ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT, FINANCIAL STATEMENT CONFIDENTIAL SETTLEMENT AGREEMENT & RELEASE
Exhibit
10.1
ENTRY
INTO A MATERIAL DEFINITIVE AGREEMENT, FINANCIAL STATEMENT
CONFIDENTIAL
SETTLEMENT AGREEMENT & RELEASE
This
Confidential Settlement Agreement
& Release (“Agreement”) is entered into as of this 13th day of September,
2007, by and among Yahoo! Inc. (“Yahoo!”), and Rapid Link, Inc. formerly known
as Dial-Thru International Corporation (“Rapid Link”), which are collectively
referred to herein as the “Parties.”
The
Parties enter into this Agreement
with reference and agree to the following:
RECITALS
Whereas,
Yahoo! is a
Delaware corporation with its principal place of business in
California.
Whereas,
Rapid Link,
Inc. is a Delaware corporation with its principal place of business in
California.
Whereas,
Rapid Link,
Inc. was formerly known as Dial-Thru International Corporation.
Whereas,
there is a
lawsuit pending in Superior Court of California, County of Los Angeles (Case
No.
SC 087271) in which Rapid Link has filed a complaint, styled Dial-Thru
International Corporation v. Yahoo! Inc. et al., against Yahoo!, along with
additional defendants that have separately settled all claims with Rapid
Link,
Inc. / Dial-Thru International Corporation, for Breach of Contract and Unjust
Enrichment (“the Action”).
Whereas,
on August 30,
2007, the Parties attended a Mandatory Settlement Conference before the Xxx.
Xxxx X. Xxxxxxxxx.
Whereas,
without any
party conceding the correctness of the position of any other party and in
order
to avoid the costs and burden of further litigation, without any admission
of
wrongdoing or liability, the Parties hereby agree to fully and finally settle
and conclude any and all disputes between them fully, finally and completely
on
the following terms.
NOW
THEREFORE, for and
in consideration of the mutual promises, covenants, releases and representations
set forth herein, and for other good and valuable consideration, the receipt
of
which is hereby acknowledged, each of the undersigned parties agrees as
follows:
CONFIDENTIAL
SETTLEMENT
AGREEMENT
& RELEASE
TERMS
AND CONDITIONS
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1.
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PAYMENT
TO RAPID LINK
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Yahoo!
shall pay Rapid Link the amount of $475,000 in one lump sum payment
within ten (10) days of the execution of this agreement. The payment
shall be made via wire transfer to the trust account of Xxxxxx X. Xxxxxxxx,
who
is counsel of record for Rapid Link in the Action.
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2.
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DISMISSAL
WITH PREJUDICE BY RAPID
LINK
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Within
three (3) days of receipt of the payment referenced in paragraph 1 of this
Agreement, Rapid Link shall execute and file by and on behalf of all plaintiffs
in the Action, including Dial-Thru International Corporation, a Dismissal
with
Prejudice of its Complaint in the Action, in the Superior Court of California,
County of Los Angeles, against Yahoo! (Case No. SC 087271), and shall mail
a
copy of the filed Dismissal to Yahoo!’s counsel.
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3.
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MUTUAL
RELEASES
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Rapid
Link, Inc., formerly known as Dial-Thru International Corporation, on behalf
of
itself and Dial-Thru International Corporation, and each of its past, present,
and future partners, attorneys, administrators, agents, trustees, joint
venturers, parents, assigns, successors, predecessors, affiliated companies,
trusts, officers, directors, employees, representatives, agents, insurers,
and
all those claiming by, through or under them, on one hand, and Yahoo! Inc.
and
its past, present, and future partners, attorneys, administrators, agents,
trustees, joint venturers, parents, assigns, successors, predecessors,
affiliated companies, trusts, officers, directors, employees, representatives,
agents, insurers, and all those claiming by, through or under them, on the
other
hand, hereby mutually fully release, waive and forever discharge each other,
their past, present, and future partners, attorneys, administrators, agents,
trustees, joint venturers, parents, assigns, successors, predecessors,
affiliated companies, trusts, officers, directors, employees, representatives,
agents, insurers, and all those claiming by, through or under them, from
any and
all past, present and future obligations, promises, duties, claims, demands,
liens, warranties, costs, fees, expenses, damages, actions, causes of action,
suits in law or in equity, or for contribution, indemnity and/or other action,
conduct or, omission arising out of or related to any relationship between
the
parties and any and all claims, events or incidents asserted or which could
have
been asserted in the Action, whether now known or unknown.
CONFIDENTIAL
SETTLEMENT
AGREEMENT
& RELEASE
1
It
is the intention of the Parties to reserve no past, present or future rights,
benefits, obligations, promises, duties, claims, demands, liens, warranties,
costs, fees, expenses, damages, actions, causes of action, suits in law or
in
equity, or for contribution or indemnity in any way arising out of or relating
to the Action.
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4.
