Exhibit 10.1
IN THE CIRCUIT COURT OF | ||||
THE FIFTEENTH JUDICIAL | ||||
CIRCUIT IN AND FOR PALM | ||||
BEACH COUNTY, FLORIDA | ||||
CASE NO. CA 02 5293 AB |
NODE COM, INC., a New Jersey
Corporation, andTQ WEST PALM, LLC,
a Florida Limited Liability Corporation,
Plaintiffs,
v.
SWITCH & DATA FL FOUR, LLC, a
Delaware Limited Liability Corporation;
SWITCH & DATA FACILITIES COMPANY,
LLC, a Delaware Limited Liability
Corporation;SWITCH & DATA FACILITIES
COMPANY, INC., a Delaware Corporation;
SWITCH & DATA HOLDINGS, INC., a
Delaware Corporation;JAMES F. LAVIN, and
a New Jersey Citizen;
Defendants.
CONFIDENTIAL COMPROMISE SETTLEMENT
AGREEMENT, RELEASE AND INDEMNITY AGREEMENT
This Confidential Compromise Settlement Agreement, Release of All Claims and Indemnity Agreement (“Agreement”) is made by and amongPlaintiffs, NODECOM, INC.,a New Jersey Corporation, andTQ WEST PALM, LLC, a Florida Limited Liability Corporation (hereinafterPlaintiffs) andDefendants, SWITCH AND DATA FLORIDA FOUR, LLC, a Delaware Limited Liability Company,SWITCH AND DATA FACILITIES COMPANY, LLC,a Delaware Limited Liability CompanySWITCH AND DATA HOLDINGS, INC., a Delaware Corporation, andSWITCH AND DATA FACILITIES COMPANY, INC., a Delaware Corporation, andJames F. Lavin, individually (hereinafterDefendants) (collectively “the Parties”, separately “a Party”) for the purpose of settling and
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releasing claims the parties might have against each other that were asserted, or that could have been asserted at any time prior to the date of this Agreement, whether known or unknown, including those related to all events, transactions, agreements, and/or contracts made the basis of the above-styled lawsuit.
RECITALS
1. | WHEREAS,Plaintiffs filed the civil action as styled above (the “Lawsuit”) againstDefendants seeking damages; |
2. | WHEREAS,EMILEE SUPPERS,Individually,JOSEPH SUPPERS,Individually, were formerly Plaintiffs in the above styled civil action; |
3. | WHEREAS,Defendants maintain that they were not liable in connection with the purchase of the Meridian Building or the lease or breach of the lease of the Meridian Building; |
4. | WHEREAS, the Lawsuit is the only cause of action filed byPlaintiffs againstDefendants currently pending; |
5. | WHEREAS,Defendants have filed a counterclaim for declaratory judgment and for attorneys’ fees; |
6. | WHEREAS, bona fide disputes and controversies exist between all the parties to the above-styled and numbered cause, both as to the liability, if any, and the amount of damages, if any; |
7. | WHEREAS,Plaintiffs, in consideration of the payment of monies and other agreements described in Exhibit 1 hereto and to induceDefendants to pay such monies, hereby agree to this Agreement on the terms and conditions stated herein; |
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8. | WHEREAS,Defendants, in consideration of the payment of monies and other agreements described herein, do hereby agree to this Agreement on the terms and conditions stated herein; and |
9. | WHEREAS,Plaintiffs andDefendants enter into this agreement with the intention of effectuating their desire to permanently compromise and settle any and all claims thatPlaintiffs may have or might acquire againstDefendants as a result of any future change in any law, or which could ever be asserted againstDefendants in the Lawsuit under either the Constitution, statutory laws or common laws of the State of Florida or any other state. |
AGREEMENT
NOW, THEREFORE, IN MUTUAL CONSIDERATION OF THE FOREGOING RECITALS AND THE PROMISES AND AGREEMENTS CONTAINED HEREIN, THE PARTIES TO THIS AGREEMENT HEREBY AGREE AS FOLLOWS:
General Release.
