COMPROMISE SETTLEMENT AGREEMENT AND MUTUAL RELEASE
Exhibit 10.2
CAUSE NO. 99-08893-H
| XXXXX XXXXXXXXX
Plaintiff,
vs.
INTERNET AMERICA, INC. XXXXXXX X. XXXXXX, AND XXXXXXX X. XXXX,
Defendants. |
IN THE DISTRICT COURT OF DALLAS COUNTY, TEXAS 160TH JUDICIAL DISTRICT |
NO. 05-01-01577-CV
IN THE COURT OF APPEALS
FOR THE FIFTH DISTRICT OF TEXAS
INTERNET AMERICA, INC., XXXXXXX X. XXXXXX, and
XXXXXXX X. XXXX
Appellants/Cross-Appellees
v.
XXXXX XXXXXXXXX
Appellee/Cross-Appellant
COMPROMISE SETTLEMENT AGREEMENT AND MUTUAL RELEASE
THIS COMPROMISE SETTLEMENT AGREEMENT AND MUTUAL RELEASE (this Agreement) is entered into by and among PLAINTIFF XXXXX XXXXXXX XXXXXXXXX (XXXXXXXXX), XXXX XXXXXXX (XXXXXXX), INTERNET AMERICA, INC. (INTERNET AMERICA), XXXXXXX X. XXXX, individually and on behalf of BCG Partnership Ltd. (XXXX), and XXXXXXX X. XXXXXX (XXXXXX) (INTERNET AMERICA, XXXX, AND XXXXXX will be collectively referred to as DEFENDANTS). Each of the signatory parties to this Agreement will be referred to as a “Party,” and all of the signatory parties to this Agreement will be referred to collectively as the “Parties.”
RECITALS
Xxxxxxxxx has asserted claims against Internet America, Xxxx, and Xxxxxx based upon the alleged facts and circumstances set forth in Xxxxxxxxx’x Original Petition and as amended (collectively, the Petition), which were filed in the above-referenced lawsuit in the 160th Judicial District Court of Dallas County, Texas (the Trial Court), Cause No. 99-08893-H (the Lawsuit). Defendants asserted counterclaims in the Lawsuit (the Counterclaims).
Xxxx Xxxx Xxxxxxxxx, Xxxxxxxxx’x former spouse, has asserted some interest in Xxxxxxxxx’x claims in the Lawsuit. Xxxxxxx represented Xxxxxxxxx in the Lawsuit and the Appeal and has a contingent fee agreement with Xxxxxxxxx. Other than her fee agreement with Xxxxxxx, Xxxxxxxxx has not encumbered or assigned any of her claims.
Xxxxxxxxx obtained a Final Judgment against Internet America, Xxxx, and Xxxxxx, which Final Judgment was dated July 10, 2001.
Defendants filed a Supersedeas Bond, which was approved by the clerk on October 3, 2001.
On October 5, 2001, Defendants filed a Notice of Appeal to appeal the Final Judgment to the Dallas Court of Appeals in case no. 05-01-01577-CV, and on October 18, 2001, Xxxxxxxxx filed her Cross Notice of Appeal. All issues raised by any party in the Court of Appeals shall be referred to as the Appeal.
Bona fide disputes and controversies exist between the Parties, as to liability, if any, and damages, if any, and the Parties desire to compromise and settle all of the disputes, claims, and/or causes of action between and/or among them that they have, or may have, arising out of the facts and circumstances set out in the Lawsuit, Counterclaims and the Appeal, the papers filed in the Lawsuit, Counterclaims and the Appeal, or otherwise arising out of or related to the Lawsuit, Counterclaims and the Appeal, including without limitation the Supersedeas Bond, and intend that the full terms and conditions of their agreement be set forth in this Agreement.
The Parties specifically intend to reach a full and final settlement of any and all matters and any and all causes of action, past, present, and future, between them and among them arising out of the facts, circumstances, and claims as set forth above.
In consideration of the mutual promises and agreements herein contained, including the recitals set forth above, the Parties agree as follows:
1. PAYMENT OF SETTLEMENT FUNDS
At closing and upon execution and delivery of this Agreement, signed by all parties, Internet America shall deliver and pay the total nonrefundable and irrevocable amount of $3,250,000.00 (Settlement Payment) in good and valid presently available United States dollars in the form of a certified check made payable to Xxxxx Xxxxxxxxx and Xxxx Xxxxxxx, which payment shall be delivered to counsel for Xxxxxxxxx, Xxxx Xxxxxxx, at said closing.
