As filed with the Securities and Exchange Commission on June 25, 1999.
Registration No. _______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
INNOVACOM, INC.
(Exact name of registrant as specified in its charter)
Nevada 88-0308568
(State or other jurisdiction of incorporation (IRS Employer
or organization) Identification No.)
3400 Garrett Drive, Santa Clara, California 95054
(Address of Principal Executive Office) (Zip Code)
1999 Nonstatutory Stock Option Plan
1996 Incentive and Nonstatutory Stock Option Plan
Nonstatutory Stock Options for Eight (8) Directors
Nonstatutory Stock Options for Four (4) Consultants
Nonstatutory Stock Options for Thomas Burke (Former President)
(Full title of the plans)
FRANK J. ALIOTO, President
Innovacom, Inc.
3400 Garrett Drive
Santa Clara, California 95054
(Name and address of agent for service)
(408) 727-2447
(Telephone number, including area code, of agent for service)
<PAGE>2
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, check the following: |X|
<TABLE>
<S> <C> <C> <C> <C>
CALCULATION OF REGISTRATION FEE
-------------------------------
Proposed Proposed
maximum maximum
Title of securities Amount to be offering price per aggregate offering Amount of
to be registered registered share price registration fee
- ------------------- ------------------- ------------------- ------------------- -------------------
Common Stock,
par value $0.001 9,450,000 $0.4141(1) $3,913,245 $1,088.00
- ------------------- ------------------- ------------------- ------------------- -------------------
</TABLE>
(1) Based on the average high and low price for one share of Common Stock as
quoted upon the OTC Bulletin Board on June 22, 1999 pursuant to Rule
457(h)(1).
<PAGE>3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed or to be filed by Innovacom, Inc. (the
"Company") pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of
1934 (the "Exchange Act") are incorporated by reference in this registration
statement.
1. Form 10-KSB for the year ended December 31, 1998;
2. Form 10-QSB for the quarter ended March 31, 1999;
3. The Company's proxy statement for a special meeting to be held
on June 11, 1999; and
4. Form 10-SB, as amended on March 19, 1999.
All documents subsequently filed by the Company pursuant to Section
13(a), 13(c), 14, or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this registration statement and to be a part
thereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
The Company has adopted Section 78.751 of the Domestic and Foreign
Corporation Laws of the State of Nevada in its bylaws. Section 78.751 states:
1. A corporation may indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, except an action by or in the right of
the corporation, by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other
enterprise, against expenses, including attorneys' fees, judgments,
fines and amounts paid in settlement actually and reasonably incurred by
him in connection with the
<PAGE>4
action, suit or proceeding if he acted in good faith and in a manner
which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, does not, of itself, create a presumption that the person
did not act in good faith and in a manner which he reasonably believed
to be in or not opposed to the best interests of the corporation, and
that, with respect to any criminal action or proceeding, he had
reasonable cause to believe that his conduct was unlawful.
2. A corporation may indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that he is or was
a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against expenses, including amounts paid in
settlement and attorneys' fees actually and reasonably incurred by him
in connection with the defense or settlement of the action or suit if he
acted in good faith and in a manner which he reasonably believed to be
in or not opposed to the best interests of the corporation.
Indemnification may not be made for any claim, issue or matter as to
which such a person has been adjudged by a court of competent
jurisdiction, after exhaustion of all appeals therefrom, to be liable to
the corporation or for amounts paid in settlement to the corporation,
unless and only to the extent that the court in which the action or suit
was brought or other court of competent jurisdiction determines upon
application that in view of all the circumstances of the case, the
person is fairly and reasonably entitled to indemnity for such expenses
as the court deems proper.
The Company has entered into indemnification agreements with its
officers and directors. Pursuant to the agreements, The Company has agreed to
defend and indemnify such officers and directors for all expenses and
liabilities for acting as such.
In addition, the Company carries directors' and officers' insurance
pursuant to authority in its Bylaws to maintain a liability insurance policy
which insures directors or officers against any liability incurred by them in
their capacity as such, or arising out of their status as such.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No.
5.1 Opinion of Bartel Eng Linn & Schroder, counsel to InnovaCom
10.19 Employment Agreement with Thomas E. Burke, dated March 23, 1998 (1)
10.20 1996 Incentive and Nonstatutory Stock Option Plan (originally filed
as exhibit 3.1)(2)
10.32 1999 Nonstatutory Stock Option Plan
<PAGE>5
10.33 Settlement Agreement with Paul Fry
10.34 Settlement Agreement with Scott Thorogood
23.1 Consent of Hein + Associates LLP, independent auditors
23.2 Consent of Bartel Eng Linn & Schroder is contained in Exhibit 5.1
- -------------------------------------------------
(1) Previously filed with the Company's Pre-Effective Amendment No. 1 to
Registration Statement on form SB-2 filed on April 15, 1998.
(2) Previously filed with the Company's Form 10-SB on December 12, 1997
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended (the "Securities Act"), each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers, and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer, or controlling person of the registrant
in the successful defense of any action, suit, or proceeding) is asserted by
such director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question of whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
<PAGE>6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Santa Clara, State of California, on June 23, 1999
INNOVACOM, INC.,
a Nevada corporation
By /s/ FRANK J. ALIOTO
-------------------
Frank J. Alioto
President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signatures Date
- ------------------------------- --------------
/s/ FRANK J. ALIOTO June 23, 1999
- ---------------------
Frank J. Alioto,
President and Chairman of
the Board of Directors
(Principal Executive Officer)
- ----------------
Mark C. Koz,
Director
/s/ STANTON R. CREASEY June 23, 1999
- ------------------------
Stanton R. Creasey,
Chief Financial Officer
(Principal Accounting and Financial Officer)
/s/ TONY LOW June 23, 1999
- -----------------
Tony Low,
Director
/s/ ROBERT SIBTHORPE June 23, 1999
- ---------------------
Robert Sibthorpe,
Director
/s/ JOHN CHAMPLIN June 23, 1999
- -------------------
John Champlin,
Director
EXHIBIT 5.1 AND 23.2
June 23, 1999
Board of Directors
InnovaCom, Inc.
