10.3 Employment Agreement Between National Telephone & Communications, Inc.
and Edward R. Jacobs, dated July 25, 1997
This Employment Agreement ("Agreement") is between National Telephone &
Communications, Inc., a Delaware corporation located at 2801 Main Street,
Irvine, California 92614 ("NTC") and Edward R. Jacobs, an individual ("Jacobs"),
and is entered into by the parties with reference to the following facts:
A. NTC is a rapidly growing telecommunications services company that
markets its products on a nationwide basis with a network of
independent sales representatives.
B. NTC is currently a wholly-owned subsidiary of a public company,
Incomnet, Inc. ("Incomnet") and has reached an agreement with
Incomnet under which NTC shall become a separate public company,
independent from Incomnet.
C. Jacobs is currently serving as the senior executive officer of NTC
pursuant to an employment agreement (the "Former Agreement") dated
December 28, 1994 between Jacobs, NTC and Incomnet and also is
currently serving as Chairman of NTC's Board of Directors.
D. The term of the Former Agreement expires on July 25, 1997.
E. The Former Agreement does not contain any agreement by Jacobs not to
compete with NTC.
F. NTC desires to (i) make provision for Jacobs' service with NTC after
July 25, 1997 as a senior executive officer and/or Chairman of NTC's
Board of Directors and (ii) secure an agreement by Jacobs not to
compete with NTC.
NOW THEREFORE, in consideration of the mutual promises contain herein, the
parties agree as follows:
1.0 THE EXECUTIVE POSITION
1.1 Jacobs shall continue to serve as, and be appointed by NTC's Board of
Directors to the office of Chairman and/or a senior executive officer of NTC
(the "Executive Position") until July 25, 1999, unless such employment is
terminated prior to such date in accordance with the provisions hereof. Jacobs
shall faithfully and competently perform such duties as are prescribed by the
By-Laws of NTC, and shall also perform and discharge such other executive
employment duties and responsibilities consistent with the business requirements
of the Executive Position as NTC's Board of Directors from time to time may
reasonably prescribe. Jacobs shall
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perform his duties in the Executive Position at such places and times as
NTC's Board of Directors from time to time may reasonably prescribe. Except
as may otherwise be approved in advance by NTC's Board of Directors, and
except during vacation periods and reasonable periods of absence due to
sickness, personal injury or other disability, Jacobs shall devote his full
time during normal business hours until July 25, 1999, as set forth herein,
and shall use his best efforts, judgment and energy to improve and advance
the business interests of NTC in a manner consistent with his duties and
responsibilities in the Executive Position.
2.0 SALARY AND OTHER COMPENSATION
2.1 As compensation for Jacobs' complete and satisfactory performance of
his services in the Executive Position during the period from the date hereof
until July 25, 1999, NTC shall pay Jacobs a base salary of not less than
forty thousand dollars ($40,000) per month (said amount, together with any
incremental increases thereto as may be determined from time to time by NTC's
Board of Directors, being hereinafter referred to as "Salary"). Any Salary
payable hereunder shall be paid in regular intervals, but in no event less
frequently than semi-monthly, in accordance with NTC's payroll practices from
time to time in effect.
2.2 During the period from the date hereof through July 25, 1999, Jacobs
shall be entitled to receive such bonuses and stock options as may be granted
to him from time to time by NTC's Board of Directors.