At closing of this Agreement, Internet America shall issue a Form 1099-MISC that reports the Settlement Payment as “other income” to Xxxxxxxxx, and Internet America shall file such Form 1099-MISC consistent with applicable laws. Together with this Agreement, Internet America shall supply copies of the Form 1099-MISC to Xxxxxxxxx by delivering same to her counsel, in the form attached hereto as Exhibit “C.” The Form 1099-MISC will not be amended by Internet America.
2. RELEASE BY XXXXXXXXX AND ATTORNEYS
Xxxxxxxxx on behalf of herself and her successors, assigns, attorneys (including Xxxxxxx), agents, estates, principals, servants, sureties, past and present partners, family members and representatives (collectively, “Xxxxxxxxx Releasors”), hereby, voluntarily and knowingly, forever and completely releases, acquits and discharges Internet America, Hunt, Maples, and BCG Partnership Ltd., and all of their respective parents, affiliates, subsidiaries, predecessors, successors, assigns, shareholders, past and present officers and directors, agents, servants, employees, attorneys, sureties, principals, estates, past and present partners, family members and representatives (collectively, the “Internet America Releasees”), from each and every right, claim, counterclaim, demand, and cause of action, past, present, and future, in contract or tort or declaratory, whether common law or statutory, including without limitation, fraud, fraud in a stock transaction, securities fraud, negligence, conversion, breach of fiduciary duty, harassment, sanctions, attorneys’ fees, and all conspiracy claims, which the Xxxxxxxxx Releasors have or may have, known or unknown, liquidated or unliquidated, asserted or unasserted, derivative or otherwise, relating to or arising out of the facts, circumstances, and matters asserted, or which could have been asserted in the Petition, Lawsuit, or in the Appeal against the Internet America Releasees. This Release specifically includes all of the claims, counterclaims, demands and causes of action that the Xxxxxxxxx Releasors have asserted or could have asserted, whether by claim, counterclaim, or intervention, against any of the Internet America Releasees in the Petition, Lawsuit, or in the Appeal, including, without limitation, any claim to the Supersedeas Bond. Nothing shall be construed as a release or waiver of any Party’s obligations under this Agreement or under any agreement for internet services with Internet America.
Xxxxxxx consents to the terms of this Agreement and voluntarily and knowingly, forever and completely releases, acquits and discharges the Internet America Releasees from each and every right, claim, demand, and cause of action, past, present, and future, in contract or tort or declaratory, whether common law or statutory, including without limitation, fraud, fraud in a stock transaction, securities fraud, negligence, conversion, breach of fiduciary duty, harassment, sanctions, attorneys’ fees, and all conspiracy claims, which Xxxxxxx, and the Xxxxxxxxx Releasors have or may have, known or unknown, liquidated or unliquidated, asserted or unasserted, derivative or otherwise, relating to or arising out of the facts, circumstances, and matters asserted, or which could have been asserted in the Petition, Lawsuit, or in the Appeal against the Internet America Releasees. This Release specifically includes all of the claims, demands and causes of action that Xxxxxxx, and the Xxxxxxxxx Releasors have asserted or could have asserted, whether by claim, counterclaim, or intervention, against any of the Internet America Releasees in the Petition, Lawsuit, or in the Appeal, including, without limitation, any claim to the Supersedeas Bond. Nothing shall be construed as a release or waiver of any Party’s obligations under this Agreement or under any agreement for internet services with Internet America.
Xxxxxxxxx shall secure a release from Xxxx Xxxx Xxxxxxxxx in favor of the Internet America Releasees substantially in the form of Exhibit “A,” attached. At or before the closing of this Agreement, Xxxxxxxxx shall provide Defendants with the original of such release, bearing the original, dated, notarized signature of Xxxx Xxxx Xxxxxxxxx.
3. RELEASES BY INTERNET AMERICA, XXXX, AND XXXXXX
Internet America, Xxxx, BCG Partnership Ltd., and Xxxxxx, and all of their respective parents, affiliates, subsidiaries, predecessors, successors, assigns, shareholders, past and present officers and directors, agents, servants, employees, attorneys, sureties, principals, estates, past and present partners, family members and representatives (all of the preceding collectively the Internet America Releasors), hereby, voluntarily and knowingly, forever and completely release, acquit and discharge Xxxxxxxxx and Xxxxxxx, and their successors, assigns, attorneys (including Xxxxxxx), agents, estates, principals, servants, sureties, past and present partners, family members and representatives, and each of them (the “Xxxxxxxxx Releasees”), from each and every right, claim, counterclaim, demand, and cause of action, past present, and future, in contract or tort or declaratory, whether common law or statutory, including without limitation, fraud, fraud in a stock transaction, securities fraud, negligence, conversion, breach of fiduciary duty, harassment, sanctions, attorneys’ fees and all conspiracy claims, which the Internet America Releasors have or may have, known or unknown, liquidated or unliquidated, asserted or unasserted, derivative or otherwise, relating to or arising out of the facts, circumstances, and matters asserted, or which could have been asserted against any of the Xxxxxxxxx
Releasees in the Lawsuit, Counterclaims or in the Appeal. This Release specifically includes all of the claims, counterclaims, demands and causes of action that the Internet America Releasors have asserted or could have asserted, whether by claim, counterclaim or intervention, against any of the Xxxxxxxxx Releasees, in the Lawsuit, Counterclaims or in the Appeal. Nothing shall be construed as a release or waiver of any Party’s obligations under this Agreement or under any agreement for internet services with Internet America.
