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Exhibit (10) 36.
RESCISSION AGREEMENT
Agreement made this 21st day of May, 1997, by and between SYSTEMS
COMMUNICATIONS, INC., a Florida corporation, hereinafter called "SCI";
AMERISTAR TELECOMMUNICATIONS, INC., hereinafter called "ATI";
XXXX XXXXXXXX and XXXXXXX XXXXXXXXX.
WHEREAS, in August of 1994 SCI acquired all of the stock of ATI and ATI
became a wholly owned subsidiary, and
WHEREAS, as part of that acquisition, SCI issued to XXXXXXXX and
XXXXXXXXX shares of stock in SCI and warrants for additional shares of SCI
stock; and
WHEREAS SCI, its Board of Directors, ATI, XXXXXXXX and XXXXXXXXX desire
to rescind the August 1994 acquisition of ATI by SCI; and
WHEREAS, the Parties recognize that it is in their best interests to
reduce to writing the following terms as an expression of the intentions of
the parties.
Now, therefore, in consideration of the mutual promises herein provided,
the parties agree as follows:
ARTICLE I
Return of Stock and Promissory Notes
1.1 That the WHEREAS clauses hereinabove set forth are not mere
recitals and are an integral part of this agreement.
1.2 XXXXXXXX and XXXXXXXXX shall retain a total of 100,000 shares of
SCI common stock which 100,000 shares shall include any SCI stock pledged to
any banks or financial institutions as security for any loans or other forms
of consideration. XXXXXXXX and XXXXXXXXX shall, upon the execution of this
Agreement, return to SCI all other shares of common stock, preferred stock and
warrants which they obtained from SCI in connection with or as a result of the
August 1994 acquisition (exclusive of any shares previously sold in the
market.). XXXXXXXX and XXXXXXXXX (i) have the legal authority to transfer the
common stock, preferred stock and warrants and (ii) will properly endorse for
transfer all of the common stock, preferred stock and warrants to be returned
to SCI.
1.3 ATI shall, upon the execution of this Agreement, return to SCI
the promissory note totaling $500,000.00 between SCI and XXXXXXXX and
XXXXXXXXX which Promissory Note shall be marked Paid in Full or Canceled
and such notation shall be signed and dated by XXXXXXXX and XXXXXXXXX. In
addition, SCI shall forgive all inter-company debts between SCI and ATI.
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1.4 Upon the execution of this Agreement, SCI shall return to XXXXXXXX
and XXXXXXXXX all of the shares of ATI stock which were acquired by SCI in the
August1994 acquisition of ATI. SCI (i) has the legal authority to transfer
the ATI stock and (ii) will properly endorse for transfer all of the ATI STOCK
to be returned to XXXXXXXX and XXXXXXXXX.
1.5 SCI shall return to ATI all books and records relating to the
business of ATI. SCI shall, upon written request from Skylink, return all
information and videotapes relating to Skylink directly to Skylink and SCI
will provide written confirmation to ATI that the materials have been returned
to directly to Skylink. SCI may retain a copy of the books and records
relating to the business of ATI.
ARTICLE II
Release of SCI as Guarantor on Sun Financial leases
2.1 The Parties acknowledge that, as of March 31, 1997 SCI was and is
a guarantor on financing amounts which have been advanced to ATI by Sun
Financial for the purchase of pay-per-view equipment which amounts are equal
to all future minimum lease payments executed by ATI and total approximately
$180,000.00. ATI shall make arrangements with Sun Financial to either release
SCI as the guarantor from any liability under the Sun Financial leases or make
arrangements for ATI to pay Sun Financial the amounts owed under the subject
leases.
2.2 Notwithstanding the foregoing, upon the execution of this
Agreement, ATI shall execute and deliver to SCI a Promissory Note payable to
SCI in the amount of $180,000.00. The sums set forth in the Promissory Note
shall only become due and payable upon ATI's default of any payment
obligations relating to the Sun Financial leases and then only in the amount
of the payment obligations still owing to Sun Financial. In addition, ATI
shall correct any inconsistencies or inaccuracies regarding the lock-box
agreements called for under the Sun Financial lease agreements. ATI shall
also maintain ongoing compliance with the terms of said lock-box agreements
and shall take any and all necessary steps to obtain compliance with those
lock-box agreements with any ATI customers and suppliers.