3400 Garrett Drive
Santa Clara, California 95054
Re: InnovaCom, Inc.
Registration on Form S-8
Gentlemen:
We act as counsel to InnovaCom, Inc. (the "Company"), a Nevada
corporation, in connection with the registration under the Securities Act of
1933, as amended (the "Securities Act"), of 9,450,000 shares of the Company's
Common Stock (the "Shares") that may be issued upon the exercise of stock
options pursuant to the Company's various stock option plans and agreements with
certain employees, directors, and consultants.
For the purpose of rendering this opinion, we examined originals or
photostatic copies of such documents as we deemed to be relevant. In conducting
our examination, we assumed, without investigation, the genuineness of all
signatures, the correctness of all certificates, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such copies, and the accuracy and completeness
of all records made available to us by the Company. In addition, in rendering
this opinion, we assumed that the Shares will be offered in the manner and on
the terms identified or referred to in the prospectus, including all amendments
thereto.
Our opinion is limited solely to matters set forth herein. Attorneys
practicing in this firm are admitted to practice in the State of California and
we express no opinion as to the laws of any other jurisdiction other than the
laws of the State of Nevada and the laws of the United States.
Based upon and subject to the foregoing, after giving due regard to such
issues of law as we deemed relevant, and assuming that (i) the Registration
Statement becomes and remains effective, and the prospectus which is part
thereof (the "Prospectus"), and the Prospectus delivery procedures with respect
thereto, fulfill all of the requirements of the Securities Act, throughout all
periods relevant to the opinion, and (ii) all offers and sales of the Shares
have been and will be made in compliance with the securities laws of the states,
having jurisdiction thereof, we are of the opinion that the Shares to be issued
upon the exercise of stock options for adequate consideration will be, validly
issued, fully paid, and nonassessable.
<PAGE>2
Board of Directors
June 23, 1999
Page 2
We hereby consent in writing to the use of our opinion as an exhibit to
the Registration Statement and any amendment thereto.
Very truly yours,
BARTEL ENG LINN & SCHRODER
INNOVACOM, INC.
1999 NONSTATUTORY STOCK OPTION PLAN
1. Purpose; Definitions.
(a) Purpose. The purpose of the Plan is to attract, retain and
motivate employees, officers, directors, and consultants of the Company, a
parent corporation, or a subsidiary corporation of the Company, by giving them
the opportunity to acquire Stock ownership in the Company.
(b) Definitions. For purposes of the Plan, the following terms
have the following meanings:
(i) "Administrator" means the Compensation Committee referred to in Section
4 in its capacity as administrator of the Plan, or the Board in the event that
it abolishes the Compensation Committee and reinvests in the Board the
administration of the Plan.
(ii) "Board" means the Board of Directors of InnovaCom.
(iii) "Commission" means the Securities and Exchange Commission and
successor agency.
(iv) "Company" means InnovaCom, Inc., a Nevada corporation, its parent
corporation, or subsidiary corporation, if any.
(v) "Director" shall mean a member of the Board.
(vi) "Non-Employee Director" has the meaning set forth in Rule 16b-3 under
the Exchange Act, and any successor definition adopted by the Commission.
(vii) "Effective Date" has the meaning set forth in Section 2.
(viii) "Eligible Person" shall mean any director, officer or employee of
the Company or other person who, in the opinion of the Board, is rendering
valuable services to the Company, including without limitation, an independent
contractor, outside consultant, or advisor to the Company.
(ix) "Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any successor statute.
(x) "Fair Market Value" shall mean (i) if the stock is listed or admitted
to trade on a national securities exchange, the closing price of the Stock on
the Composite Tape, as published in the Western Edition of the Wall Street
Journal, of the principal national securities exchange on which the Stock is so
listed or admitted to trade, on such date, or, if there is no trading of the
Stock on such date, then the closing price of the Stock as quoted on such
Composite Tape on the next preceding date on which there was trading in such
Stock; (ii) if the Stock is not listed or admitted to trade on a
<PAGE>
national securities exchange, the last price for the Stock on such date, as
furnished by the National Association of Securities Dealers, Inc. ("NASD")
through the NASDAQ National Market Reporting System or a similar organization if
the NASD is no longer reporting such information; (iii) if the stock is not
reported on the National Market Reporting System, the mean between the closing
bid and asked price for the stock on such date, as furnished by the NASD; and
(iv) if the stock is not reported on the National Market Reporting System and if
bid and asked prices for the stock are not furnished by the NASD or a similar
organization, the value established by the Administrator for purposes of
granting options under the Plan.
(xi) "Grant Date" means the date of grant of any Option.
(xii) "Officer" shall mean an officer of the Company and an officer who is
subject to Section 16 of the Exchange Act.
(xiii) "Option" shall mean an option to purchase Common Stock under this
this Plan and each Option shall be designated by the Administrator as a
Non-qualified Stock Option.
(xiv) "Option Agreement" means the written option agreement covering an
Option.
(xv) "Optionee" means the holder of an option.
(xvi) "Parent" means any corporation (other than the employer corporation)
in an unbroken chain of corporations ending with the employer corporation if, at
the time of the granting of the option, each of the corporations other than the
employer corporation owns stock possessing fifty percent (50%) or more of the
total combined voting power of all classes of stock in one of the other
corporations in such chain.
(xvii) "Plan" means this InnovaCom, Inc. 1999 Nonstatutory Stock Option
Plan as amended from time to time.
(xviii)"Rule 16b-3" means Rule 16b-3 under Section 16 (b) of the Exchange
Act, as amended from time to time, and any successor rule.
(xix) "Stock" means the Common Stock, par value $0.001, of the Company, and
any successor entity.
(xx) "Subsidiary" shall mean any corporation in an unbroken chain of
corporations beginning with the employer corporation if, at the time of granting
of an Option, each of the corporations other than the last corporation in the
unbroken chain owns stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.
(xxi) "Tax Date" means the date defined in Section 6.
(xxii) "Vesting Date" means the date on which an Option becomes wholly or
partially exercisable, as determined by the Administrator in its sole
discretion.
<PAGE>
2. Effective Date; Term of Plan. The Effective Date of this Plan shall
be June 21, 1999.