2.3 As additional compensation for entering into this Agreement, NTC
shall pay for and maintain insurance policies through July 25, 1999, without
income tax consequences to Jacobs, which policies, upon Jacobs' Disability
(as such Disability is defined below in Paragraph 7.2(a) shall pay Jacobs on
a monthly basis for the duration of his life not less than seventy percent
(70%) of the Salary that Jacobs was receiving on the first day of the one
hundred eighty (180) day period of such Disability
3.0 EMPLOYEE BENEFITS
3.1 During the term of Jacobs' service under this Agreement, Jacobs
shall: (i) be eligible to participate in employee fringe benefits and pension
and/or profit sharing plans that may be provided by NTC for its senior
executive employees in accordance with the provisions of any such plans, as
the same may be in effect from time to time; (ii) be eligible to participate
in any medical and health plans or other employee welfare benefit plans that
may be provided by NTC for its senior executive employees in accordance with
the provisions of any such plans, as the same may be in effect from time to
time, (iii) be entitled to annual paid vacation in accordance with NTC's
policy that may be applicable to senior executive employees, as the same may
be in effect from time to time; (iv) be entitled to sick leave, sick pay and
disability benefits in accordance with NTC's policy that may be applicable to
senior executive employees, as the same may be in effect from time to time;
and (v) be entitled to reimbursement for all reasonable and necessary
out-of-pocket business expenses incurred by Jacobs in the performance of his
duties hereunder in accordance with NTC's policy that may be applicable
thereto to senior executive employees, as the same may be in effect from time
to time.
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4.0 WITHHOLDING
4.1 The payment of any Salary, employee benefits and bonuses hereunder
shall be subject to applicable withholding and payroll taxes and such other
deductions as may be required under NTC's employee benefit program.
5.0 STOCK OPTIONS
5.1 In accordance with that certain letter agreement between NTC and
Incomnet dated January 28, 1997 ("January 28, 1997 Letter Agreement"), on
March 20, 1997, NTC granted Jacobs two options (the "Options") to purchase
shares of NTC's common stock, par value $.01 per share (the "Common Stock")
under NTC's 1996 Stock Option Plan. One Option is for 240,835 shares of the
Common Stock and vests in four equal annual installments, subject to
acceleration of vesting in the event that NTC achieves certain financial
performance targets in certain time periods specified in such Option. The
second Option is for 288,462 shares of the Common Stock and vests on January
31, 2002, subject to acceleration of vesting in the event that NTC achieves
certain financial performance targets in certain time periods specified in
such Option.
5.2 The parties hereby now agree that the full vesting of the Option
shall be accelerated to the date this Agreement is approved by NTC's Board of
Directors, and NTC shall make such changes in the Options and 1996 Stock
Option Plan as may be necessary to achieve such accelerated vesting at no
cost to Jacobs.
6.0 TERM OF AGREEMENT
6.1 The parties agree that the term of this Agreement, and Jacobs'
service hereunder, shall commence on the date hereof and continue until July
25, 1999, unless earlier terminated pursuant to the provisions of Paragraph 7.
7.0 EARLY TERMINATION
7.1 TERMINATION OF JACOBS BY NTC FOR "CAUSE"
7.1.a Jacobs' service under this Agreement shall immediately
terminate upon Jacobs' receipt of written notice from NTC's Board of
Directors that NTC is terminating Jacobs service under this Agreement for
"cause," as "cause" is defined below in Paragraphs 7.1.b and 7.1.c
("For-Cause Termination").
7.1.b The parties agree that "cause" for termination within the
meaning of Paragraph 7.1.a above shall constitute any one or more of the
following reasons: (i) Jacobs' conviction for having committed a felony'
(ii) acts of dishonest or moral turpitude by Jacobs that a reasonable person
would agree are materially detrimental to NTC; (iii) gross negligence by
Jacobs in the performance of his obligations as set forth in this Agreement;
(iv) willful disregard by Jacobs of
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his obligations set forth in this Agreement ("Willful Disregard"); and/or (v)
failure by Jacobs to obey the reasonable and lawful orders of NTC's Board of
Directors ("Failure to Obey").
7.1.c The parties also agree that, provided a Willful Disregard
and/or Failure to Obey do not also constitute "cause" under any of clauses
(i) through (v) of Paragraph 7.1.b above, then a Willful Disregard and/or a
Failure to Obey shall not constitute "cause" for termination within the
meaning of Paragraph 7.1.b above, unless and until Jacobs will have received
written notice of such Willful Disregard or Failure to Obey and shall have
been (i) given a reasonable opportunity to discuss the matter with NTC's
Board of Directors, followed by a written notice that NTC's Board of
Directors adheres to its position, and (ii) given a reasonable opportunity to
cure such Willful Disregard or comply with such Failure to Obey, as the case
may be.