10. | In consideration for the promises described herein and for other good and valuable consideration,Plaintiffs, on behalf of themselves,andPlaintiffs’ partners, affiliated companies and entities, subsidiaries, agents, representatives, successors, predecessors, assigns, directors, officers, former and current employees, shareholders, heirs, beneficiaries, spouses and attorneys, individually and collectively, (including Emilee Suppers and Joe Suppers, Individually) hereby RELEASE, ACQUIT, AND DISCHARGE, forever and for all purposes, and in all respects,Defendants andDefendants’ past and present partners, limited partners, affiliated companies and entities, subsidiaries, agents, servants, representatives, affiliates, successors, predecessors, assigns, directors, officers, |
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former and current employees (including Patricia Higgins and Roy Dickey), shareholders, heirs, beneficiaries, spouses and attorneys, of and from any and all claims, demands, actions, causes of action, suits, costs, losses, damages, expenses, compensations, liabilities, and any other obligations of any kind or nature whatsoever, known or unknown, direct or consequential, foreseen or unforeseen, matured or unmatured, developed or undeveloped, concealed or disclosed, anticipated or unanticipated, fixed or contingent, and the consequences thereof, existing from the beginning of time through the Effective Date of this Agreement, including, but not limited to any claim arising from or relating to (1) the Lawsuit; (2) all claims, counterclaims and third-party claims by the Parties against each other that were or could have been brought in the Lawsuit or based upon the allegations contained in the Lawsuit; (3) any other attorneys’ fees or payments of any kind arising from or relating to any relationship between the Parties; (4) any act, omission, representation, recommendation, malfeasance or misfeasance by the Parties; and (5) all acts, omissions, occurrences, transactions, events, communications, or agreements related to the above-listed matters; provided, however, that nothing in this paragraph or Agreement releases, discharges or affects in any way the obligations provided for or created by this Agreement.Plaintiffs andDefendants expressly state that they intend this release to be as broad as possible so as to include any possible claim whatsoever without any exceptions or reservations. This Release shall be fully binding and a complete settlement between the parties to this Agreement and all parties represented by, formerly represented by, or claiming through such parties. |
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11. | In consideration for the promises described herein and for other good and valuable considerations,Defendantson behalf of themselves,andDefendants’ partners, affiliated companies and entities, subsidiaries, agents, representatives, successors, predecessors, assigns, directors, officers, former and current employees (including Patricia Higgins and Roy Dickey), shareholders, heirs, beneficiaries, all insurance carriers, individually and collectively, hereby RELEASE, ACQUIT, AND DISCHARGE, forever and for all purposes, and in all respects,Plaintiffs andPlaintiffs’ past and present partners, limited partners, affiliated companies and entities, subsidiaries, agents, servants, representatives, affiliates, successors, predecessors, assigns, directors, officers, former and current employees, shareholders, heirs, beneficiaries, spouses and attorneys (including Emilee Suppers and Joseph Suppers, Individually), of and from any and all claims, demands, actions, causes of action, suits, costs, losses, damages, expenses, compensations, liabilities, and any other obligations of any kind or nature whatsoever, known or unknown, direct or consequential, foreseen or unforeseen, matured or unmatured, developed or undeveloped, concealed or disclosed, anticipated or unanticipated, fixed or contingent, and the consequences thereof, existing from the beginning of time through the Effective Date of this Agreement, including, but not limited to any claim arising from or relating to (1) the Lawsuit; (2) all claims, counterclaims and third-party claims by the Parties against each other that were or could have been brought in the Lawsuit or based upon the allegations contained in the Lawsuit; (3) any other attorneys’ fees or payments of any kind arising from or relating to any relationship between the Parties; (4) any act, omission, |
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representation, recommendation, malfeasance or misfeasance by the Parties; and (5) all acts, omissions, occurrences, transactions, events, communications, or agreements related to the above-listed matters; provided, however, that nothing in this paragraph or Agreement releases, discharges or affects in any way the obligations provided for or created by this Agreement. |
12. | Plaintiffs andDefendants expressly state that they intend this release to be as broad as possible so as to include any possible claim whatsoever without any exceptions or reservations. This Release shall be fully binding and a complete settlement between the parties to this Agreement and all parties represented by, formerly represented by, or claiming through such parties. |
Settlement Funds.