3. Number and Source of Shares of Stock Subject to the Plan. Subject to
the provisions of Section 7, the total number of shares of Stock with respect to
which Options may be granted under this Plan is five million (5,000,000) shares
of Stock. The shares of Stock covered by any canceled, expired or terminated
Option or the unexercised portion thereof shall become available again for grant
under this Plan. The shares of Stock to be issued hereunder upon exercise of an
Option may consist of authorized and unissued shares or treasury shares.
4. Administration of the Plan. This Plan shall be administered by a
committee of at least two (2) members of the Board to which administration of
this Plan is delegated by the Board, all of whom shall be Non-Employee Directors
(the "Compensation Committee"). The "Administrator" shall mean the "Compensation
Committee" referred to in this Section 4 in its capacity as administrator of the
Plan in accordance with this Section 4. The Administrator may delegate
non-discretionary administrative duties to such employees of the Company as it
deems proper.
Subject to the express provisions of this Plan, the Administrator shall
have the authority to construe and interpret this Plan and any agreements
defining the rights and obligations of the Company and Optionees under this
Plan, to further define the terms used in this Plan, to prescribe, amend and
rescind rules and regulations relating to the administration of this Plan, to
determine the duration and purposes of leaves of absence which may be granted to
Optionees without constituting a termination of their employment for purposes of
this Plan and to make all other determinations necessary or advisable for the
administration of this Plan.
Any decision or action of the Administrator in connection with this Plan
or Options granted or shares of Stock purchased under this Plan shall be final
and binding. The Administrator shall not be liable for any division, action or
omission respecting this Plan, or any Options granted or shares of Stock sold
under this Plan. The Board at any time may abolish the Compensation Committee
and reinvest in the Board the administration of the Plan.
To the extent permitted by applicable law in effect from time to time,
no member of the Compensation Committee or the Board of Directors shall be
liable for any action or omission of any other member of the Compensation
Committee or the Board of Directors nor for any act or omission on the member's
own part, excepting only the member's own willful misconduct or gross
negligence, arising out of or related to the Plan. The Company shall pay
expenses incurred by, and satisfy a judgment or fine rendered or levied against,
a present or former director or member of the Compensation Committee or Board in
any action against such person (whether or not the Company is joined as a party
defendant) to impose liability or a penalty on such person for an act alleged to
have been committed by such person while a director or member of the
Compensation Committee or Board arising with respect to the Plan or
administration thereof or out of membership on the Compensation Committee or
Board or by the Company, or all or any combination of the preceding; provided,
the director or Compensation Committee member was acting in good faith, within
what such director or Compensation Committee member reasonably believed to have
been within the scope of his or her employment or authority and for a purpose
which he or she reasonably believed to be in the best interests of the Company
or its shareholders. Payments authorized hereunder include amounts paid and
expenses incurred in settling any such action or threatened action. The
provisions of this section shall apply to the estate, executor, administrator,
heirs, legatees or devisees of a director or Compensation Committee member, and
the term
<PAGE>
"person" as used on this section shall include the estate, executor,
administrator, heirs, legatees, or devisees of such person.
5. Grant of Options; Terms and Conditions of Grant.
(a) Grant of Options. One or more Options may be granted to any
Eligible Person. Subject to the express provisions of the Plan, the
Administrator shall determine from the Eligible Persons those individuals to
whom Options under the Plan may be granted.
Subject to the express provisions of the Plan, the Administrator shall
specify the Grant Date, the number of shares of Stock covered by the Option, the
exercise price and the terms and conditions for exercise of the Options. If the
Administrator fails to specify the Grant Date, the Grant Date shall be the date
of the action taken by the Administrator to grant the Option. As soon as
practicable after the Grant Date, the Company will provide the Optionee with a
written Option Agreement in the form approved by the Administrator, which sets
out the Grant Date, the number of shares of Stock covered by the Option, the
exercise price and the terms and conditions for exercise of the Option.
The Administrator may, in its absolute discretion, grant Options under
this Plan at any time and from time to time before the expiration of ten years
from the Effective Date to an Eligible Person.
(b) General Terms and Conditions. Except as otherwise provided
herein, the Options shall be subject to the following terms and conditions and
such other terms and conditions not inconsistent with this Plan as the
Administrator may impose:
(i) Exercise of Option. In order to exercise all or
any portion of any Option granted under this Plan, an Optionee must remain as an
officer, employee, consultant or director of the Company until the Vesting Date.
The Option shall be exercisable on or after each Vesting Date in accordance with
the terms set forth in the Option Agreement.
(ii) Option Term. Each Option and all rights or
obligations thereunder shall expire on such date as shall be determined by the
Administrator, but not later than 10 years after the grant of the Option, and
shall be subject to earlier termination as hereinafter provided.
(iii) Exercise Price. The Exercise Price of any Option
shall be determined by the Administrator.
(iv) Method of Exercise. To the extent the right to
purchase shares of Stock has accrued, Options may be exercised, in whole or in
part, from time to time in accordance with their terms by written notice from
the Optionee to the Company stating the number of shares of Stock with respect
to which the Option is being exercised and accompanied by payment in full of the
exercise price. Payment may be made in cash, certified check or, at the absolute
discretion of the Administrator, by non- certified check.
(v) Restrictions on Stock; Option Agreement. At the
time it grants Options under this Plan, the Company may retain, for itself
or others, rights to repurchase the shares of Stock acquired under the Option or
impose other restrictions on such shares. The terms and conditions of any such
rights or other restrictions shall be set forth in the Option Agreement
evidencing the Option. No
<PAGE>
Option shall be exercisable until after execution of the Option Agreement by the
Company and the Optionee.
(vi) Non-assignability of Option Rights. No Option
shall be transferable other than by will or by the laws of descent and
distribution. During the lifetime of an Optionee, only the Optionee may exercise
an Option.
(vii) Termination of Employment/Consulting/Directorship.
If for any reason including death or permanent and total disability an Optionee
ceases to be employed by the Company, Options held at the date of such
termination (to the extent then exercisable) may be exercised, in whole or in
part, at any time within the period specified in the Option Agreement (but in no
event after the earlier of (i) the expiration date of the Option as set forth in
the Option Agreement, and (ii) ten years from the Grant Date), or such less
period specified by the Administrator.
