursuant to the terms of the Note, Shareholder had certain registration
rights with respect to the Shares.
C. Incomnet did not register the Shares in 1995 in accordance with the
terms of the Note.
NOW THEREFORE, for good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged by the parties, the parties
hereby agree as follows:
1. CONSIDERATION TO SHAREHOLDER
In consideration for Shareholder's covenants in Sections 3 and 4 of
this Agreement, Incomnet agrees to issue to Shareholder, upon the effective
date of the registration statement referred to in Section 2 of this
Agreement, a sufficient number of additional registered shares of Incomnet
common stock, if required, so that upon said date Shareholder has a total
number of registered shares of Incomnet common stock, including the Shares,
having an aggregate value of $30,000 based on the average of the last sale
price of Incomnet's stock quoted on the NASDAQ during the five trading days
immediately preceding the effective date of the registration statement (the
"Average Price"); provided, however, that any such adjustment would be
subject to appropriate further adjustment in order to take into account any
stock splits, stock dividends, spin-offs, reverse stock splits and similar
recapitalization or reorganization transactions by Incomnet or its
subsidiaries. Accordingly, if the Average Price is less than $12 per share,
Shareholder will be issued additional registered shares of Incomnet common
stock, based on the above described formula, and if the Average Price is $12
or more, Shareholder will not be issued additional shares. If additional
shares are to be issued, Incomnet will deliver irrevocable instructions to
its transfer agent for the issuance of the appropriate number of additional
shares on the effective date of the registration statement.
2. COVENANTS OF THE COMPANY
Incomnet covenants to file a registration statement on Form S-3 with
the Securities and Exchange Commission within 90 days after the date this
Agreement is executed by both parties hereto covering the Shares, with
sufficient additional shares to cover any adjustments referred to in Section
1 of this Agreement, and to use its reasonable efforts to have the
registration statement declared effective by the Securities and Exchange
Commission as soon as practicable after it is filed.
3. COVENANTS OF SHAREHOLDER
Shareholder agrees to fully cooperate with Incomnet in the preparation
of the registration statement referred to in Section 2 of this Agreement.
4. GENERAL RELEASE
Effective on the date of the execution of this Agreement by both
parties hereto, Shareholder hereby fully and forever releases and discharges
Incomnet and any of its past, present and future affiliates, partners,
attorneys, accountants, officers, directors, shareholders, employees,
successors and predecessors, including but not limited to Sam Schwartz, from
any and all claims, demands, obligations, losses, damages, or causes of
action of any nature, whether known or unknown, whether based in tort,
contract or any other theory of recovery, and whether for compensatory,
consequential or punitive damages, that now exist or may hereafter accrue
based on actions occurring prior to the effective date of this release, with
respect to any claims or causes of action which Shareholder has or may have
against Incomnet or Sam Schwartz. The undersigned agree that this release
shall not be considered admissions by any party of any liability. The
undersigned warrant that no promise or inducement has been offered except as
herein set forth. The undersigned are of legal age and legally competent to
execute this release and accept full responsibility therefor. The
undersigned 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 undersigned declare that the terms of this full and final release of
all claims 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. Shareholder represents and warrants that it
has not assigned any of its above referenced released claims to any third party.
-2-
5. INJUNCTIVE RELIEF
5.1 DAMAGES INADEQUATE
Each party acknowledges that it would be impossible to measure in money
the damages to the other party if there is a failure to comply with any
covenants and provisions of this Agreement, and agrees that in the event of
any breach of any covenant or provision, the other party to this Agreement
will not have an adequate remedy at law.
5.2 INJUNCTIVE RELIEF
It is therefore agreed that the other party to this Agreement who is
entitled to the benefit of the covenants and provisions of this Agreement
which have been breached, in addition to any other rights or remedies which
they may have, shall be entitled to immediate injunctive relief to enforce
such covenants and provisions, and that in the event that any such action or
proceeding is brought in equity to enforce them, the defaulting or breaching
party will not urge a defense that there is an adequate remedy at law.
6. 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.
7. 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.
8. ENTIRE AND SOLE AGREEMENT
This Agreement constitutes the entire agreement between the parties and
supersedes all other 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.
9. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of the State of California.
-3-
10. 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.
IN WITNESS WHEREOF, this Agreement has been entered into as of the date
first above written.
INCOMNET: INCOMNET, INC.
By: ___________________________________
Melvyn Reznick, President
Date: _________________________________
SHAREHOLDER: ___________________________________
Moshe Mueller
Date: _________________________________
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_______________________________________
JULES NORDLICHT, :
PLAINTIFF, :
: CV 95 5134
-VS-
:
INCOMNET, INC. AND : STIPULATION OF SETTLEMENT
SAM D. SCHWARTZ,
:
DEFENDANTS.
_______________________________________
IT IS HEREBY STIPULATED AND AGREED to by and between the Parties hereto
and their respective attorneys, as follows:
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT (the "Agreement") is entered into this ____ day
of _________ 1996 by and between Jules Nordlicht, an individual ("JN"), and
Incomnet, Inc., a California corporation ("Incomnet") with respect to the
following facts.
R E C I T A L S
A. JN holds a convertible promissory note bearing interest at the rate of
8% per annum (the "Note") payable by Incomnet in full on January 31,
1996.
B. Pursuant to the terms of the Note, JN had certain registration rights
with respect to the shares underlying the Note.
C. Incomnet did not register the shares underlying the Note in 1995 in
accordance with the terms of the Note.
NOW THEREFORE, for good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged by the parties, the parties
hereby agree as follows:
1. CONSIDERATION TO JN
In consideration for JN's covenants in Sections 3 and 4 of this
Agreement, and simultaneously upon the execution of this Agreement by all
parties hereto, Incomnet agrees to (i) repay the principal and accrued but
unpaid interest on the Note in full, (ii) issue to JN or his designees a
minimum of 31,000 shares of the common stock of Incomnet (the "Shares"),
subject to adjustment as provided in Section 2 of this Agreement, and deliver
irrevocable instructions to the Incomnet transfer agent for the issuance of
the Shares, and (iii) transfer to JN upon the execution of this Agreement
5,000 warrants to purchase the common stock of Rapid Cast, Inc. on the same
terms and conditions as the warrants which were initially issued to JN with
the Note in February 1995, and, if necessary, deliver irrevocable
instructions to the appropriate transfer agent for the issuance of the
warrants.
2. COVENANTS BY THE COMPANY
Incomnet covenants to file a registration statement on Form S-3 with
the Securities and Exchange Commission within 90 days after the date this
Agreement is executed by both parties hereto covering the Shares, and to use
its reasonable efforts to have the registration statement declared effective
by the Securities and Exchange Commission as soon as practicable after it is
filed. The number of Shares issuable to JN pursuant to this Agreement will be
adjusted upward to the extent necessary to result in JN having $155,000 worth
of Incomnet Common Stock on the date the registration statement is declared
effective by the Securities and Exchange Commission, based on the average of
the last sale price of Incomnet's stock quoted on the NASDAQ during the five
trading days immediately following the effective date of the registration
statement; provided, however, that any such adjustment would be subject to
appropriate further adjustment in order to take into account any stock
splits, stock dividends, spin-offs, reverse stock splits and similar
recapitalization and reorganization transactions by Incomnet or its
subsidiaries. Incomnet will be obligated to pay to JN $100,000 in cash as
liquidated damages in the event that Incomnet does not file the registration
statement within the above referenced 90 day period. In the event Incomnet
fails to file the
-1-
registration statement for the Shares within 90 days after the date of this
Agreement, JN is authorized to enter judgment (the "Judgment") against
Incomnet in the sum of $100,000. It shall be sufficient for the Clerk of the
Court to sign a Judgment to be entered by the Clerk pursuant to this
paragraph based solely upon an affidavit of JN, stating that the registration
statement was not timely filed and that Incomnet has not paid to JN the sum
of $100,000, as provided for in this Agreement. The affidavit and Judgment
shall be submitted to the Clerk of the Court after five (5) days' notice to
Mark Richardson, counsel for Incomnet. If Incomnet is late with the filing
and pays the $100,000 penalty, the Judgment will not be recorded, but
Incomnet will still be considered to be in breach of this Agreement until it
files said registration statement. If Incomnet is late with the filing and
does not pay the $100,000 penalty, then JN may record the Judgment and assert
its remedies for Incomnet's breach of this Agreement. If Incomnet files the
registration statement within the 90 day time period, then Incomnet will not
be obligated to pay any penalty.