7.1.d In the event that Jacobs' termination is a For-Cause
Termination, notwithstanding anything to the contrary expressed or implied
herein, except as required by applicable law, NTC shall not be obligated to
make any payments to Jacobs or make any payments on Jacobs' behalf of any
kind or nature whatsoever by reason of Jacobs' For-Cause Termination, other
than (i) such amounts, if any, of the Salary or other compensation described
in Paragraphs 2.1, 2.2 and 2.3 as shall have accrued and remain unpaid as of
the date of such For-Cause Termination and (ii) such other amounts, if any,
which may be then otherwise payable to Jacobs from NTC's benefit plan or
reimbursement policies.
7.1.e In the event Jacobs' termination is a For-Cause Termination,
then on the date of such termination any and all of the shares of the Common
Stock subject to the Options in which Jacobs has vested but has not yet
exercised shall be null and void if not exercised within ninety (90) days of
the date of such termination.
7.2 TERMINATION OF JACOBS DUE TO DEATH OR DISABILITY
7.2.a Jacobs' service under this Agreement shall be immediately
terminated upon the occurrence of (i) Jacobs' death ("Death"), or (ii)
Jacobs' inability to perform his duties as set forth in this Agreement on
account of his disability or incapacity for a period of one hundred eighty
(180) or more days, whether or not consecutive, occurring within any period
of twelve (12) consecutive calendar months ("Disability").
7.2.b The parties agree that in the event of the termination of
Jacobs' service under this Agreement due to Death or Disability, then NTC
shall pay to Jacobs or shall cause to be paid to Jacobs, or to Jacobs'
personal representative, as the case may be, the amount of the Salary or
other compensation described in Paragraph 2.1, 2.2 or 2.3, if any, that
Jacobs would have otherwise been entitled to receive, as set forth above in
Paragraphs 2.1, 2.2 and 2.3, through the date of such termination.
7.2.c The parties also agree that in the event of the termination of
Jacobs' service under this Agreement due to Death or Disability, then on the
date of such termination, any and all shares of the Common Stock subject to
the Options in which Jacobs has vested but not yet exercised shall become
null and void if not exercised on or before July 25, 1999.
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7.3 TERMINATION OF JACOBS BY NTC OTHER THAN FOR "CAUSE"
7.3.a The parties agree that in the event of the termination of
Jacobs service under this Agreement prior to July 25, 1999 for any reason
other than (a) for reason of a For-Cause Termination, or (b) for reason of
Death or Disability (collectively, "Not-For-Cause Termination"), then NTC
shall continue to pay to Jacobs the amount of the monthly Salary that Jacobs
would have otherwise been entitled to receive as set forth above in Paragraph
2.1 through July 25, 1999.
7.3.b The parties further agree that in the event of a Not-For-Cause
Termination any and all of the shares of the Common Stock subject to the
Options in which Jacobs has vested but not yet exercised shall become null
and void if not exercised on or before July 25, 1999.
7.4 RESIGNATION BY JACOBS FOR "GOOD CAUSE"
7.4.a Jacobs' service under this Agreement shall immediately
terminate upon NTC's receipt of written notice from Jacobs that Jacobs is
resigning his employment for "good cause," as "good cause" is defined below
in Paragraphs 7.4.b and 7.4.c ("Good-Cause Resignation").
7.4.b The parties agree that Jacobs' resignation for "good cause"
within the meaning of Paragraph 7.4.a above, shall occur when notice of such
resignation is given because (i) a material reduction in the duties and
responsibilities of Jacobs, as set forth in this Agreement ("Reduction of
Duties") has taken place, and/or (ii) a material breach of this Agreement by
NTC ("Breach") has taken place, provided that in either such event Jacobs
shall have given NTC written notice specifying such Reduction in Duties
and/or Breach, stating that Jacobs intends to resign by reason thereof, and
such Reduction of Duties and/or Breach shall continue without cure for thirty
(30) days thereafter.
