SETTLEMENT AGREEMENT AND RELEASE
Exhibit
101
SETTLEMENT
AGREEMENT AND RELEASE
This
Settlement Agreement and Release (“Agreement”), is made and entered into as of
May 31, 2007, by and among Embarq Logistics, Inc. (“Embarq”) (formerly known as
Sprint North Supply Company), located at 000 Xxx Xxxxxxx Xxxxxxx, Xxxxxxx,
Xxxxxx, and Xfone USA, Inc. (“Xfone”), located at 0000 Xxxxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxxxxx, and Xfone, Inc. (“Parent”), its parent company, located at 0000
Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxx. Where appropriate, Embarq and Xfone
are
referred to herein as the “Parties”.
WHEREAS,
Embarq and Xfone are parties to the following documents and
agreements: (1) a Credit Application dated August 24, 2005, submitted
to Embarq by Xfone, including Terms and Conditions of Sale attached thereto
and
incorporated therein; (2) a Quote Summary dated November 2, 2005, submitted
to
Xfone by Embarq for installation of collocation facilities at
seven BellSouth central office sites in Mississippi (the “Collocation
Work”); (3) Purchase Order No. 330606 dated November 16, 2005, issued by Xfone
to Embarq to perform the Collocation Work; and (4) seven Notices of Job
Completion and Job Acceptance Forms for the Collocation Work, each dated
June
21, 2006; and
WHEREAS,
a dispute exists between the Parties as to the scope of the Collocation Work,
the manner in which it was carried out, and the timeliness of completion,
and
the Parties each contend that they have sustained damages and are owed money
by
the other as a result of these disputed issues; and
WHEREAS,
the Parties intend through this Agreement to resolve all claims and disputes
associated with or related to performance of and payment for the Collocation
Work;
NOW
THEREFORE, in consideration of the mutual covenants and agreements set forth
below, the receipt and sufficiency of which are expressly acknowledged, the
Parties hereto, intending to be legally bound, do hereby voluntarily and
freely
agree, after the opportunity to consult with counsel of their own choosing,
to
the following terms and conditions in order to settle the differences between
and among them as to the above referenced matters:
1. Settlement
Amount. In consideration for the promises set forth herein, Xfone
will pay Embarq a total of Eight Hundred Thirty Thousand Dollars ($830,000)
(the
“Settlement Amount”), to be paid as follows: (1) $415,004 to be
wire-transferred pursuant to Embarq’s written instructions contemporaneously
with the execution of this Agreement (the "First Payment") ; and (2) the
balance
to be paid by a promissory note in the amount of $414,996 executed by Xfone
contemporaneously with its execution of this Agreement in the form attached
hereto as Exhibit A (the “Note”). The Note will provide for payment
to be made in six equal installments of $69,166, each due on the 30th day
of the
month beginning on June 30, 2007 and continuing through November 30,
2007.
2. Parent
Guarantee. Contemporaneously with its execution of this
Agreement, and in consideration of the promises set forth herein, Parent
will
execute a parent guarantee in the form attached hereto as Exhibit
B.
3. Embarq
Release. Embarq, on behalf of itself, its affiliates, its
subsidiaries and divisions, and each of their respective past, present, and
future employees, officers, directors, attorneys, representatives, predecessors,
successors and permitted assigns, absolutely, unconditionally, completely,
forever and without reservation, hereby irrevocably releases, acquits, remises,
and forever discharges Xfone and Parent, together with their affiliates,
subsidiaries and divisions, and each of their respective past, present, and
future employees, officers, directors, attorneys, representatives, predecessors,
successors and permitted assigns of and from any and all manner of claims,
counterclaims, costs, expenses, demands, rights, liabilities, damages, potential
actions, causes of action, suits, judgments, decrees, controversies and the
like, of any kind and nature whatsoever, whether liquidated or unliquidated,
fixed or contingent, matured or unmatured, known or unknown, foreseen or
unforeseen, at law, in equity, or otherwise, which Embarq has or ever had
against Xfone and/ or Parent in connection with or relating to the Collocation
Work.
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4. Xfone
and Parent Release. Xfone and Parent, on behalf of themselves,
their affiliates, their subsidiaries and divisions, and each of their respective
past, present, and future employees, officers, directors, attorneys,
representatives, predecessors, successors and permitted assigns, absolutely,
unconditionally, completely, forever and without reservation, hereby irrevocably
releases, acquits, remises, and forever discharges Embarq, together with
its
affiliates, its subsidiaries and divisions, and each of their respective
past,
present, and future employees, officers, directors, attorneys, representatives,
predecessors, successors and permitted assigns, of and from any and all manner
of claims, counterclaims, costs, expenses, demands, rights, liabilities,
damages, potential actions, causes of action, suits, judgments, decrees,
controversies and the like, of any kind and nature whatsoever, whether
liquidated or unliquidated, fixed or contingent, matured or unmatured, known
or
unknown, foreseen or unforeseen, at law, in equity, or otherwise, which Xfone
and/or Parent have or ever had against Embarq in connection with or relating
to
the Collocation Work.