3. COVENANTS OF JN
Upon execution of this Agreement by Incomnet, JN covenants to prepare
and file a Stipulation of Settlement for the current lawsuit pending in the
United States District Court for the Eastern District of New York, entitled
JULES NORDLICHT VERSUS INCOMNET, INC. AND SAM SCHWARTZ, Case Number
95-CIV5134 (the "Lawsuit"), disclosing this settlement and indicating that
the case will be dismissed with prejudice once the terms and conditions of
this Settlement Agreement have been fulfilled by Incomnet. JN also agrees to
fully cooperate with Incomnet in the preparation of the registration
statement referred to in Section 2 of this Agreement. JN agrees not to sell
or to give any order to sell (directly or indirectly) the Shares or any other
shares of Incomnet, Inc. common stock during the period from and including
the effective date of the registration statement until the sixth trading day
after the effective date of the registration statement.
4. GENERAL RELEASE
Effective on the date of the filing of the registration statement
covering the Shares, JN hereby fully and forever releases and discharges
Incomnet and any of its past, present and future affiliates, partners,
attorneys, accountants, officers, directors, shareholders, employees,
successors and predecessors, including but not limited to Sam Schwartz, from
any and all claims, demands, obligations, losses, damages, or causes of
action of any nature, whether known or unknown, whether based in tort,
contract or any other theory of recovery, and whether for compensatory,
consequential or punitive damages, that now exist or may hereafter accrue
based on actions occurring prior to the effective date of this release, with
respect to any claims or causes of action which JN has or may have
against Incomnet or Sam Schwartz, including but not limited to those claims
made in the Lawsuit. The undersigned agree that this release
shall not be considered admissions by any party of any liability. The
undersigned warrant that no promise or inducement has been offered except as
herein set forth. The undersigned are of legal age and legally competent to
execute this release and accept full responsibility therefor. The
undersigned 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:
-2-
"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 undersigned declare that the terms of this full and final release of
all claims 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. JN represents and warrants that it has not
assigned any of its above referenced released claims to any third party.
5. INJUNCTIVE RELIEF
5.1 DAMAGES INADEQUATE
Each party acknowledges that it would be impossible to measure in money
the damages to the other party if there is a failure to comply with any
covenants and provisions of this Agreement, and agrees that in the event of
any breach of any covenant or provision, the other party to this Agreement
will not have an adequate remedy at law.
5.2 INJUNCTIVE RELIEF
It is therefore agreed that the other party to this Agreement who is
entitled to the benefit of the covenants and provisions of this Agreement
which have been breached, in addition to any other rights or remedies which
they may have, shall be entitled to immediate injunctive relief to enforce
such covenants and provisions, and that in the event that any such action or
proceeding is brought in equity to enforce them, the defaulting or breaching
party will not urge a defense that there is an adequate remedy at law.
6. 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.
7. 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.
8. ENTIRE AND SOLE AGREEMENT
This Agreement constitutes the entire agreement between the parties and
supersedes all other 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.
-3-
9. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of the State of California.
10. 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.
IN WITNESS WHEREOF, this Agreement has been entered into as of the date
first above written.
INCOMNET: INCOMNET, INC.
By: ___________________________________
Melvyn Reznick, President
Date: _________________________________
JN: ___________________________________
Jules Nordlicht
Date: _________________________________
SO ORDERED HELLER, HOROWITZ & FEIT, P.C.
ATTORNEY FOR PLAINTIFF
292 MADISON AVENUE
NEW YORK, NEW YORK 10017
(212) 685-7600
_________________________ BY: _____________________________
U.S. DISTRICT JUDGE ELI FEIT, ESQ.
_________________________________
MARK J. RICHARDSON, ESQ.
ATTORNEY FOR DEFENDANTS
1299 OCEAN AVENUE, SUITE 900
SANTA MONICA, CALIFORNIA 90401
(310) 393-9992
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