7.4.c The parties agree that Jacobs' resignation for "good cause"
within the meaning of Paragraph 7.4.a above, shall also occur when notice of
such resignation is given within six (6) months following a Change in
Control, as defined in the following sentence. For purposes of this
Agreement, a "Change in Control" shall be deemed to have occurred if any
"person" (as such term in used in Sections 13(d) and 14(d)(2) of the
Securities and Exchange Act of 1934 (the "Exchange Act")), other than a
person or group (as such term is used in Rule 13d-5(b) of the General Rules
and Regulations promulgated under the Exchange Act) (the "Rules and
Regulations") of persons who are affiliates (as such term is defined in Rule
12b-2 of the Rules and Regulations) of NTC or Incomnet on the date hereof,
after the date of this Agreement becomes the beneficial owner, directly or
indirectly, of securities of NTC or Incomnet representing twenty percent
(20%) or more of the combined voting power of NTC or Incomnet's then
outstanding securities (including securities the holder of which has the
right to convert into voting securities of NTC or Incomnet.
7.4.d The parties agree that in the event of the termination of
Jacobs' service under this Agreement due to Jacobs' Good Cause Resignation,
then NTC shall continue to pay to Jacobs
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the amount of the monthly Salary that Jacobs would have otherwise been
entitled to receive, as set forth above in paragraph 2.1 through July 25,
1999.
7.4.e The parties further agree that in the event of a Good Cause
Resignation, any and all of the shares of the Common Stock subject to the
Options in which Jacobs has vested but not yet exercised shall become null
and void if not exercised on or before July 25, 199.
7.5 RESIGNATION BY JACOBS OTHER THAN FOR "GOOD CAUSE"
7.5.a Jacobs' service under this Agreement shall immediately
terminate upon NTC's receipt of written notice from Jacobs that Jacobs is
resigning his service under this Agreement other than for "good cause," as
"good cause" is defined above in Paragraphs 7.4.b and 7.4.c ("Not-For-Cause
Resignation").
7.5.b In the event Jacobs' termination is a Not-For-Cause
Resignation, notwithstanding anything to the contrary expressed or implied
herein, except as required by applicable law, NTC shall not be obligated to
make any payments to Jacobs or make payments on Jacobs' behalf of any kind or
nature whatsoever by reason of Jacobs' Not-For-Cause Resignation, other than
(i) such amounts, if any, of the Salary or other compensation described in
Paragraphs 2.1, 2.2 and 2.3 as shall have accrued and remain unpaid as of the
date of such Not-For-Cause Resignation and (ii) such other amounts, if any,
which may be then otherwise payable to Jacobs from NTC's benefit plans or
reimbursement policies.
7.5.c In the event Jacobs' termination is a Not-For-Cause
Resignation, then on the date of such termination, any and all of the shares
of the Common Stock subject to the Options in which Jacobs has vested but has
not yet exercised shall become null and void if not exercised within one (1)
year of the date of such resignation.
8.0 CONFIDENTIAL INFORMATION
8.1 Jacobs acknowledges and agrees that he will have access to and will
participate in the development of or be acquainted with confidential and/or
proprietary information and trade secrets related to the business of NTC or
used in the business and operations of NTC which are not made publicly
available, including but not limited to: (i) business plans, financial
reports, operating data, budgets, wage and salary rates, pricing strategies
and information, terms of agreements with suppliers or bankers and others,
customer lists, lists of independent representatives, products, proposed
products, services, proposed services, marketing plans, sales plans, patents,
devices, software programs, reports, correspondence, tangible property and
specifications owned or used by NTC's businesses; (ii) information pertaining
to future developments such as but not limited to potential acquisition of
other companies or product lines, potential strategic alliance agreements for
products or market segments, research and development, public offerings,
marketing, distribution, delivery or merchandising plans or ideas, and
potential new business locations; and (iii) other tangible and intangible
property (collectively, "Confidential Information").
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8.2 Jacobs agrees that all Confidential Information shall be the exclusive
properties of NTC. Jacobs further agrees and warrants that he shall not
disclose, use of make known for his or another's benefit any Confidential
Information in any way except in the best interests of NTC in the performance of
Jacobs' duties under this Agreement. However, NTC agrees Jacobs may disclose
Confidential Information when required by applicable law or judicial process,
but only after notice to NTC of Jacobs' intention to do so and opportunity for
NTC to challenge or limit the scope of the disclosure.