13. | Defendantsagree to payPlaintiffs Three Million and no/100’s ($3,000,000.00) in full and final settlement of all claims. The settlement amount required to be pay under this agreement shall be received by wire transfer to the trust account of Walter V. Williams, P.C. on or before April 26, 2007. No warranty or representation of the tax consequences, if any, is made byDefendants. The Parties understand and agree that none of the settlement funds paid herein are on account of punitive or exemplary damages. All court costs are to be taxed against party incurring same. |
General Release and Assignment.
14. | Plaintiffshereby acknowledge and agree that this Agreement is a general release; andPlaintiffs further expressly waive and assume the risk of any and all claims for damages which exist as of this date, but of whichPlaintiffs do not |
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know or suspect to exist, whether through ignorance, oversight, error, negligence, incomplete discovery or otherwise, and which whether or not, if known, would materially affect the decision to enter into this Agreement.Plaintiffs further agree thatPlaintiffs have entered into this Agreement as a compromise of matters involving disputed issues of law and fact, andPlaintiffs assume the risk that facts or laws may be otherwise thanPlaintiffs believe. |
15. | Defendantshereby acknowledge and agree that this Agreement is a general release; andDefendants further expressly waive and assume the risk of any and all claims for damages which exist as of this date, but of whichDefendants do not know or suspect to exist, whether through ignorance, oversight, error, negligence, incomplete discovery or otherwise, and which whether or not, if known, would materially affect the decision to enter into this Agreement.Defendants further agree thatDefendants have entered into this Agreement as a compromise of matters involving disputed issues of law and fact, andDefendants assume the risk that facts or laws may be otherwise thanDefendants believe. |
16. | It is understood and agreed by the parties to this Agreement that this Agreement is a compromise of doubtful and disputed claims, and that entering this Agreement is not to be construed as admission of liability on the part of eitherPlaintiffs orDefendants by both of whom liability is expressly denied. |
17. | To the extent any claim by, or through, or on behalf ofPlaintiffs againstDefendants owned byPlaintiffs is not herein released, the same is assigned in full toDefendants. To the extent any claim by, or through, or on behalf ofDefendants againstPlaintiffs owned byDefendants is not herein released, the same is assigned in full toPlaintiffs. |
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Acknowledgment of Disputed Liability.
18. | Plaintiffsagree and acknowledge thatPlaintiffs does and will accept the consideration recited in this Agreement as a full and complete compromise of all claims whichPlaintiffs may have againstDefendants, liability of which is expressly denied byDefendants, and that neither the consideration specified in this Agreement nor the negotiations for this Agreement (including all statements and communications, oral or written, of any nature) by any party, their attorneys, agents or representatives, are admissions by them and that no past or present negligent act or omission or other wrongdoing may be implied by or inferred from such consideration or negotiations. |
19. | Defendantsagree and acknowledge thatDefendants do and will accept the consideration recited in this Agreement as a full and complete compromise of all claims whichDefendants may have againstPlaintiffs, liability of which is expressly denied byPlaintiffs, and that neither the consideration specified in this Agreement nor the negotiations for this Agreement (including all statements and communications, oral or written, of any nature) by any party, their attorneys, agents or representatives, are admissions by them and that no past or present negligent act or omission or other wrongdoing may be implied by or inferred from such consideration or negotiations. |
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Warranty of Capacity to Execute Agreement.
20. | Plaintiffs represent and warrant (a) the recitals set forth above are true and correct; (b) no other person or entity has, or has had, any interest in the claims, demands, obligations, or causes of action referred to in this Agreement; and (c) Plaintiffs have not sold, assigned, transferred, conveyed, or otherwise disposed of any claim, demands, obligations, or causes of action referred to in this Agreement. |
21. | Defendantsrepresent and warrant (a) the recitals set forth above are true and correct; (b) no other person or entity has or has had, any interest in the claims, demands, obligations, or causes of action referred to in this Agreement; and (c) Defendantshave not sold, assigned, transferred, conveyed, or otherwise disposed of any claim, demands, obligations, or causes of action referred to in this Agreement. |
Entire Agreement/Successors In Interest.