2.3 XXXXXXXXX and XXXXXXXX specifically acknowledge and agree
that Promissory Note called for under this Article II shall be and is secured
by all office equipment, pay-per-view and telecommunications equipment covered
by leases. ATI shall not sell, transfer, convey, abandon or otherwise impair
any of the identified assets without the prior written consent of SCI.
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ARTICLE III
Release and Indemnification
3.1 Release. In consideration of the mutual promises and covenants
contained herein ATI, XXXXXXXX and XXXXXXXXX hereby release SCI, its officers,
and agents from any and all claims, actions, suits, or proceedings arising in
any way out of the business operations of ATI from the beginning of time until
the present and into the future which have been or may be brought against SCI,
ATI or any subsidiaries of SCI. This release applies to all such claims,
suits, actions, or proceedings whether known or unknown, discovered or
undiscovered and regardless of whether any such claims are or were capable of
being discovered by either SCI, ATI, XXXXXXXXX or XXXXXXXX. In addition,
SCI hereby releases ATI, XXXXXXXX, XXXXXXXXX and ATI'S officers, directors
and agents from any and all claims, actions, suits, or proceedings arising in
any way out of the business operations of SCI, excluding those business
operations relating to ATI up to the date of this Agreement, from the
beginning of time until the present and into the future which have been or may
be brought against SCI, ATI, XXXXXXXX, XXXXXXXXX and any officers or directors
of ATI or any subsidiaries of SCI.
The Parties specifically agree that this release is not intended to and
does not apply to any personal liability of XXXXXXXXX or XXXXXXXX imposed or
sought to be imposed by third parties and growing or arising out of any
actions they engaged in while acting in their capacity as a member of SCI's
Board of Directors .
THE PARTIES FURTHER SPECIFICALLY AGREE THAT THE RELEASES CONTAINED IN
THIS PARAGRAPH ARE THE ESSENCE OF THIS AGREEMENT AND WITHOUT WHICH NO
AGREEMENT WOULD BE ENTERED INTO BY SCI, ATI, XXXXXXXX or XXXXXXXXX.
3.2 Indemnification. ATI, XXXXXXXXX and XXXXXXXX hereby agree to
indemnify SCI and to hold SCI harmless from any and all damage, loss,
liability, expense (including without limitation, reasonable out-of-pocket
expenses of investigation and reasonable attorneys' fees and expenses in
connection with any claim, action, suit, or proceeding brought against the
other) and for any other costs incurred by SCI arising in any way out of the
business operations of ATI from August 1994 until the present and into the
future which have been or may be brought against SCI, ATI or any subsidiaries
of SCI by third parties. Similarly, SCI agrees to indemnify ATI, XXXXXXXXX
and XXXXXXXX and to hold ATI, XXXXXXXXX and XXXXXXXX harmless from any and
all damage, loss, liability, expense (including without limitation, reasonable
out-of-pocket expenses of investigation and reasonable attorneys' fees and
expenses in connection with any claim, action, suit, or proceeding brought
against the other) and for any other costs incurred by ATI, XXXXXXXXX and
XXXXXXXX arising out of or hereunder with respect to any business operations
of SCI, excluding those business operations relating to ATI brought by third
parties, from August 1994 until the present and into the future which have
been or may be brought against SCI, ATI or any subsidiaries of SCI by third
parties.
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The Parties specifically agree that this indemnification provision
is not intended to and does not apply to any personal liability of XXXXXXXXX
or XXXXXXXX imposed or sought to be imposed by third parties and growing or
arising out of any actions they engaged in while acting in their capacity as a
member of SCI's Board of Directors. Any issues regarding the indemnification
of XXXXXXXXX or XXXXXXXX growing or arising out of any actions they engaged in
while acting in their capacity as a member of SCI's Board of Directors shall
be governed by the provisions contained in the By-Laws of SCI.
ARTICLE IV
Resignation
4.1 If not already provided by the time of the execution of this
Agreement, then upon the execution of this Agreement, XXXXXXXXX and XXXXXXXX
shall submit their written resignations from SCI's Board of Directors,
effective immediately, and by signing this Rescission Agreement XXXXXXXXX and
XXXXXXXX hereby voluntarily terminate their Employment Agreements with SCI
dated October 15, 1994. XXXXXXXXX and XXXXXXXX hereby specifically agree to
waive and acknowledge their voluntary waiver of any and all salary and
benefits from SCI, whether accrued or unaccrued, currently due and owing or to
become due in the future. SCI shall not be obligated in any way whatsoever to
provide or continue to provide any benefits of employment to XXXXXXXXX and/or
XXXXXXXX as of May 21, 1997, including but not limited to, health insurance,
life insurance, bonuses, stock options or any other similar benefit.