(viii) Compliance with Securities Laws. The Company shall
not be obligated to issue any shares of Stock upon exercise of an Option unless
such shares are at that time effectively registered or exempt from registration
under the federal securities laws and the offer and sale of the shares of Stock
are otherwise in compliance with all applicable securities laws. Upon exercising
all or any portion of an Option, an Optionee may be required to furnish
representations or undertakings deemed appropriate by the Company to enable the
offer and sale of the shares of Stock or subsequent transfers of any interest in
such shares to comply with applicable securities laws. Evidences of ownership of
shares of Stock acquired upon exercise of Options shall bear any legend required
by, or useful for purposes of compliance with, applicable securities laws, this
Plan or the Option Agreement evidencing the Option.
6. Payment of Taxes. Upon the exercise of the Option by Optionee or
other person of shares of an Option, the Company shall have the right to require
such Optionee or such other person to pay by cash, or check payable to the
Company, the amount of any taxes which the Company may be required to withhold
with respect to such transactions. Any such payment must be made promptly when
the amount of such obligation becomes determinable (the "Tax Date"). The
Administrator may, in lieu of such cash payment, withhold that number of Shares
sufficient to satisfy such withholding.
7. Adjustment for Changes in Capitalization. The existence of
outstanding Options shall not affect the Company's right to effect adjustments,
recapitalizations, reorganizations or other changes in its or any other
corporation's capital structure or business, any merger or consolidation, any
issuance of bonds, debentures, preferred or prior preference stock ahead of or
affecting the Stock, the dissolution or liquidation of the Company's or any
other corporation's assets or business or any other corporate act whether
similar to the events described above or otherwise. Subject to Section 8, if the
outstanding shares of the Stock are increased or decreased in number or changed
into or exchanged for a different number or kind of securities of InnovaCom or
any other corporation by reason of a recapitalization, reclassification, stock
split, combination of shares, stock dividend or other event, an appropriate
adjustment of the number and kind of securities with respect to which Options
may be granted under this Plan, the number and kind of securities as to which
outstanding Options may be exercised, and the exercise price at which
outstanding Options may be exercised will be made.
<PAGE>
8. Dissolution, Liquidation, Merger.
(a) InnovaCom Not The Survivor. In the event of a dissolution or
liquidation of InnovaCom, a merger, consolidation, combination or reorganization
in which InnovaCom is not the surviving corporation, or a sale of substantially
all of the assets of InnovaCom (as determined in the sole discretion of the
Board of Directors), the Administrator, in its absolute discretion, may cancel
each outstanding Option upon payment in cash to the Optionee of the amount by
which any cash and the fair market value of any other property which the
Optionee would have received as consideration for the shares of Stock covered by
the Option if the Option had been exercised before such liquidation,
dissolution, merger, consolidation, combination, reorganization or sale exceeds
the exercise price of the Option or negotiate to have such option assumed by the
surviving corporation. In addition to the foregoing, in the event of a
dissolution or liquidation of InnovaCom, or a merger, consolidation, combination
or reorganization, in which InnovaCom is not the surviving corporation, the
Administrator, in its absolute discretion, may accelerate the time within which
each outstanding Option may be exercised.
(b) InnovaCom is the Survivor. In the event of a merger,
consolidation, combination or reorganization in which InnovaCom is the surviving
corporation, the Board of Directors shall determine the appropriate adjustment
of the number and kind of securities with respect to which outstanding Options
may be exercised, and the exercise price at which outstanding Options may be
exercised. The Board of Directors shall determine, in its sole and absolute
discretion, when InnovaCom shall be deemed to survive for purposes of this Plan.
9. Change of Control. If there is a "change of control" in InnovaCom,
all outstanding Options shall fully vest immediately upon the Company's public
announcement of such a change. A "change of control" shall mean an event
involving one transaction or a related series of transactions, in which (i)
InnovaCom issues securities equal to 50% or more of InnovaCom's issued and
outstanding voting securities, determined as a single class, to any individual,
firm, partnership, limited liability company, or other entity, including a
"group" within the meaning of SEC Exchange Act Rule 13d-3, (ii) InnovaCom issues
voting securities equal to 50% or more of the issued and outstanding voting
stock of InnovaCom in connection with a merger, consolidation other business
combination, (iii) InnovaCom is acquired in a merger or other business
combination transaction in which InnovaCom is not the surviving company, or (iv)
all or substantially all of InnovaCom's assets are sold or transferred. See
Section 8 with respect to Options vesting upon the occurrence of either of the
events described in (iii) or (iv) of this Section 9 and the result upon the
non-exercise of the Options.
10. Suspension and Termination. In the event the Board or the
Administrator reasonably believes an Optionee has committed an act of misconduct
including, but limited to acts specified below, the Administrator may suspend
the Optionee's right to exercise any Option granted hereunder pending final
determination by the Board or the Administrator. If the Board or Administrator
determines that an Optionee has committed an act of embezzlement, fraud,
dishonesty, breach of fiduciary duty or deliberate disregard of InnovaCom rules,
or if an Optionee makes an unauthorized disclosure of any Company trade secret
or confidential information, engages in any conduct constituting unfair
competition, induces any Company customer to breach a contract with the Company
or induces any principal for whom the Company acts as agent to terminate such
agency relationship, neither the Optionee nor his estate shall be entitled to
exercise any Option hereunder. In making such determination,
<PAGE>
the Board or the Administrator shall give the Optionee an opportunity to appear
and present evidence on the Optionee's behalf. The determination of the Board or
the Administrator shall be final and conclusive.
11. No Rights as Shareholder or to Continued Employment. An Optionee
shall have no rights as a shareholder with respect to any shares of Stock
covered by an Option. An Optionee shall have no right to vote any shares of
Stock, or to receive distributions of dividends or any assets or proceeds from
the sale of Company assets upon liquidation until such Optionee has effectively
exercised the Option and fully paid for such shares of Stock. Subject to
Sections 7 and 8, no adjustment shall be made for dividends or other rights for
which the record date is prior to the date title to the shares of Stock has been
acquired by the Optionee. The grant of an Option shall in no way be construed so
as to confer on any Optionee the rights to continued employment by the Company.