5. Unknown
Facts or
Claims. The parties to this Agreement acknowledge and agree
that, although they may hereafter discover facts in addition to or different
from those which they know or believe to be true as of the date of this
Agreement, it is their intention hereby to fully, finally and forever, with
respect to each other, settle and release the above described claims and,
in
furtherance of such intention, the releases shall be and remain in effect
notwithstanding the discovery or existence of any such additional or different
facts. Each of the parties to this Agreement expressly waives
whatever rights it may have under any applicable law providing that a general
release does not extend to claims that a party does not know or suspect to
exist
in its favor at the time of executing this Agreement, and do so having had
a
full opportunity to consult with counsel and in full understanding the
significance of that waiver.
6. Notices. All
notices, requests or other communications in connection with or relating
to this
Agreement must be in writing and sent to the addresses first written above
by
(a) certified mail, with return receipt requested, or (b) Federal Express
or
other overnight service, or (c) by facsimile and regular mail. A
notice shall be deemed to have been delivered on the date that it is
received.
7. No
Admission of Liability. This Agreement is a compromise of
disputed claims, and nothing contained herein shall constitute any adjudication
or finding on the merits as to the claims of any Party or shall be construed
as
an admission of liability or acknowledgement of any fact, allegation, or
claim
that has been or could have been made concerning the Party in
question. Moreover, this Agreement shall not be construed as, or
deemed to be evidence of, any admission or concession of fault, error, omission,
or other ground for liability on the part of any Party, and all
Parties specifically deny any fault, error, omission or other ground for
liability.
8. Modification
and Assignment. This Agreement may not be modified, assigned, or
transferred, except with the written consent of all parties to this
Agreement.
9. No
Inducements. The parties to this Agreement declare and represent
that no promises, inducements, or agreements not herein expressed have been
made
to the parties to this Agreement with respect to the subject matter of this
Agreement, that this Agreement contains the entire agreement between the
parties
to this Agreement with respect to the subject matter of this Agreement, and
that
the terms of this Agreement are contractual and not a mere recital.
10. Authorization. Each
person executing this Agreement represents to the other that this Agreement
has
been duly authorized, executed and delivered by such party to this Agreement
and
constitutes the legal, valid and binding obligation of such party to this
Agreement, and warrants that he or she has authority to so execute
it, and each party to this Agreement hereby waives any claim that such
individual was not so authorized. Each of the parties
to this Agreement further represents and warrants that it is duly constituted
under applicable laws, that it is validly existing and in good standing under
applicable laws, that it has all requisite corporate power and authority
to
execute and deliver this Agreement and to perform its obligations hereunder,
and
that the execution, delivery and performance of this Agreement by it will
not
result in any violation or be in conflict with its certificate of incorporation,
bylaws or of any agreement, order, judgment, decree, statute, rule or regulation
applicable to it.
11. Ownership
of Claims. Each of the Parties represents that it has not
assigned or transferred, in any manner, to any person or entity, any right
or
interest to which they may be entitled regarding the released claims described
herein. Each Party represents and warrants that it is the owner and
holder of all rights and interests concerning the subject matter of this
Agreement.
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12.
Counterparts and Facsimile Signatures. This Agreement may be
executed in counterparts which, taken together, shall constitute one and
the
same agreement. A facsimile signature will be as valid as an original
signature for all purposes relevant to this Agreement.
13. Binding
Effect. This Agreement shall be binding upon and shall inure to
the benefit of the parties to this Agreement and their respective successors
and
assigns.
14. Continuing
Effect. The invalidity, illegality or unenforceability of any
provision or part of any provision of this Agreement under any law shall
not
affect the other provisions or parts of this Agreement, which shall remain
in
full force and effect.
15. Governing
Law. This Agreement
is
governed by the laws of the State of Kansas, without regard to choice of
law
principles.
16. Entire
Agreement. This Agreement constitutes the sole, only, entire and
complete agreement of the parties to this Agreement relating in any way to
the
settlement of the claims described herein. There are no oral or
written collateral agreements relating to settlement of these claims, and
all
prior discussions and negotiations relating to this Agreement are merged,
integrated into, and superseded by this Agreement.
IN
WITNESS WHEREOF, the parties to this Agreement have duly executed this Agreement
effective as of the date first written above.
|
Xfone
USA, Inc.
|
|||
|
Date:
05/31/2007
|
By:
|
/s/ Xxxx Xxxxxxx | |
| Name: Xxxx Xxxxxxx | |||
| Title: President | |||
|
Xfone
USA, Inc.
|
|||
|
Date:
05/31/2007
|
By:
|
/s/ Xxx Xxxxxxxxx | |
| Name: Xxx Xxxxxxxxx | |||
| Title: CEO | |||
|
Embarq
Logistics, Inc.
|
|||
|
Date:
05/31/2007
|
By:
|
/s/ Xxxx Xxxxx | |
| Name: Xxxx Xxxxx | |||
| Title: VP, Marketing & Sales | |||
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