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CIVIL
CODE SECTION 1542 WAIVER
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With
respect to the matters released in paragraph 3, the Parties hereby expressly
waive all rights under the provisions of Section 1542 of the Civil Code of
the
State of California and any similar rights in any state or territory or under
any similar statute or regulation of the United States or any of its
agencies. Section 1542 of this California Civil Code reads as
follows:
A
general release does not extend to claims which the creditor does not know
or
suspect to exist in his or her favor at the time of executing the release,
which
if known by him or her must have materially affected his or her
settlement with the debtor.
Notwithstanding
the provisions of Section 1542, and for the purpose of implementing a full
and
complete release and discharge, Yahoo! and Rapid Link expressly acknowledge
that
this Agreement is intended to include in its effect, without limitation,
all
claims of whatever kind arising out of or related to any matters existing
as of
date of this Agreement, whether known or unknown, and that this Agreement
extinguishes all such claims.
CONFIDENTIAL
SETTLEMENT
AGREEMENT
& RELEASE
2
In
executing this Release, the Parties each acknowledge that each party
has read this Agreement, that each has discussed it thoroughly with its
attorneys and that each voluntarily waives and relinquishes any and all claims
of any kind, known or unknown, existing as of the date of this Agreement,
and
that each party voluntarily waives and relinquishes the provisions of Section
1542 of the California Civil Code.
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5.
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BEARING
OWN ATTORNEYS' FEES &
COSTS
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Each
of the Parties shall bear its own
respective attorneys’ fees and costs in connection with the Action.
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6.
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COVENANT
NOT TO XXX
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Rapid
Link and Yahoo each covenants and
agrees never to commence, in any way, or prosecute any action or any other
proceeding based in whole or in part upon claims, demands, debts, judgments,
causes of action, obligations, damages and liabilities, of any nature
whatsoever, released herein, except to the extent necessary to enforce the
terms
of this Agreement.
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7.
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CONSULTATION
WITH COUNSEL
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The
Parties acknowledge and represent
that each of them have been given an opportunity to consult with, and has
been
represented by and has consulted with, an attorney of its own choice in
connection with the execution of this Agreement, and has relied upon the
advice
of such attorney in executing this Agreement.
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8.
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BINDING
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The
provisions of this Agreement shall
inure to the benefit of, and shall be binding upon the Parties, and their
respective partners, attorneys, administrators, agents, trustees, joint
venturers, parents, successors, predecessors, assigns, affiliated companies,
trusts, officers, directors, employees, representatives, agents, insurers,
and
all those claiming by, through or under them.
CONFIDENTIAL
SETTLEMENT
AGREEMENT
& RELEASE
3
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9.
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ENTIRE
AGREEMENT
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This
Agreement constitutes an integration of the entire understanding and agreement
of the Parties with respect to the subject matter hereof. Any
representations, warranties, promises, or conditions, whether written or
oral,
not specifically and expressly incorporated in this Agreement, shall not
be
binding on any of the Parties, and each of the Parties acknowledge that they
have not relied, in entering into this Agreement, on any representation,
warranty, promise or condition not specifically and expressly set forth in
this
Agreement. When fully executed, this Settlement Agreement supersedes
any other earlier or contemporaneous agreements, communications, or discussions
between the Parties, or any of them, which shall be of no force or
effect.
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10.
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ASSUMPTION
OF RISK AND DIFFERENCES IN
FACT
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Other
than representations and
warranties made herein, each of the Parties acknowledges that if the facts
with
respect to which this Agreement is executed are found hereafter to be different
from what it now believes those facts to be, each expressly accepts and assumes
the risk of such possible differences and agrees that this Agreement shall
be,
and shall remain, effective, notwithstanding such differences.
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11.
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AMENDMENTS
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The
Parties agree that any amendments
or modifications to this Agreement shall be deemed null and void unless such
amendments and modifications are in writing, specifically refer to this
Agreement and are signed by authorized representatives of all
Parties.
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12.
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ATTORNEYS'
FEES FOR ENFORCEMENT
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If
any action or legal proceeding is
instituted by any party hereto to enforce the terms of this Agreement, the
prevailing party therein shall recover reasonable attorneys’ fees and costs in
connection with such action or proceeding.
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13.
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AUTHORITY
TO EXECUTE
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The
individuals executing this
Agreement represent and warrant that they are unconditionally authorized
to
execute this agreement on behalf of each respective party. The
individual executing this Agreement for Rapid Link specifically warrants
that he
has been unconditionally authorized by the Board of Directors of Rapid Link,
Inc. to execute this agreement on behalf of the company Rapid Link, Inc formerly
known as Dial-Thru International Corporation.
CONFIDENTIAL
SETTLEMENT
AGREEMENT
& RELEASE
4
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14.
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COUNTERPARTS
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This
Agreement may be executed in
multiple counterparts, each of which when solely executed shall be deemed
an
original, but all which counterparts together shall constitute one and the
same
instrument.
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15.
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SEVERABILITY
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In
the event that any provision of this
Agreement is determined to be illegal or unenforceable, such determination
shall
not affect the validity or enforceability of the remaining provisions hereof,
all of which shall remain in full force and effect.
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16.
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CLAIMS
NOT ASSIGNED
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Rapid
Link warrants that as of the date
of this Confidential Settlement and Release, it is the sole owner and holder
of
the claims asserted in the complaint in the Action.