8.3 Jacobs acknowledges and agrees that a remedy at law for any breach or
threatened breach of the provisions of this paragraph 8.0 would be inadequate.
Therefore, Jacobs agrees that NTC shall be entitled to injunctive relief in
addition to any other available rights and remedies in cash of any such breach
or threatened breach, provided, however, that nothing contained herein shall be
construed as prohibiting NTC from pursuing any other rights and remedies
available for any such breach or threatened breach.
8.4 Jacobs agrees that upon termination of his service pursuant to this
Agreement for any reason, Jacobs shall forthwith return to NTC any and all
Confidential Information in Jacobs' possession which was obtained in any way by
Jacobs during the period of his service with NTC and which in any way relates to
the business of NTC including but not limited to documents, correspondence,
notebooks, reports, computer programs, computer discs and other electronic
media, and all other materials and copies thereof.
8.5 Jacobs agrees that his obligations under this Paragraph 8.0 shall
survive the expiration or termination of this Agreement and shall terminate
three (3) years after the last to occur of such events.
9.0 AGREEMENT NOT TO COMPETE
9.1 During Jacobs' service under this Agreement and for a one (1) year
period immediately following the termination of Jacobs' service under this
Agreement (other than any termination pursuant to either of Paragraphs 7.3 or
7.4), for any reason whatsoever, Jacobs will not directly or indirectly, as a
director, officer, employee, manager, consultant, contractor, advisor or
otherwise, engage in competition with, or own any interest in, perform any
services for, participate in or be connected with any business or organization
which engages in competition with NTC (i) in any geographical area where any
business is presently carried on by NTC, or (ii) in any geographical area where
any business, during the period of Jacobs' services under this Agreement, shall
be hereafter carried on by NTC, if such business is then being carried on by NTC
in any such geographical area. The parties agree, however, that the provisions
of this Paragraph 9.1 shall not be deemed to prohibit Jacobs' ownership of not
more than four percent (4%) of the total shares of all classes of stock
outstanding of any publicly held company.
9.2 During Jacobs' service under this Agreement and for a one (1) year
period immediately following the termination of Jacobs' service under this
Agreement (other than any termination pursuant to either of Paragraphs 7.3 or
7.4), Jacobs shall not for any reason whatsoever (i) directly or indirectly
solicit for employment any employee of NTC, or (ii) directly
7
or indirectly advise or recommend to any other person that they employ or
solicit for employment any employee of NTC.
9.3 During Jacobs' service under this Agreement and for a one (1) year
period immediately following the termination of Jacobs' service under this
Agreement (other than any termination pursuant to either of Paragraphs 7.3 or
7.4), for any reason whatsoever, Jacobs shall not (i) directly or indirectly
solicit for employment, or solicit for services, or solicit for any other
business reason any person who was or is an independent sales representative in
NTC's marketing program during the period of Jacobs' service under this
Agreement, or (ii) directly or indirectly advise or recommend to any other
person that such other person, directly or indirectly, solicit for employment,
or solicit for services, or solicit for any other business reason any person who
was or is, during the period of Jacobs' service under this Agreement, an
independent sales representative in NTC's marketing program.
9.4 During Jacobs' service under this Agreement and for a one (1) year
period immediately following the termination of Jacobs' service under this
Agreement (other than any termination pursuant to either of Paragraphs 7.3 or
7.4), for any reason whatsoever, Jacobs shall not directly or indirectly hire,
engage, send work to, place orders with, or in any manner be associated with any
supplier, contractor, subcontractor, or other person or firm which rendered
services to, or sold products to NTC if such actions by Jacobs would have a
material adverse effect on the business, assets or financial condition of NTC.
