MUTUAL SETTLEMENT AND RELEASE AGREEMENT
EXHIBIT
10.2
MUTUAL
SETTLEMENT AND RELEASE AGREEMENT
This
Mutual Settlement and Release Agreement is entered into by and between Data
Center 101, LLC (hereinafter referred to as “Data Center”) and iBeam Solutions,
LLC (hereinafter referred to as “iBeam”) on or about December ,
2009.
RECITALS
A. WHEREAS, Data Center and iBeam
entered into a Lease Agreement on or about February 10, 2009; and
B.
B. WHEREAS, iBeam commenced an
action on or about July 15, 2009 in the Franklin County, Ohio Common Pleas Court
styled iBeam Solutions, LLC v. Data Center 101, LLC, being Case No.: 09CVH 07
10535 on the docket of said court alleging the February 10, 2009 contract was
void, that Data Center committed fraud, and also asking for punitive damages
from Data Center. Data Center filed a Counterclaim on July 20, 2009 alleging,
inter alia, that iBeam breached the contract in question.
C. WHEREAS, the parties to this
Agreement desire to enter into a mutually beneficial settlement to provide for
certain payments in full settlement and discharge of all claims which are or
might have been the subject of the Complaint in Case No.: 09CVH 07 10535 in the
Franklin County, Ohio Common Pleas Court on the terms and conditions set forth
herein.
AGREEMENT
NOW THEREFORE, in
consideration of the mutual promises, covenants, and agreements set forth in
this Agreement and other good and valuable consideration which the Parties have
received and agree is sufficient, the Parties covenant and agree as
follows:
1. FOR
AND IN CONSIDERATION of the payment of all sums paid to date by iBeam to Data
Center in whatever amount and for whatever purpose, all of which shall be
retained by Data Center, and on behalf of all and each of its heirs,
beneficiaries, next of kin, executors, administrators, successors and assigns of
Data Center, Data Center hereby releases and forever discharges iBeam, and all
related and affiliated companies and all other persons, individuals, firms,
organizations, corporations, entities, associations or governments in them, or
their executors, administrators, successors, assigns, directors, officers,
agents, employees and insurers, and each of them, of and from any and all
claims, demands, damages, actions and causes of action of every kind, known or
unknown, including, without limitation, any and all claims for damages owed to
Data Center and/or all related and affiliated companies, agents, employees,
successors and assigns arising out of Data Center’s contract with iBeam, and
including but not limited to, those claims which are pleaded or could have been
pleaded in the Franklin County, Ohio Common Pleas Court, Case 09CVH 07 10535,
entitled iBeam Solutions, LLC v. Data Center 101, LLC.
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2. For
and in consideration of the promises made herein, on behalf of iBeam, and on
behalf of all and each of its heirs, beneficiaries, next of kin, executors,
administrators, insurers, successors, and assigns of iBeam, iBeam hereby
releases and forever discharges Data Center and all related and affiliated
companies and all other persons, individuals, firms, organizations,
corporations, entities, associations or governments in them, or their executors,
administrators, successors, assigns, directors, officers, agents, employees and
insurers, and each of them, of and from any and all claims, demands, damages,
actions and causes of action of every kind, known or unknown, including without
limitation, any and all claims for damages owed to iBeam and/or all related and
affiliated companies, agents, employees, successors and assigns, arising out of
iBeam’s contract with Data Center, and including but not limited to, those
claims which are pleaded or could have been pleaded in Franklin County, Ohio
Common Pleas Court, Case No.: 09CVH 07 10535 entitled iBeam Solutions, LLC v.
Data Center 101, LLC.
3. Data
Center and iBeam each hereby certify that the relationship listed below the
respective signatures are true and correct.
4. In
further consideration of the sums mentioned above and promises made as part of
this Agreement, the undersigned agree as follows:
A. The
sum set forth above and promises made herein are the entire and only
consideration of this Mutual Settlement and Release Agreement and each party
shall bear his, her, or its own attorneys’ fees, costs and expenses. The court
costs incurred in the Franklin County, Ohio Common Pleas Court, if any, are to
be paid by the party that incurred them.
B. It
is intended by iBeam and Data Center, and each of them, that this Mutual
Settlement and Release Agreement shall be complete and shall not be subject to
any claim of mistake of fact or law by Data Center or iBeam, and that it
expresses a full and complete settlement of liability claimed and denied, as
against iBeam or Data Center and, regardless of the adequacy or inadequacy of
the amount paid and/or other consideration referred to herein, this Mutual
Settlement and Release Agreement is intended to avoid litigation and to be final
and complete.
C. This
Mutual Settlement and Release Agreement is the result of a compromise of
disputed claims and shall never at any time for any purpose be considered as an
admission of liability or responsibility of the parties hereby released, who
continue to deny such liability and to disclaim such
responsibility.
D. A
division, if any, of the sums mentioned in this Mutual Settlement and Release
Agreement between Data Center or iBeam and/or anyone else shall in no way affect
the validity of this Mutual Settlement and Release Agreement.