12. Termination; Amendment. The Board may amend, suspend or terminate
this Plan at any time and for any reason, but no amendment, suspension or
termination shall be made which would impair the right of any person under any
outstanding Options without such person's consent not unreasonably withheld.
Further, any amendment which materially increases the benefits accruing to
participants under this Plan, shall be subject to the approval of the
InnovaCom's shareholders.
13. Governing Law. This Plan and the rights of all persons under this
Plan shall be construed in accordance with and under applicable provisions of
the laws of the State of Nevada.
MUTUAL SETTLEMENT AGREEMENT
AND RELEASE OF CLAIMS
This Mutual Settlement Agreement and Release of Claims, dated April 26,
1999 ("Agreement"), is made and entered into by and between InnovaCom, Inc., a
Nevada corporation (hereinafter referred to as "InnovaCom"), Paul Fry, an
individual (hereinafter referred to as "Fry"), and NATV Marketing, a Nevada
corporation (hereinafter referred to as "NATV").
RECITALS
WHEREAS, as a result of Fry's contact and assignment, on September 12,
1997, InnovaCom entered into a joint venture with Beijing CRI Development
Company, a legal entity under Chinese law ("CRI") for the purpose of
establishing a trade pavilion ("Joint Venture Agreement"), a copy is hereto
attached as "Exhibit A";
WHEREAS, as part of the Joint Venture Agreement, on July 11, 1997,
InnovaCom entered into a Ten (10) year Service Agreement with NATV providing for
an annual salary of up to $60,000.00 and the opportunity to receive up to fifty
percent (50%) of the InnovaCom's interest in the Joint Venture (the "Service
Agreement"), a copy is hereto attached as "Exhibit B";
WHEREAS, as part of the Joint Venture Agreement, among other items,
InnovaCom was to issue One Hundred Thousand (100,000) shares of InnovaCom's
common stock to Fry (the "Shares");
WHEREAS, InnovaCom has not delivered the Shares to Fry;
WHEREAS, due to its financial condition and change in business
direction, InnovaCom no longer wishes to pursue the Joint Venture Agreement; and
WHEREAS, the parties have agreed to enter this Agreement to terminate
the Joint Venture Agreement, Service Agreement and mutually release each other
from all obligations under the Service Agreement and Joint Venture Agreement.
NOW, THEREFORE, for and in consideration of the promises and of
the mutual representations, warranties, covenants, and agreements set forth in
this Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
l. Release from Joint Venture Agreement. NATV will (i) terminate or
cause the termination of the Joint Venture Agreement between CRI and InnovaCom
and (ii) have CRI and InnovaCom release each other from any and all liabilities,
damages, and obligations under the Joint Venture Agreement by executing a
general release in substantially the form attached hereto
<PAGE>
as "Exhibit C."
2. Termination of the Service Agreement. Upon execution of this
Agreement, InnovaCom and NATV mutually agree to terminate the Service Agreement.
3. Title to the Shares. Upon execution of this Agreement, Fry shall
fully release and relinquish any and all rights, claims, and action as to the
Shares and InnovaCom shall cause the Shares to be canceled.
4. Obligations by InnovaCom. Upon the execution of this Agreement,
InnovaCom shall(i) pay NATV $43,000, which represents the difference between
$53,000 minus the$10,000 already received by NATV, in cash for cancellation of
future services and (ii) issue to Fry 200,000 shares of InnovaCom's common stock
("Service Shares") pursuant to a registration statement on Form S-8 in manner
described below. InnovaCom shall use its best effort to issue the Service Shares
pursuant to a registration statement on Form S-8. The issuance of the Service
Shares on Form S-8 shall be in exchange for Fry's release of compensation for
past bona fide services and not for capital raising purposes. Upon issuance of
the Service Shares, Fry shall execute a release to InnovaCom in satisfaction of
this Section 4. Failure by InnovaCom to issue the Service Shares on Form S-8 on
or before May 17, 1999, shall subject InnovaCom to a liquidated damage payment
of $5,000 per month to NATV, subject to pro ration for a period of less than one
month.
5. Obligations by NATV. NATV agrees to provide InnovaCom with its
Federal Employer Identification number for the purpose of preparing the 1099 or
satisfactory proof that NATV is exempt under the Internal Revenue Code so that
InnovaCom is excused from filing a 1099 for NATV. NATV further agrees to return
the rosewood desk ("Desk") in its possession that was purchase by InnovaCom or
its subsidiary by April 30, 1999. NATV will arrange for shipment of the Desk and
submit the quote to InnovaCom. On approval of InnovaCom's approval, NATV will
ship the Desk freight collect.
6. Full Mutual Release of All Claims. Upon the execution of this
Agreement, each party, on behalf of themselves and their heirs, dependents,
executors, administrators, agents, officers, directors, stockholders, employees,
consultants, representatives, attorneys, parent, subsidiary organization,
affiliate, partners, assigns, predecessors, and successors hereby fully and
irrevocably release and discharge each other, in both a corporate and personal
capacity, and their heirs, dependents, executors, administrators, agents,
officers, directors, stockholders, employees, consultants, representatives,
attorneys, successors, and assigns, from any and all claims, demands, acts,
breaches, omissions, duties, guarantees, obligations, debts, dues, accounts,
covenants, contracts, controversies, agreements, promises, torts, judgments,
executions, liabilities, damages, injunctions, assignments, suits, or causes of
action of every kind and nature, however or wherever arising, whether known or
unknown, foreseen or unforeseen, suspected or unsuspected, direct or indirect,
contingent or actual, liquidated or unliquidated, matured or unmatured, which
may now exist or later be discovered, arising from, related to, or connected in
any manner with the Service Agreement and/or agreements entered into by the
parties resulting from the Joint Venture Agreement, or arising from any other
facts, acts, occurrences, or
<PAGE>
transactions whatever, from the beginning of time until the execution of this
Agreement, it being the express intention of the parties that this release be as
broad as permitted by law. This release shall not apply to or detract from the
obligations of the parties arising under the terms of this Agreement.
