EXHIBIT 10.37 XXXXXXXX X. XXXXXXXX SETTLEMENT AGREEMENT
SETTLEMENT AGREEMENT
This Settlement Agreement and Release is entered into this day of 24 day of
June 1999 by and between Xxxxxxxx X. Xxxxxxxx ("Xxxxxxxx'), and American
Internet Technical Center ("American Internet").
WITNESSETH:
WHEREAS, the parties are involved in a dispute which is the subject
maker of certain litigation in the Cuyahoga County Court of Common Pleas styled
Xxxxxxxx X. Xxxxxxxx v USA Cellular, et al., designated as Case No. 355845 (the
"Lawsuit").
WHEREAS, Xxxxxxxx alleges that American Internet sent unauthorized
business solicitations via facsimile to Xxxxxxxx.
WHEREAS, Xxxxxxxx alleges that the facsimiles violate 47 U.S.C. 227(b)
(1)(C).
WHEREAS, American Internet disputes Benjamin's allegations.
WHEREAS, the Defendant American Internet debuts all liability alleged
in the Plaintiff' s Complaint and the Plaintiff and Defendant American Internet
agree that this Settlement Agreement does not effect the status of the denials
by Defendant American Internet.
WHEREAS, Xxxxxxxx and American Internet wish to amicably settle all
claims and disputes between them regarding the lawsuit and anything relating to
the facsimiles delivered to Xxxxxxxx by
325
American Internet.
NOW, THEREFORE:, it is the desire of Xxxxxxxx and American Internet to
state in writing the details of their agreements. For money paid and received
and other valuable consideration between the parties, it is mutually agreed as
follows:
1. American Internet agrees to pay Xxxxxxxx $7,500.00 ("Settlement Sum")
within seven (7) days of the date of the execution of this Settlement Agreement
and Release, and upon receipt of the Settlement Sum the Plaintiff shall dismiss
with prejudice the action as against Defendant American Internet.
2. The Settlement Sum shall be in full satisfaction of Benjamin's claims arising
out of the lawsuit.
3. In consideration of the terms stated above, Xxxxxxxx does hereby for
himself, his heirs, executors, administrators, successors, agents, assigns,
insurers, and attorneys, releases and forever discharges American Internet, its
executors, administrators, successors, subsidiaries and parent companies,
affiliates, and respective past and present officers, directors, agents,
successor assigns, insurers, attorneys, and employees of those corporations and
their predecessors and successor companies, and assigns, all of which are
included collectively or individually in the defined term "American Internet,"
from all debts, claims, demands, damages, actions, causes of action,
controversies, costs, obligations, lawsuits and liabilities whatsoever, past or
present, both known and unknown, in law or equity, from the beginning of time to
the date of the execution of this Settlement Agreement and Release and
particularly, without limiting the generality of the foregoing, all matters
relating to the Lawsuit, and the facsimiles delivered from American Internet to
Xxxxxxxx.
4. In consideration of the terns stated above, American Internet does
hereby for itself, its executors, administrators, successors, its subsidiaries
and parent companies,, its affiliates, and their respective past and present
officers, directors, agents, successor assigns, insurers attorneys, and
employees of those corporations and its predecessors and successor companies,
and assigns, releases and forever discharges Xxxxxxxx. its executors,
administrators, successors,, agents, insurers and attorneys, and assigns, from
all debts, claims, demands, damages, actions, causes of action, controversies,
costs, obligations, lawsuits and liabilities whatsoever, past or present, both
known and unknown, in law or equity, from the beginning of time to the date of
the execution of this Settlement Agreement and Release and particularly, without
limiting the generality of the foregoing, all matters relating to the Lawsuit
and the facsimiles delivered from American Internet to Xxxxxxxx.
5. This Settlement Agreement and Release constitutes the complete and
exclusive agreement of the parties and settlement of claims regarding the
Lawsuit, and anything relating to the delivery of facsimiles to Xxxxxxxx from
American Internet.
6. The terms of this Settlement Agreement and Release may not be modified
except in writing and signed by all the parties.
326
6. The rights and obligations of the parties hereto and the interpretation
of this Settlement Agreement and Release shall be governed by the laws of the
State of Ohio. Cuyahoga County shall be the designated venue for any issue,
dispute, cause of action, or any other matter, uncles or arising out of this
Settlement Agreement and Release.
7. Except where otherwise required by the context, words of any gender used
herein shall be deemed to include any and all genders and the singular and
plural shall be interchangeable.
8. If any term or provision of this Settlement Agreement and Release or any
application thereof shall be invalid or unenforceable, such term or provision
shall be deemed to be severed and the remainder of this Settlement Agreement and
Release and any other application of such term or provision shall not be
affected or invalidated thereby.
9. The individuals who have signed this Settlement Agreement and Release
represent that they have full authority to bind the parties herein and an
understanding of all of the terms of this Settlement Agreement and Release.
10 The parties hereto represent that in reaching this Settlement Agreement
and Release that they have been represented by legal counsel and received legal
advice as to their respective rights.
11. Confidentiality. All information regarding American Internet and
Xxxxxxxx Xxxxxxxx obtained in the course of this litigation not made a part of
the public record and all the terms and conditions of the settlement and this
Agreement, including all demands and offers and the contents of all discussions
preceding settlement and the signing thereof, are and will be confidential; and
the undersigned agree not to disclose any of that information, terms and
conditions, demands and offers; and neither the undersigned nor the agent nor
representative of any of them may or will disclose any of the confidential
information, unless given permission in writing from all signatories to the
Agreement.
IN WITNESS WHEREOF, the parties have hereunto affixed their signatures
on the date and at the place first written above.
SIGNED AND ACKNOWLEDGED:
XXXXXXXX X. XXXXXXXX
_______________________________ By: Xxxxxxxx X. Xxxxxxxx
_______________________________ Date: ________________________
327
AMERICAN INTERNET TECHNICAL CENTER
_______________________________ By: J. Xxxxx Xxxxxxx
_______________________________ Date:
STATE OF OHIO )
COUNTY OF _______ ) SS:
SWORN to and subscribed in my presence this _ day of _______, 1999 by
Xxxxxxxx X. Xxxxxxxx, who acknowledges that this was his free and authorized act
and deed.
-------------------------
Notary Public
STATE OF FLORIDA )
COUNTY OF __________) SS:
SWORN to and subscribed in my presence this ___ day of _____ , 1999 by
authorized representative of American Internet Technical Center, who
acknowledges that this was his free and authorized act and deed and the free and
authorized act and deed of said company.
-------------------------
Notary Public
328