22. | This Agreement constitutes the entire agreement between the Parties with regard to the claims being released herein and shall be binding upon, and inure to the benefit of the executors, administrators, personal representatives, heirs, successors, and assigns of each. |
Disclaimer of Reliance.
23. | Plaintiffs expressly warrant and represent and do hereby state that no promise, assurance, representation, or agreement which is not herein expressed has been made toPlaintiffs in executing this Agreement and thatPlaintiffs are not relying upon any statement or representation ofDefendantsorDefendants’ |
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agents whether made before, after, or in the course of the Lawsuit or in the process of negotiating or finalizing the Agreement.Plaintiffs also expressly warrant and represent and do hereby state thatPlaintiffs are relying onPlaintiffs’ own judgment and that ofPlaintiffs’ own legal counsel in the Lawsuit in deciding to enter into the Agreement. |
24. | Defendantsexpressly warrant and represent and do hereby state that no promise, assurance, representation, or agreement which is not herein expressed has been made toDefendantsin executing this Agreement and thatDefendantsare not relying upon any statement or representation ofPlaintiffs orPlaintiffs’ agents whether made before, after, or in the course of the Lawsuit or in the process of negotiating or finalizing the Agreement.Defendantsalso expressly warrant and represent and do hereby state thatDefendants are relying onDefendants’own judgment and that of theDefendants’own legal counsel in the Lawsuit in deciding to enter into the Agreement. |
Representation of Comprehension of Document.
25. | In entering into this Agreement,Plaintiffs represents that (a) Plaintiffs have relied upon the legal advice of thePlaintiffs’ attorneys, who are the attorneys ofPlaintiffs’ own choice, and advice of any insurance or other professional asPlaintiffs orPlaintiffs’ attorneys may have deemed appropriate; (b) Plaintiffs have not relied upon the representations ofDefendantsorDefendants’attorneys, or any other person or entity released herein in evaluating any claim that is the subject of this Lawsuit or in deciding whether to accept this Settlement; (c) the terms of this Agreement have been carefully and completely |
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read byPlaintiffs; and (d) these terms are fully understood and voluntarily accepted byPlaintiffs. This Agreement shall become final, irrevocable and absolute upon its execution.Plaintiffs agree that the terms and provisions of this Agreement are not to be more strictly construed againstDefendantsorDefendants’agents or representatives than againstPlaintiffs, and it is the intention of all signing parties that this Agreement be construed as having the plain ordinary meaning of the terms used herein. |
26. | In entering into this Agreement,Defendantsrepresent that (a) Defendantshave relied upon the legal advice of theDefendants’attorneys, who are the attorneys ofDefendants’own choice, and advice of any insurance or other professional asDefendants orDefendants’attorneys may have deemed appropriate; (b) Defendantshave not relied upon the representations of thePlaintiffs orPlaintiffs’ attorneys, or any other person or entity released herein in evaluating any claim that is the subject of this Lawsuit or in deciding whether to accept this Settlement; (c) the terms of this Agreement have been carefully and completely read byDefendants; and (d) these terms are fully understood and voluntarily accepted byDefendants. This Agreement shall become final, irrevocable and absolute upon its execution.Defendantsagree that the terms and provisions of this Agreement are not to be more strictly construed againstPlaintiffs orPlaintiffs’ agents or representatives than againstDefendants, and it is the intention of all signing parties that this Agreement be construed as having the plain ordinary meaning of the terms used herein. |
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Governing Law.
27. | This Agreement is entered into in the State of Florida, and shall be construed in accordance with Florida Law. It is understood that the terms of this Agreement are contractual and not merely recital and that all paragraphs contained herein are material parts of the agreement between the Parties. The Parties agree that the exclusive venue for any claims involved under or over this agreement shall be West Palm Beach, Florida. |
Supplemental Documents.
28. | The Parties agree to cooperate and fully execute any and all supplementary documents and take all additional actions which may be necessary or appropriate to give full force and effect to the basic terms and intent of this Agreement, and which are not inconsistent with its terms, including securing dismissals with prejudice of (a) all existing claims againstDefendantsand (b) all existing claims againstPlaintiffs. |
Confidentiality.