9.5 For the purposes of this Paragraph 9.0, a person or entity, including
without limitation, Jacobs, shall be deemed to be a competitor of NTC, shall be
deemed to be engaging in competition with NTC, if such person or entity in any
way conducts, operates, carries out or engages in (i) the business of marketing
long distance telephone services or pager services or Internet access services,
and/or (ii) such other future business or businesses as NTC may reasonably be
expected to conduct within the one (1) year period immediately following the
termination of Jacobs' services under this Agreement (other than any termination
pursuant to either Paragraphs 7.3 or 7.4) in such geographic areas or area as
such future business or businesses may reasonably be conducted by NTC.
9.6 In connection with all of the above provisions of this Paragraph 9.0,.
Jacobs represents to NTC that his experience, capabilities and circumstances are
such that such provisions will not prevent Jacobs from earning a livelihood.
Jacobs agrees and understands that the covenants he has made in this paragraph
9.0, shall survive the expiration or termination of this Agreement and shall
terminate one (1) year after the last to occur of such events. Jacobs further
agrees that the limitations set forth in this Paragraph 9.0, including all time
and territorial limitations, are reasonable and properly required for the
reasonable and adequate protection of the business of NTC.
9.6 Jacobs acknowledges and agrees that a remedy at law for any breach of
threatened breach by Jacobs of any of the provisions of this Paragraph 9.0 would
be inadequate. Jacobs therefore agrees that NTC shall be entitled to injunctive
relief of any such breach or threatened
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breach, provided however, that nothing contained herein shall be construed as
prohibiting NTC from pursuing any other rights and remedies available for any
such breach or threatened breach.
10.0 RIGHT TO PAYMENTS
10.1 Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge or hypothecation or to exclusion,
attachment, levy or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to effect any such action shall be null and
void and of no effect.
11.0 GENERAL PROVISIONS
11.1 DISPUTES AND SELECTION VENUE. In the event of any dispute,
controversy or claim ("Disputed Matter") between the parties to this
Agreement or the breach thereof, the parties agree to and are obligated to
submit the Disputed Matter to binding arbitration in accordance with the
Rules of the American Arbitration Association. The parties further agree
that such arbitration shall be held in the County of Orange in the State of
California ("Venue"). By execution of this Agreement, the parties
irrevocably and unconditionally submit to the jurisdiction of said
arbitration in any such Disputed Matter. Nothing herein shall be construed
to limit or restrict the rights of the parties to obtain equitable remedies
and relief from any court of competent jurisdiction in said Venue.
11.2 APPLICABLE LAW. This Agreement shall be construed, governed and
enforced in accordance with the laws of the State of California.
11.3 ATTORNEY FEES. In the event of any Disputed Matter between the
parties hereto in connection with this Agreement, the prevailing party shall be
entitled to receive from the losing party all of his or its reasonable costs,
fees and expenses including but not limited to court costs and reasonable
attorneys' fees.
11.4 AMENDMENT. No amendment, modification, waiver, discharge or change
("Amendment") to this Agreement shall be valid unless such Amendment is in
writing and signed by both of the parties hereto.
11.5 ADDITIONAL DOCUMENTS. Each of the parties hereto specifically agrees
to execute such other and further instruments and documents as may reasonably be
required to effectuate the terms, conditions and objectives of this Agreement.
11.6 SEVERABILITY AND COMPLIANCE. If any term, condition or provisions
of this Agreement is found to be invalid, contrary to law or otherwise
unenforceable ("Invalid Provision"), such finding shall in no way affect the
validity or enforceability of the other terms, conditions and provisions
herein. Such other terms, conditions and provisions shall be valid and
enforceable as if the Invalid Provision was never a part hereof. Each party
hereto shall be excused without further liability from the performance of any
duty, obligation or responsibility
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hereunder to the extent it is prevented from such performance by applicable
laws, rules or regulations or by the order or decision of any regulatory
authority.
11.7 WAIVER OF BREACH. The waiver of one party of a breach of any term,
condition or provision of this Agreement by the other party shall not operate
or be construed as a waiver of any subsequent breach of any type whether of
similar or dissimilar nature.
