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