7. Release of Unknown Claims. Each of the parties agrees and
acknowledges that the above releases are full general releases of all claims,
and that they apply to claims that they do not know or suspect to exist in their
favor at the time of execution of these releases. Each of the parties hereby
expressly waives ss.1542 of the California Civil Code, and any other rule or
statute of similar purport, regarding unknown claims. Each of the parties hereby
certifies that he has read ss.1542 of the California Civil Code, which provides
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 parties understand and acknowledge that the significance and consequence of
this waiver of California Civil Code ss.1542 is that even if a party should
eventually suffer additional damages as a result of an unknown claim, he or it
will not be able to make any claim for those damages. Furthermore, the parties
each acknowledge that they intend these consequences as to claims for damages
that may exist as of the date of these releases but which they each do not know
exist, and which, if known, would materially affect their decision to execute
these releases, regardless of whether their lack of knowledge is the result of
ignorance, oversight, error, negligence, or any other cause.
8. Confidentiality. The parties agree that they will keep the facts,
terms and amounts of this Agreement completely confidential provided that any
party hereto may make such disclosures as are required by law and as are
necessary for legitimate law enforcement or compliance purposes.
9. Covenant Against Suit and Non-Disparagement. Each of the parties
agrees not to bring, foment, aid, solicit, encourage, incite, or cooperate with
any claim, suit, administrative proceeding, or other adverse action, including
but not limited to ones based in whole or in part on any of the claims, acts,
torts, omissions, or causes of action released under this Agreement, by any
person, group, or entity, against either of the parties hereunder, unless
legally compelled to do so. In addition, each of the parties agrees not to
disparage, criticize, or impugn the other party hereunder, or to comment
publicly or privately or divulge information of any kind regarding the terms,
content, or subject matter of this Agreement. To the extent authorized by law,
the terms and subject matter of this Agreement shall remain strictly
confidential to the parties hereto. The covenants contained herein shall not
apply to or detract from the enforcement of the obligations arising under this
Agreement.
<PAGE>
10. No Admission. This Agreement is entered into for the sole purpose of
resolving the matters described in it and nothing in this Agreement shall be
construed as an admission or description of any preexisting fact, obligation,
liability, right, or other matter for any purpose other than the construction
and enforcement of this Agreement.
11. Conditions of Execution. The parties acknowledge, agree, and warrant
that their execution of this Agreement is free and voluntary. The parties
acknowledge and represent that they have had ample time to consider this
Agreement, have read it in its entirety and fully understand its meaning, and
are voluntarily entering into it.
12. Legal Representation. The parties acknowledge and represent that
they have had the opportunity to and are hereby advised to consult with their
own lawyer before executing this Agreement.
13. No Other Representations. Except as otherwise provided herein, the
parties represent that neither they nor their representatives have given any
legal, factual, or other representations or opinions relating to this Agreement
other than those expressly contained in it.
14. Further Acts. The parties shall promptly take such further acts and
execute such other documents as shall be necessary to carry out the manifest
intent of this Agreement, including, without limitation, the convening of a
Board meeting or meetings, and the execution of corporate resolutions. Without
limiting the generality of the foregoing, in the event that any court,
administrative agency, county recorder, secretary of state, or other
governmental agency may require any additional or different documents or actions
in order to effect the purposes contemplated by this Agreement, the parties
shall execute the necessary documents and take the necessary steps to comply
with those requirements.
15. Integration. This Agreement constitutes the entire agreement among
the parties concerning its subject matter and it supersedes all prior or
contemporaneous contracts, agreements, understandings, negotiations, and
discussions, whether oral or written, concerning its subject matter.
16. No Oral Modification. No amendment, supplement, modification,
waiver, or termination of this Agreement shall be binding unless it is contained
in a writing signed by the party against whom it is sought to be enforced.
17. Expenses of Matters Settled. Each of the parties shall bear their
own costs of attorneys' fees and other expenses related to the matters being
settled, and no party shall make any payment or provide any consideration other
than what may be described in this Agreement. InnovaCom shall be responsible for
the costs of attorneys' fees and other expenses related to the drafting of this
Agreement.
<PAGE>
18. Governing Law. This Agreement is entered into, and shall be
construed and interpreted in accordance with, the laws of the State of
California.
19. 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 Santa
Clara, California, and the parties 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.
20. Authority. The parties represent and warrant that they, through the
signatory indicated below, are duly authorized to enter into this Agreement and
to fulfill its terms, and that none of the rights, claims, or obligations being
released under this Agreement have been conveyed, assigned, or otherwise
transferred.
21. Successors and Assigns. This Agreement shall be binding on and inure
to the benefit of the heirs, executors, administrators, successors, and assigns
of the respective parties.
22. Expenses of Enforcement. If either party breaches any obligations
under this Agreement, the party affected by the breach shall be entitled to
receive from the breaching party his or its reasonable expenses, attorneys'
fees, and costs incurred in any action taken, with or without arbitration or
litigation, to enforce the terms of this Agreement, or to remedy or compensate
for such a breach.
23. Binding Arbitration. In the event of a dispute regarding the terms
or construction of this Agreement, the parties shall submit to binding
arbitration. If arbitration is required, each party shall select an arbitrator
of his or its choice, and the two arbitrators shall then agree upon the
selection of a third arbitrator. If the two arbitrators fail to agree on the
third arbitrator within fifteen (15) days after the second of them has been
initially selected by the parties, then the third arbitrator shall be appointed
by the presiding judge of the Santa Clara County Superior Court. The arbitration
shall be conducted in accordance with the commercial rules and procedures of the
American Arbitration Association then in effect. The decision of any two of the
three arbitrators shall be final, conclusive, and binding on the parties, and
shall be issued within thirty (30) days from the date the arbitrators finally
hear and adjudicate such dispute. The parties shall share equally in any initial
fees of the arbitration. However, the prevailing party shall be reimbursed for
all of his or its fees expended and costs incurred by the non-prevailing party,
as determined by the arbitrators.