E. This
settlement is intended to, and Data Center and iBeam warrant that they will,
dispose of all liability of each other, and each of them, their heirs and
assigns, and to any other person or entity, that might now or in the future have
a claim as a result of any damages to or claims made by Data Center and/or
iBeam.
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5. Concurrently
with the execution of this Mutual Settlement and Release Agreement, counsel for
Data Center has delivered to counsel for iBeam a Dismissal Entry with prejudice
of the actions described in paragraphs “B” and “1” above and all claims and
counterclaims that are a part thereof. iBeam has authorized its attorney(s) to
execute said Dismissal Entry on its behalf and hereby authorizes counsel for
Data Center to file said Dismissal Entry with the Court and enter same as a
matter of record.
6. Data
Center agrees and acknowledges that it will accept payment of the sums as
specified in this Mutual Settlement and Release Agreement as a full and complete
compromise of matters involving disputed issues; that neither payment of the
sums by iBeam or its insurers, or its assignee, nor the negotiations for this
settlement (including all statements, admissions or communications) by iBeam and
its insurers and its attorneys or representatives shall be considered admissions
by them; and that no past or present wrongdoing on the part of iBeam shall be
implied by such payment or negotiations.
7. iBeam
agrees and acknowledges that it will accept payment of the sums as specified in
this Mutual Settlement and Release Agreement as a full and complete compromise
of matters involving disputed issues; that neither payment of the sums by Data
Center or its insurers, or its assignee, nor the negotiations for this
settlement (including all statements, admissions or communications) by Data
Center and its insurers and its attorneys or representatives shall be considered
admissions by them; and that no past or present wrongdoing on the part of Data
Center shall be implied by such payment or negotiations.
8. This
Mutual Settlement and Release Agreement contains the entire agreement between
and among the parties hereto with regard to the matters set forth in it and
shall be binding upon and inure to the benefit of the parties hereto, jointly
and severally, and the executors, administrators, personal representatives,
heirs, successors and assigns of each.
9. This
Mutual Settlement and Release Agreement is entered into in the State of Ohio and
shall be construed and interpreted in accordance with its laws.
10. For
the purpose of this Mutual Settlement and Release Agreement, the masculine,
feminine and neuter gender, in the singular and plural number, shall be deemed
to include the others whenever the context so indicates.
11. The
Parties hereto agree that confidentiality about the terms of this Agreement and
the payments made in settlement are an essential condition to, and an integral
part of, this Agreement. The Parties agree to keep and hold confidential the
terms of this Agreement and the payment made in settlement and shall not
publicize, communicate or disclose to any person, corporation or entity any
information concerning the terms of this Agreement and the payments made in
settlement unless and except as required by law or authorized in advance by a
court of competent jurisdiction. Notwithstanding the provisions of this
Agreement, the Parties may disclose the amount of the settlement to their
accountants and auditors if and only to the extent required for financial
accounting purposes. Said accountants and auditors shall be bound by the
confidentiality requirements of this Agreement. This Agreement shall be deemed
to be a
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confidential
document. Its contents shall not be revealed or disclosed to any persons or
entities except to their legal counsel and as may be required by
law.
12. In
entering into this Mutual Settlement and Release Agreement, iBeam represents
that it has relied upon the advice of its attorney(s), who are attorney(s) of
its own choice, and that the terms of this Mutual Settlement and Release
Agreement have been completely read and explained to them by its attorney(s),
and that those terms are fully understood and voluntarily accepted by
same.
13. In
entering into this Mutual Settlement and Release Agreement, Data Center
represents that it has relied upon the advice of its attorney(s), who are
attorney(s) of its own choice, and that the terms of this Mutual Settlement and
Release Agreement have been completely read and explained to them by its
attorney(s), and that those terms are fully understood and voluntarily accepted
by same.
14. All
parties agree to cooperate fully and to execute any and all supplementary
documents and to take all additional actions that be necessary or appropriate to
give full force and effect to the basic terms and intent of this Mutual
Settlement Agreement and Release and which are not inconsistent with its
terms.
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Data
Center 101, LLC
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Date:
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By:
Xxxxxx X. Xxxxxxxx
Its:
Secretary/Treasurer
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STATE
OF OHIO
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:
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:
SS:
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COUNTY
OF FRANKLIN
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On this
______ day of _____________, 2009, before me, a Notary Public, personally
appeared Xxxxxx X. Xxxxxxxx, as a duly authorized agent and representative of
Data Center 101, LLC to me known to be the person described herein, and who
executed the foregoing instrument and she acknowledged that she voluntarily
executed same.
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My
Commission Expires:
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Notary
Public
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iBeam
Solutions, LLC
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Date:
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By:
Its:
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STATE
OF OHIO
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:
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:
SS:
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COUNTY
OF XXXXXXXX
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:
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On this
______ day of _____________, 2009, before me, a Notary Public, personally
appeared ________________, as a duly authorized agent and representative of
iBeam Solutions, LLC to me known to be the person described herein, and who
executed the foregoing instrument and she acknowledged that she voluntarily
executed same.
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My
Commission Expires:
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Notary
Public
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