11.8 NOTICES. Any and all notices, demands or other communications
("Notice") given hereunder shall be delivered to the party to whom such Notice
is addressed by delivery in person or by delivery through United States
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to Jacobs: Edward R. Jacobs
c/o NTC
2801 Main Street
Irvine, CA 92614
If to NTC: National Telephone & Communications, Inc.
2801 Main Street
Irvine, CA 92614
Attn: President
If delivery is by United States mail, notice shall be deemed to have been
given three (3) working days after being placed in such mail, as evidenced by
a mailing receipt. Either party may change its address for the purpose of
this Agreement by giving the other party written notice of its new address.
11.9 ASSIGNMENTS. Unless specifically granted in a term, condition or
provisions hereinabove, this Agreement and the rights and obligations granted
and agreed to hereunder may not be assigned by either party to this Agreement by
sale of business, operation of law or otherwise without first obtaining the
written consent of the other party which both parties agree will not be
unreasonably withheld unless such an assignment is specifically disallowed in a
term, condition or provision hereinabove. The parties further agree that
nothing in this paragraph 11.9 above shall preclude Jacobs from designating a
beneficiary to receive any benefit payable hereunder upon Jacobs' death or
incapacity.
11.10 VALID ENTITY. Each party to this Agreement which is a legal entity
such as a partnership, corporation or trust or the like represents that it is a
validly formed and existing entity, that it has the authority to enter into this
Agreement and that all acts necessary to make this Agreement valid and binding
have been done. The person or persons executing this Agreement on behalf of
such entity represents that they have the right and authority to do so.
11.11 REPRESENTATION BY COUNSEL OF OWN CHOOSING. By executing this
Agreement, each party of this Agreement represents and warrants that said party
is either represented by counsel of
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his or its choosing, or has been advised to seek such representation, advice
or counsel, and has voluntarily and knowingly declined to do so.
11.12 CONSTRUCTION. Any rule of law to the contrary notwithstanding, this
Agreement shall be construed as if drafted by all parties regardless of which
part or which party's legal counsel either actually drafted this Agreement or
printed or physically memorialized this Agreement between the parties.
11.13 CAPTIONS. The captions in this Agreement are inserted for convenience
of reference only and do not define, describe or limit the scope or the intent
of this Agreement or any of the terms, conditions or provisions hereof.
11.14 NUMBER AND GENDER. The use of neuter, masculine or feminine gender
and the similar plural number in any term, condition or provision of this
Agreement shall be deemed to include the other whenever the context so requires.
11.15 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and each such counterpart shall be deemed an original; but all
of such counterparts taken together shall constitute one and the same
agreement.
11.16 SURVIVAL. In the event this Agreement provides for a closing or a
transfer of possession to or title of property, all terms, covenants,
warranties and conditions of this Agreement shall survive such closing or
transfer except for payments actually fully made or acts fully performed
before or at the time of such closing or transfer.
11.17 ENTIRE AGREEMENT. This Agreement and the January 28, 1997 Letter
Agreement, and all amendments thereto, set forth and constitute the entire
agreement between parties with respect to the subject matter herein and
supersede all previous agreements, promises and representations, either oral
or in writing, between the parties hereto with respect to the transaction
covered hereby, and contain all the covenants and agreements between the
parties.
11.8 BENEFITS. Subject to the restrictions on assignment and transfers,
if any, which may be set forth in this Agreement, the terms, conditions and
provisions of this Agreement shall inure to the benefit of and be binding on
the parties hereto and all their respective successors including but not
limited to permitted assigns, executors, administrators, heirs and
representatives; and no other person or entity shall have any rights
whatsoever under this Agreement.
This Agreement is now therefore agreed to effective July 25, 1997, in the
County of Orange, State of California.
NTC: JACOBS:
National Telephone &
Communications, Inc. Edward R. Jacobs
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By: /s/ James R. Quandt /s/ Edward R. Jacobs
----------------------- --------------------
James R. Quandt Edward R. Jacobs
President and Director
By: /s/ Melvyn Reznick
-----------------------
Melvyn Reznick
Director
By: /s/ Fred Jager
-----------------------
Fred Jager
Director
By: /s/ Pamela Carter
-----------------------
Pamela Carter
Director
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