The Parties agree to make commercially reasonable efforts to keep the terms of the settlement confidential subject to the duties and obligations of Switch & Data and in its present capacity as a public company and will not provide a copy of this Agreement nor pleadings, discovery produced or other materials provided or filed in the lawsuit to any third party including, but not limited to, newspapers or other press or for posting on any website except for (a) disclosure where its required under a legal duty or obligation to disclose certain terms (e.g., to the Internal Revenue Service or as a part of Switch &
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Data Facilities Company, Inc.’s filing requirements as a public company under the rules and regulations of the Securities and Exchange Commission (“SEC”) and the National Association of Securities Dealers, (“NASD”) including but not limited to a disclosure of the settlement through a Form 8-K filing with the SEC which may disclose the settlement amount) ), (b) disclosure to tax or financial consultants, or (c) disclosure with the prior written consent of the opposing party. . The obligations in this paragraph will be hereinafter referred to as the Confidentiality Obligations.
Indemnification
31. | Plaintiffs expressly agree to defend, indemnify and hold harmlessDefendantsagainst any and every future claim, lien, and expenses of every kind and nature, made againstDefendantsby, through, or on behalf ofPlaintiffs any part of which accrues prior to April 12, 2007. It is expressly understood that the indemnity and hold harmless agreements provided for herein are intended to indemnify and hold harmlessDefendantsfrom the consequences ofDefendants’own strict liability, negligence, or breach of warranty, whether that strict liability, negligence, or breach of warranty, is the sole or concurring cause of any injury, damage, claim, demand, cause of action, suit or liability. |
32. | Defendantsexpressly agree to defend, indemnify and hold harmlessPlaintiffs against any and every future claim, lien, and expenses of every kind and nature, made againstPlaintiffs by, through, or on behalf ofDefendantsany part of which accrues prior to April 12, 2007. It is expressly understood that the indemnity and hold harmless agreements provided for herein are intended to indemnify and hold harmlessPlaintiffs from the consequences ofPlaintiffs’ |
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own strict liability, negligence, or breach of warranty, whether that strict liability, negligence, or breach of warranty, is the sole or concurring cause of any injury, damage, claim, demand, cause of action, suit or liability. |
Effective Date.
33. | The Effective Date of this Agreement shall be April 13, 2007 (“Effective Date”). |
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Date: | April 26, 2007
| /s/ EMILEE SUPPERS
| ||||||
EMILEE SUPPERS,Individually | ||||||||
Date: | April 26, 2007
| /s/ JOSEPH SUPPERS
| ||||||
JOSEPH SUPPERS, Individually | ||||||||
Date: | April 26, 2007
| /s/ JOSEPH SUPPERS, President and Manager
| ||||||
NODECOM, INC., a New Jersey Corporation, andTQ WEST PALM, LLC, a Florida Limited Liability Corporation | ||||||||
By Its Authorized Representative, Joe Suppers | ||||||||
Date: | April 25, 2007
| /s/ CLAYTON MYNARD
| ||||||
SWITCH & DATA FLORIDA FOUR, LLC, a Delaware Limited Liability Company | ||||||||
By Its Authorized Representative: CLAYTON MYNARD | ||||||||
Date: | April 25, 2007
| /s/ CLAYTON MYNARD
| ||||||
SWITCH & DATA FACILITIES COMPANY, LLC,a Delaware Limited Liability Company | ||||||||
By Its Authorized Representative: CLAYTON MYNARD | ||||||||
Date: | April 25, 2007
| /s/ CLAYTON MYNARD
| ||||||
SWITCH & DATA HOLDINGS,INC.,a Delaware Corporation | ||||||||
By Its Authorized Representative: CLAYTON MYNARD |
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Date: | April 25, 2007
| /s/ CLAYTON MYNARD
| ||||||
SWITCH & DATA FACILITIESCOMPANY, INC., a Delaware Corporation | ||||||||
By Its Authorized Representative: CLAYTON MYNARD |
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