liabilities, controversies, demands, actions, complaints, suits, causes
of action of any kind and nature whatsoever (including, without limitation,
those sounding in contract or tort, loss of profits, interference with business
contracts, interference with contractual relations, damage to business
reputation, increased cost of doing business, interference with expectancy of
business advantage, in each case, current or prospective), judgments, damages,
executions, obligations, contracts, agreements, covenants, controversies,
promises, accounts, bonds, bills, debts, dues, sums of
8
money, expenses, specialties, fees and costs of any kind and nature whatsoever
(whether direct, indirect, consequential, incidental or otherwise), known or
unknown, suspected or unsuspected, in their own right or derivatively, in law or
in equity, which any of them ever had, now has, or hereafter shall or may have,
against any other of them, on account of, arising from, relating to, or in
connection with the Contracts (including, without limitation, any act or
omission or other matter or thing whatsoever arising from, relating to, or in
connection with the negotiation, execution and performance of the Contracts) and
occurring prior to and including the Effective Date, provided, however, that the
foregoing shall not release TEM from any of its obligations under this
Settlement Agreement.
(B)
SUBJECT TO SECTION 2.2, EACH OF TEM, FOR ITSELF AND, TO THE EXTENT IT HAS
THE LEGAL ABILITY TO DO SO, ON BEHALF OF ITS FORMER, PRESENT AND FUTURE
OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, AFFILIATES, ASSIGNS AND PREDECESSORS AND
SUCCESSORS IN INTEREST DO HEREBY AND FOREVER WAIVE, RELEASE AND DISCHARGE EACH
OF NEWCOMM AND THE OTHER STOCKHOLDERS AND THEIR RESPECTIVE AFFILIATES, OFFICERS,
DIRECTORS, AGENTS, EMPLOYEES, ASSIGNS AND PREDECESSORS AND SUCCESSORS IN
INTEREST FROM ANY AND ALL LOSSES, CLAIMS, LIABILITIES, CONTROVERSIES, DEMANDS,
ACTIONS, COMPLAINTS, SUITS, CAUSES OF ACTION OF ANY KIND AND NATURE WHATSOEVER
(INCLUDING, WITHOUT LIMITATION, THOSE SOUNDING IN CONTRACT OR TORT, LOSS OF
PROFITS, INTERFERENCE WITH BUSINESS CONTRACTS, INTERFERENCE WITH CONTRACTUAL
RELATIONS, DAMAGE TO BUSINESS REPUTATION, INCREASED COST OF DOING BUSINESS,
INTERFERENCE WITH EXPECTANCY OF BUSINESS ADVANTAGE, IN EACH CASE, CURRENT OR
PROSPECTIVE), JUDGMENTS, DAMAGES, EXECUTIONS, OBLIGATIONS, CONTRACTS,
AGREEMENTS, COVENANTS, CONTROVERSIES, PROMISES, ACCOUNTS, BONDS, BILLS, DEBTS,
DUES, SUMS OF MONEY, EXPENSES, SPECIALTIES, FEES AND COSTS OF ANY KIND AND
NATURE WHATSOEVER (WHETHER DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR
OTHERWISE), KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, IN THEIR OWN RIGHT OR
DERIVATIVELY, IN LAW OR IN EQUITY, WHICH ANY OF THEM EVER HAD, NOW HAS, OR
HEREAFTER SHALL OR MAY HAVE, AGAINST ANY OTHER OF THEM, ON ACCOUNT OF, ARISING
FROM, RELATING TO, OR IN CONNECTION WITH THE CONTRACTS (INCLUDING, WITHOUT
LIMITATION, ANY ACT OR OMISSION OR OTHER MATTER OR THING WHATSOEVER ARISING
FROM, RELATING TO, OR IN CONNECTION WITH THE NEGOTIATION, EXECUTION AND
PERFORMANCE OF THE CONTRACTS) AND OCCURRING PRIOR TO AND INCLUDING SEPTEMBER 30,
2004, PROVIDED, HOWEVER, THAT THE FOREGOING SHALL NOT RELEASE NEWCOMM AND THE
OTHER STOCKHOLDERS FROM ANY OF THEIR RESPECTIVE OBLIGATIONS UNDER THIS
SETTLEMENT AGREEMENT.
(C)
THE CONSEQUENCES OF THE FOREGOING WAIVER, RELEASE AND DISCHARGE PROVISIONS
HAVE BEEN EXPLAINED BY EACH OF THE PARTIES' RESPECTIVE COUNSEL.
EACH OF