ACCORD AND SATISFACTION
This Accord and Satisfaction and Release Agreement (the "Agreement")
is entered into as of this 16th day of January, 1998 by and between
InnovaCom, Inc., a Nevada corporation ("InnovaCom"), Technical Systems
Associates, Inc. ("TSA") and Xxxxxx X. Xxxxxxxx and Terrymay X. Xxxxxxxx,
TSA's sole shareholders, (the "Augustins") (collectively referred to as
WHEREAS, the parties originally entered into an Interim Agreement
dated March 24, 1997 (the "Interim Agreement") which contemplated
InnovaCom's acquiring of all outstanding shares of TSA (the "TSA Shares"),
pursuant to formal agreements which were to be drafted and executed by a
certain date (the "Expiration Date"); and
WHEREAS, formal agreements were never entered into by the Expiration
Date and, subsequently, the parties' obligations under the Interim
Agreement were released and InnovaCom was granted an option to purchase the
TSA Shares, pursuant to an Option to Purchase and Mutual Release Agreement
dated October 15, 1997 (the "Option Agreement"); and
WHEREAS, under the Option Agreement, InnovaCom agreed to pay TSA the
aggregate amount of $300,000 and, contingent upon TSA's receipt of a
certain purchase order from Baron Services ("Baron") for, approximately,
$1.3 million, InnovaCom agreed to provide TSA debt financing in an amount
not to exceed $150,000; and
WHEREAS, InnovaCom did perform it duties under the Option Agreement by
paying the full amount of $300,000 but a dispute has arisen as to whether
TSA received the required purchase order from Baron, as contemplated in the
Option Agreement, which would obligate InnovaCom to provide the debt
WHEREAS, as an Accord and Satisfaction of the obligations of InnovaCom
to provide such debt financing and for the full release of any and all
obligations and liabilities of InnovaCom to TSA and/or the Augustins
including, but not limited to, those contained in the Interim Agreement and
Option Agreement, InnovaCom has agreed to make a final payment to TSA in
the amount of $58,000.
NOW, THEREFORE, based on the foregoing premises, and in consideration
of the mutual promises and conditions set forth herein, the parties agree
I. ACCORD AND SATISFACTION.
A. PAYMENT. InnovaCom herewith delivers to TSA and the
Augustins a check or wire transfer in the amount of Fifty Eight Thousand
Dollars ($58,000) in full satisfaction and extinction of any and all
obligations of InnovaCom to TSA and the Augustins, jointly and severally,
including, but not limited to, any obligation to provide debt financing to
TSA, as contained in Section 2 of the Option Agreement.
B. RECEIPT. TSA and the Augustins, jointly and severally and on
behalf of their officers, directors, shareholders, employees, attorneys,
agents, heirs, executors, administrators, and assigns, hereby agree to
accept such payment, as described in Section 1(A) above, in full
satisfaction and extinction of any and all obligations of InnovaCom to TSA
and the Augustins including, but not limited to, any obligation to provide
debt financing to TSA, as contained in Section 2 of the Option Agreement.
TSA and the Augustins further agree that this constitutes full satisfaction
and extinction of any and all obligations, of any nature whatsoever, of
InnovaCom to TSA and/or the Augustins which may now exist or later be
discovered from the beginning of time until the date of this Agreement.
II. RELEASE AND INDEMNIFICATION.
A. RELEASE. This Agreement shall constitute a full and final
settlement of all of TSA's and the Augustins' claims, demands, disputes and
controversies with InnovaCom, and TSA and the Augustins hereby release
InnovaCom, its agents, attorneys, officers, directors, employees, and
assigns, from all claims, demands, acts or omissions and any causes of
action, known or unknown, suspected or unsuspected, which may now exist or
later be discovered, arising from, relating to, or connected with the
Interim Agreement, the Option Agreement, or any related agreements or from
any other facts, actions, occurrences, or transactions from the beginning
of time until the date of this Agreement. This release shall not apply to
or detract from the obligations of the parties arising under this
Agreement. TSA and the Augustins acknowledge that their release is a
general release and, as further consideration hereunder, expressly waive
Section 1542 of the California Civil Code which provides:
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.
B. INDEMNIFICATION. TSA and the Augustins hereby agree to
indemnify, to the maximum extent permitted by law, and to defend InnovaCom,
with counsel of InnovaCom's choice, and to hold InnovaCom, its officers,
directors, shareholders, employees, attorneys and agents free and harmless
from and against any obligations, damages, liabilities, losses, costs,
claims, judgments, attorneys fees, and attachments arising from or out of
any act or omission of TSA and/or the Augustins which occurred prior to the
date of this Agreement.
III. GENERAL PROVISIONS.
A. ARBITRATION. Any controversy between the parties involving
the construction or application of any term of this Agreement, or any other
matter, shall be submitted to binding arbitration pursuant to the rules and
procedures of the American Arbitration Association then in effect.
B. ADVISE OF COUNSEL. TSA and the Augustins represent and
warrant that they have been advised, and are hereby advised, to seek the
representation of counsel for the transactions contemplated herein prior to
executing this Agreement.
C. ATTORNEY FEES. If any action at law or equity or
arbitration is necessary to enforce or interpret the terms of this
Agreement, the prevailing party shall be entitled to reasonable attorneys'
fees, costs, and necessary disbursements in addition to any other relief to
which the party may be entitled.
D. ENTIRE AGREEMENT. This Agreement supersedes any and all
other agreements, either oral or written, between the parties hereto with
respect to the subject matter hereof and contains all of the covenants and
agreements of the parties with respect thereto.
E. FURTHER ASSURANCES. Each party hereto agrees to do and
perform or cause to be done and performed all such further acts and to
execute and deliver all such other agreements, certificates, instruments
and documents as any other party hereto reasonably may request in order to
carry out the intent and accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.
F. SEVERABILITY. Should any provision of this Agreement be
declared or be determined by any court of competent jurisdiction to be
illegal, invalid, or unenforceable, the legality, validity and
enforceability of the remaining parts, terms or provisions shall not be
affected thereby, and said illegal, unenforceable or invalid part, term or
provisions shall be deemed not to be a part of this Agreement.
G. MODIFICATION. Any modification of this Agreement will be
effective only if it is in writing and signed by the party to be charged.
H. EFFECT OF WAIVER. The failure of any party to insist on
strict compliance with any of the terms of this Agreement by the another
party shall not be deemed a waiver of that term, nor shall any waiver or
relinquishment of any right or power at any one time, or from time to time,
be deemed a waiver or relinquishment of that right or power in the future,
or a waiver of any similar right or power.
I. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of California.
J. VENUE AND JURISDICTION. The parties agree that any
proceeding, including any arbitration, brought in connection with this
Agreement may be brought and heard and may only be brought and heard in the
County of Los Angeles, California, and hereby submit themselves to the
personal jurisdiction of any tribunal in that county before which, under
this Agreement, such action or proceeding may be brought.
K. COUNTERPARTS. This Agreement may be executed in any number
of counterparts (including facsimile signature) each of which shall be
deemed an original, and all of which together shall constitute one and the
IN WITNESS WHEREOF, the parties have executed this Agreement in Santa
Clara, California effective as of the date first above written.
THE COMPANY - INNOVACOM, INC.
Date: January 16, 1998 By: Xxxx X. Xxx, President
TSA - TECHNICAL SYSTEMS ASSOCIATES, INC.
Date: January 16, 1998 By: Xxxxxx X. Xxxxxxxx, President
Date: January 16, 1998 Xxxxxx X. Xxxxxxxx
Date: January 16, 1998 Terrymay X. Xxxxxxxx