The
Parties represent and warrant that
they have not previously sold, assigned, transferred, conveyed or otherwise
disposed of any claim, demand or cause of action released in this
Agreement.
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17.
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ENFORCEMENT
OF THIS AGREEMENT
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This
agreement may be enforced by any
party hereto by a motion under Code of Civil Procedure section 664.6 or by
any
other procedure permitted by law in the Superior Court of Los Angeles
County. This Agreement and any claims or disputes arising hereunder
shall be governed by and construed in accordance with the laws of the State
of
California.
CONFIDENTIAL
SETTLEMENT
AGREEMENT
& RELEASE
5
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18.
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CONFIDENTIALITY
OF AGREEMENT
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The
Parties agree that the fact of this
Agreement and the terms of this Agreement including any numbers or sums
due or
payable under the Agreement, and any discussions or negotiations relating
thereto, and/or, any and all matters raised in and related to the Action,
shall
be considered strictly confidential and shall not be disclosed by the Parties
or
their attorneys or agents to any person or entity not named as a Party
herein. Neither the Parties, their agents or attorneys shall
communicate to any other person , including but not limited to any wire
service,
newspaper, radio, Internet, website, webpage, blog, message board or television
reporter or any other media representative including any legal article,
legal
periodical, journal or case/settlement gathering source or any other person
or
entity, verbally or by nonverbal means, directly or indirectly, the fact
of a
settlement between the parties, the existence of this Agreement or its
terms and
conditions or any of the facts or information relating to any of the claims
released herein. Subject to the foregoing, the Parties may disclose
the Agreement to: (a) as necessary to officers, board members or
personnel for compliance and implementation of the terms of the Agreement;
or
(b) to the Parties’ accountants, attorneys, tax advisers or investors to whom
disclosure is necessary. To the extent that a disclosure must be made
in SEC filings, only that information which is necessary to comply with
SEC
requirements may be disclosed. The Parties, their agents or attorneys
agree that they will not publicize or refer to any SEC filings that discuss
the
settlement and that they will respond to any inquiry relating to the settlement
agreement or any of the claims released herein with “no
comment.” The fact that information regarding the settlement may be
disclosed in SEC filings for the limited purpose of complying with SEC
requirements imposed by law does not alter the Parties’ obligation to keep the
fact and the terms of this Agreement strictly confidential. For this
reason, any comment regarding any SEC disclosure, other than a required
response
to a government entity, will be considered a breach of this
Agreement. If either Party is served with valid legal process seeking
the production of this Agreement, prior to producing this Agreement the
Party
served with the valid legal process will provide 10 days written notice
to the
other Party to the Agreement.
The
Parties agree that this
confidentiality provision is waived for purposes of enforcing this agreement
as
set forth above in section 17.
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19.
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NO
ADMISSION OF LIABILITY
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The
Parties acknowledge and agree that the settlement contained in this Agreement
is
the result of compromise between the Parties and shall never at any time
or for
any purpose be considered as an admission of liability, breach or responsibility
on the part of any party released hereby.
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20.
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NEUTRAL
INTERPRETATION
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In
any
action to interpret or construe the terms of this Agreement, this Agreement
shall be considered the product of negotiation by and among the Parties
hereto. No clause or provision shall be interpreted more strongly in
favor of or against one party or the other, based upon the source of the
draftsmanship, but shall be interpreted in a neutral manner.
CONFIDENTIAL
SETTLEMENT
AGREEMENT
& RELEASE
6
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21.
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HEADINGS
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The
headings within this Agreement are
for the purpose of reference only and shall not limit or otherwise affect
any
terms of this Agreement.
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22.
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ACKNOWLEDGMENT
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EACH
PERSON WHO SIGNS THIS AGREEMENT
REPRESENTS AND WARRANTS THAT HE OR SHE: HAS CAREFULLY READ AND FULLY UNDERSTANDS
THIS AGREEMENT AND ITS FINAL AND BINDING EFFECT; HAS BEEN AFFORDED SUFFICIENT
TIME AND OPPORTUNITY TO REVIEW THIS AGREEMENT WITH ADVISORS OR ATTORNEYS
OF HIS,
HER, OR ITS CHOICE; HAS HAD AN OPPORTUNITY TO NEGOTIATE WITH REGARD TO THE
TERMS
OF THIS AGREEMENT; IS FULLY COMPETENT TO MANAGE HIS, HER, OR ITS OWN BUSINESS
AFFAIRS AND TO ENTER INTO OR SIGN THIS AGREEMENT; HAS SIGNED THIS AGREEMENT
KNOWINGLY, FREELY AND VOLUNTARILY; AND THAT THE ONLY PROMISES MADE TO INDUCE
HIM, HER OR IT TO ENTER INTO THIS AGREEMENT AND RELEASE ARE THOSE STATED
HEREIN.
YAHOO!,
INC.
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Signed:
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Title:
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RAPID
LINK, INC. Formerly Known As
DIAL-THRU
INTERNATIONAL CORPORATION
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Signed:
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Title:
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CONFIDENTIAL
SETTLEMENT
AGREEMENT
& RELEASE
7