24. Notices. All notices to be given by either party to the other shall
be in writing and may be transmitted by personal delivery, facsimile
transmission, overnight courier or mail, registered or certified, postage
prepaid with return receipt requested; provided, however, that notices of change
of address or telex or facsimile number shall be effective only upon actual
receipt by the other party. Notices shall be delivered at the following address,
unless changed as provided for herein:
<PAGE>
InnovaCom , Inc.
c/o Stanton Creasey
3400 Garrett Drive
Santa Clara, California 95054
Telephone: 408-727-2447
Facsimile: 408-727-6625
Paul Fry
1315 S. Saltair Avenue, #202
Los Angeles, CA 90025
Telephone: 310-473-2763
Facsimile: 310-473-2763
NATV Marketing
c/o Paul Fry
1315 S. Saltair Avenue, #202
Los Angeles, CA 90025
Telephone: 310-473-2763
Facsimile: 310-473-2763
25. Severability. Should any provision of this Agreement be declared or
be determined by any court 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 provision shall be deemed to be not a part of this
Agreement.
26. Gender. As used in this Agreement, the masculine, feminine, or
neuter gender, and the singular or plural number, shall be deemed to include the
others whenever the context so indicates.
27. Counterparts. This Agreement may be executed in any number of
counterparts (including facsimile signature), each of which executed counterpart
shall be deemed to be a duplicate original of this Agreement, and all of which
together shall constitute one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, this Agreement has been executed and delivered by or
on behalf of each of the undersigned.
INNOVACOM, INC.
By: /S/ Frank Alioto Dated: April 28, 1999
-------------------------------------------------------
Frank Alioto, President
By: /S/ Paul Fry Dated: April 28, 1999
-------------------------------------------------------
Paul Fry, an individual
NATV Marketing
By: /S/ Paul Fry Dated: April 28, 1999
-------------------------------------------------------
Paul Fry, President
THIS FIRST AMENDED SETTLEMENT AGREEMENT AND RELEASE ("Agreement") has been
entered into effective as of March 31, 1999, by and between InnovaCom, Inc., on
the one hand ("InnovaCom"), and Scott Thorogood, on the other hand ("Thorogood")
(collectively "the Parties.")
RECITALS
A. On or about July 1, 1996, the Parties entered into a Consulting
Agreement and Nonstatutory Stock Option Agreement (hereinafter "Contracts").
B. Thorogood thereafter performed certain services under the Consulting
Agreement and terminated his relationship as a consultant on or about May 5,
1997.
C. A dispute has arisen concerning Thorogood's rights under the
Contracts, and Thorogood has made demand upon InnovaCom for unpaid compensation,
for refusal to honor his stock option rights, and for possible tort claims and
causes of action.
D. InnovaCom has asserted claims against certain former officers,
directors and shareholders of InnovaCom in an action filed on November 10, 1997
in San Francisco Superior Court entitled InnovaCom, Inc. V. Haynes, et al.,
Civil 990965, and has threatened to name Thorogood as a defendant in that case,
and/or other cases it has initiated against certain third parties (hereinafter
collectively "the Actions").
E. The Parties each deny any wrongdoing, but wish to resolve all
disputes existing between them, including all claims under the Contracts, the
Actions or otherwise.
<PAGE>
NOW, THEREFORE, in consideration of the above Recitals (which are hereby
incorporated as part of this Agreement, and in consideration for their mutual
agreements expressed herein, and intending to be legally bound thereby, EACH OF
THE PARTIES HEREBY AGREES AS FOLLOWS:
1. SETTLEMENT CONSIDERATION
1.1
a) No later than May 15, 1999 ("Payment Date"), InnovaCom shall pay to
Thorogood the sum of $8,000 in a cashiers check or other ready funds, with
interest of 1% per month accruing from and after the Payment Date; b) InnovaCom
shall register 40,000 shares of common stock in the Company's pending S-8
registration statement, which shares shall be registered in the name of Mr.
Thorogood and shall be freely tradeable upon the effective date of the S-8
registration statement.c) If the S-8 registration statement does not become
effective in a reasonable time period, then at Thorogood's option InnovaCom
shall issue to Thorogood a certificate for 40,000 shares of InnovaCom stock,.
and shall grant Thorogood piggyback registration rights for such shares.
InnovaCom shall cause such shares to be included in the next registration of
shares undertaken by InnovaCom or any successor, affiliate, or controlling
persons. The registration rights shall be in the
<PAGE>
form of Exhibit A attached hereto, and made a part of this Agreement. In the
event that InnovaCom enters into a merger or acquisition with another entity,
whereby the InnovaCom shareholders do not have a controlling interest in the
surviving entity, the surviving entity shall have the responsibility to register
the options governed by this agreement within a reasonable time frame subsequent
to the completion of the transaction.
1.2 The parties acknowledge that the settlement consideration paid herein
is to fully resolve tort claims that Thorogood believes he has, including claims
for emotional distress.
1.3 Each party shall be responsible for their own fees and costs in
connection with the disputes being released hereunder.
2. GENERAL RELEASES
2.1 "Business Relationship". The term "Business Relationship," as used in
this Agreement, shall mean all prior business dealings between the Parties,
including without limitation, (a) any matters relating to the negotiation,
execution and delivery of the Contracts, and all documents and communications
ancillary thereto; (b) all conduct, actions, performance, and any alleged
failure to act or non-performance, of any of the Parties hereto under, pursuant
to, or in connection with the Contracts; (c) any alleged oral understanding,
implied agreement, course of conduct, commitment, or other legally enforceable
obligation under or relating to the Contracts, or the transactions
<PAGE>
contemplated thereby, and (d) any discussions, negotiations or alleged
agreements purporting to compromise, release or settle an claims or disputes
between the parties hereto.