ARTICLE V
No Contact with Customers or Vendors
5.1 None of the parties hereto will contact the vendors or customers
of the other or disparage the other party to such customers or vendors.
ARTICLE VI
Miscellaneous
6.1 No Waivers. The failure of either party to enforce any provision
of this Agreement shall not be construed as a waiver of any such provision,
nor prevent such party thereafter from enforcing such provision or any other
provision of this Agreement.
6.2 Notices. Any notice to be given to SCI and ATI, XXXXXXXX and/or
XXXXXXXXX under the terms of this Agreement may be delivered personally, by
telecopy, telex or other form of written electronic transmission, or by
registered or certified mail, postage prepaid, and shall be addressed as
follows:
If to SCI: Systems Communications, Inc.
0000 Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
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If to the ATI or
XXXXXXXX and XXXXXXXXX: Ameristar Telecommunications, Inc.
0000 Xxx XxXxxxx Xxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Either party may hereafter notify the other in writing of any change in
address. Any notice shall be deemed duly given (i) when personally delivered,
(ii) when telecopied, telexed or transmitted by other form of written
electronic transmission, or (iii) on the their day after it is mail by
registered mail or certified mail, postage prepaid, as provided herein.
6.3 Severability. The provisions of this Agreement are severable and
if any provision of this Agreement shall be held to be invalid or otherwise
unenforceable, in whole or in part, the remainder of the provision, or
enforceable parts thereof, shall not be affected thereby.
6.4 Successors and Assigns. The rights and obligations of all of the
parties under this agreement shall inure to the benefit of and be binding upon
their successors and assigns, including the survivor upon any merger,
acquisition, consolidation or combination of SCI with any other entity. The
parties shall not have the right to assign, delegate or otherwise transfer any
duty or obligation to be performed by him/it hereunder to any person or entity
without the prior written consent of the other parties to this Agreement.
6.5 Entire Agreement. This Agreement supersedes all prior agreements
and understandings between the parties hereto, oral or written, and may not be
modified or terminated orally. No modification, termination, or attempted
waiver shall be valid unless in writing, signed by the party against whom such
modification, termination or waiver is sought to be enforced. The parties
agree that no prior drafts of this Agreement shall be admissible as evidence
in any proceeding which involves the interpretation of any provision of this
Agreement.
6.6 Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of Florida.
6.7 Section Headlines. The section headings contained herein are for
the purposes of convenience only and are not intended to define or limit the
contents of said sections.
6.8 Counterparts. This Agreement may be executed in counterparts, all
of which taken together shall be deemed one original.
6.9 Continued Cooperation. The Parties to this Agreement specifically
agree to continue to cooperate in any additional action required to affect the
rescission of SCI's acquisition of ATI and that they shall, when called upon,
execute any necessary documents to complete this rescission or to provide any
information required by any local, state, municipal or federal governmental
agency, including but not limited to the Securities and Exchange Commission.
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6.10 Attorney's Fees. In the event that either party is required to
engage the services of legal counsel to enforce the terms and conditions of
this Agreement against the other party, regardless of whether such action
results in litigation, the prevailing party shall be entitled to reasonable
attorneys' fees, costs of legal assistants, and other costs from the other
party, which shall include any fees or costs incurred at trial or any
appellate proceeding, and expenses and other cost, including any accounting
expenses incurred.
IN WITNESS WHEREOF, the parties hereto have executed this Rescission
Agreement as of the date first above written.
SYSTEMS COMMUNICATIONS, INC.
("SCI")
By: /s/ Xxxxx X. Xxxxxx
Xxxxx Xxxxxx
Chairman of the Board
/s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
Director
/s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Director
/s/ Xxxxxxx Xxxxx
Xxxxxxx Xxxxx
Director
/s/Xxxx Xxxxxxxx
Xxxx Xxxxxxxx
/s/Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxxxx
Ameristar Telecommunications, Inc.
By: /s/ Xxxx Xxxxxxxx
Its: President