2.2 Release of InnovaCom by Thorogood. Effective upon receipt of the
consideration in Section 1.1, Thorogood, on behalf of himself and each of his
agents, attorneys, successors, and assigns, hereby acknowledges and agrees;
(a) that InnovaCom and each of its present or former directors, officers,
employees, shareholders, partners, managers, successors, affiliates, agents,
attorneys, successors and assigns, are hereby released from all claims, demands,
actions, causes of action, costs, fines, obligations, guaranties, losses or
damages (including punitive damages) arising from, relating to, or in any way
connected with the Business Relationship, and
(b) that each of Thorogood's agents and attorneys, successors and assigns,
are hereby released from all Claims arising from, relating to, or in any way
connected with the Business Relationship or the Actions but only to the extent
that such Claims are derivative of
2.3 Release of Thorogood by InnovaCom.
InnovaCom, on behalf of itself and each of its present or former directors,
officers, employees, shareholders, partners, managers,, affiliates, agents,
attorneys, successors, and assigns, hereby acknowledges and agrees
<PAGE>
(a) that Thorogood and each of his agents and attorneys, successors and
assigns, are hereby released from all Claims arising from, relating to, or in
any way connected with the Business Relationship or the Actions, and
(b) that each of Thorogood's agents and attorneys, successors and assigns,
are hereby released from all Claims arising from, relating to, or in any way
connected with the Business Relationship or the Actions but only to the extent
that such Claims are derivative of Claims against Thorogood that are released in
2.3(a). For purposes of this section, a Claim against a party is "derivative" if
it arises from the party's relationship with Thorogood as to the Claims released
in 2.3(a), and does not arise from conduct or obligations of the party that is
independent of Thorogood or the Claims against Thorogood released herein.
For purposes of this section, "Claims" shall mean claims, demands, actions,
causes of action, costs, fines, obligations, guaranties, losses or damages
(including punitive damages);
2.4 Release of Unknown Claims. Each Party hereby waives any and all rights
and benefits which he or it now has or in the future may have conferred upon him
or it by virtue of the provisions of Section 1542 of the Civil Code of the State
of California, or any similar or comparable provision of law of any jurisdiction
which may now exist or hereafter be enacted and which may be applicable to the
subject matter of this Agreement. Said Section 1542 provides 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.
<PAGE>
3. OTHER PROVISIONS
3.1 Representations Concerning Authority and Binding Effect. By executing
and delivering this Agreement, each Party represents and warrants to each other
Party that (a) if such Party is a corporate or other entity, such representing
Party has taken all necessary action to authorize the execution and delivery of
this Agreement; (b) this Agreement has been executed and delivered by such
Party, or on such Party's behalf by such Party's duly authorized
representative(s); (c) this Agreement constitutes a valid and binding obligation
of such Party, enforceable against such Party in accordance with its terms; and
(d) such Party has not assigned any rights or claims released by such Party
herein to any other person or entity.
3.2 Further Assurances. Each Party agrees to execute and to deliver all
such other and additional agreements, instruments, releases, advice and
documents, and to take all such other actions, as any other Party hereto may
reasonably request, more fully to carry out the agreements and releases
contained herein.
3.3 Attorney's Fees and Costs. In the event that any Party, or any person
asserting claims, or who may in the future assert claims derivatively, or
otherwise through such Party, asserts a right or claim against a Party or
Parties that is determined by a court of competent
<PAGE>
jurisdiction to have been released by this Agreement, the Party or Parties
against whom such claim is made shall have the right to recover from such
asserting Party, or from such Party through whom or which such claimant has
asserted such right or claim, all of such responding Party's or Parties'
reasonable attorneys' fees and costs incurred in defending against any such
claim. Any other dispute between the Parties under this Agreement shall entitle
the prevailing party to an award of its reasonable attorneys fees and costs.
3.4 No Other Agreements. This Agreement supersedes any and all prior
agreements between the parties, including without limitation any compromise,
settlement, release, employment, stock option, or consulting agreement, all of
which are hereby rendered null and void. This Agreement embodies the entire
agreement of the Parties relating to the subject matter hereof and there are no
other agreements or understandings relating to this matter other than as stated
in this Agreement. Each Party acknowledges that this Agreement is fully
integrated and not in need of parole evidence in order to reflect the intentions
of the Parties, and that such Party intends that the literal words of this
Agreement shall govern the transactions described herein and that all prior
negotiations, drafts and other extraneous communications have no significance or
evidentiary effect whatsoever.
3.5 No Waiver. This Agreement may not be modified, amended, terminated, or
waived except by a writing signed by each of the Parties. No course of conduct
shall have the effect of modifying, amending, terminating or waiving the terms
of this Agreement absent a writing signed by the Parties hereto.
<PAGE>
3.6 Execution in Counterparts. This Agreement may be executed in any number
of counterparts, each of which, when so executed and delivered, shall be deemed
to be an original and all of which counterparts taken together shall constitute
but one and the same instrument.
3.7 Successors and Assigns. The terms of this Agreement shall inure to the
benefit of and shall be binding upon, the successors and assigns of each Party
hereto.
2.8 Severability. If any term or other provision of this Agreement is
rendered invalid, illegal or incapable of being enforced by any rule of law, or
public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any Party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the Parties shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the Parties as closely as possible in an acceptable manner to the end
that transactions contemplated hereby are fulfilled to the extent possible.
2.9 Governing Law. This Agreement shall be governed in all respects,
including validity, interpretation and effect, by the laws of the State of
California (excluding the choice-of-law rules thereof).
<PAGE>
IN WITNESS WHEREOF, this Agreement has been executed and delivered by or
on behalf of each of the undersigned.
INNOVACOM APPROVED AS TO FORM:
By: __________________________ HELLER, EHRMAN, WHITE
& McAULIFFE
Its: __________________________ By: _____________________________
L.J. Chris Martiniak
Attorneys for InnovaCom, Inc.
SCOTT THOROGOOD APPROVED AS TO FORM:
GIBSON, DUNN & CRUTCHER LLP
By: _____________________________
Jonathan C. Dickey
Attorneys for Scott Thorogood
Consent of Independent Auditors
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated April 8, 1999, relating to the
consolidated balance sheet of InnovaCom, Inc. and subsidiaries as of December
31, 1998 and the related statements of operations, stockholders' equity
(deficit), and cash flows for the years ended December 31, 1998 and 1997 and for
the period from March 3, 1993 (inception) to December 31, 1998, which report
appears in the December 31, 1998 annual report on Form 10-KSB of InnovaCom, Inc.
/s/HEIN +ASSOCIATES LLP
HEIN + ASSOCIATES LLP
Certified Public Accountants
Orange, California
June 22, 1999