4. INFORMATION REGARDING XXXXXXXXX
In response to a request for employment reference regarding Xxxxxxxxx’x employment with Internet America, Defendants shall supply only Xxxxxxxxx’x job title(s) and dates of service unless Defendants are required by law to supply further information.
Defendants shall not disparage Xxxxxxxxx in any way.
Xxxxxxxxx shall not disparage Internet America, its business, employees, officers, directors, shareholders, or Xxxx, or Xxxxxx in any way.
5. INDEMNITY
Xxxxxxxxx shall hold Internet America, Xxxx and Xxxxxx harmless from and defend them against (a) any claim(s) released herein by Xxxxxxxxx asserted by any person or entity that acquired his, her or its claim, from or through Xxxxxxxxx, including, without limitation, any claims by Xxxx Xxxx Xxxxxxxxx, whether direct or derivative. This indemnity shall include, without limitation, holding Internet America, Xxxx and Xxxxxx harmless from any and all losses, including, without limitation, fees, expenses, settlement, judgment, or liabilities arising from any such claim(s). In the event of such a claim, Xxxxxxxxx shall have the right to direct the defense of and settle any such claim, including choice of counsel. Internet America, Xxxx and Xxxxxx agree to fully cooperate and provide assistance in defense of any such claim, absent which cooperation and assistance, the indemnity obligations hereunder shall be forfeited. Internet America, Xxxx and Xxxxxx represent and warrant that they are aware of no claims that could potentially give rise to such indemnity obligations, other than the claims asserted by Xxxx Xxxx Xxxxxxxxx referred to above.
6. COMPLETE SETTLEMENT AMONG THE PARTIES TO THIS AGREEMENT
In consideration of these releases, the Settlement Payment and the other consideration recited herein, the Parties agree that all matters arising out of and all matters asserted, or which could have been asserted in the Lawsuit, Counterclaims or in the Appeal, are finally, fully, and completely compromised and settled as between and among them.
7. COMPREHENSION OF AGREEMENT
The Parties acknowledge that they have read and understand this Agreement and execute the same of his, her, or its own free will and accord for the purposes and consideration set forth. The Parties further warrant that they have consulted, or have had the full opportunity to consult, with an attorney of their choosing concerning this Agreement.
8. CHOICE OF LAW AND VENUE
The Parties further agree that this Agreement shall be governed, construed, and enforced in accordance with the laws of the State of Texas and that venue for any dispute arising out of this Agreement will be Dallas County, Texas.
9. DISPOSITIVE PAPERS
No later than five (5) days after the Settlement Payment is delivered to Xxxxxxxxx’x counsel, Xxxxxxxxx, and Defendants, by and through their counsel, will execute such agreed pleadings, motions, orders, and the like, as is necessary, appropriate and consistent with applicable law to request the Court of Appeals to reverse or vacate, as chosen by Defendants, the Final Judgment and/or to reverse the Final Judgment with instructions to the Trial Court to vacate the Final Judgment. Such pleadings, motions, orders, or the like, shall not contain any recitation of the legal or factual findings or issues or merits thereof in the Lawsuit, Counterclaims or in the Appeal and shall contain an express release of the Supersedeas Bond. Such papers shall be in substantially the form attached as Exhibit “B.”
The effectiveness and finality of this Agreement shall not be affected in any way by any ruling of the Court of Appeals or the Trial Court on such requests, including without limitation a denial of the request to reverse or vacate the Final Judgment.
10. ENTIRETY OF AGREEMENT
The Parties further agree that this Agreement contains the entire agreement between the Parties and supersedes any and all prior agreements, arrangements or understandings between the Parties relating to the subject matter of this Agreement; that no oral understandings, statements, promises or inducements contrary to the terms of this Agreement exist; and that this Agreement cannot be orally modified or terminated. The Parties expressly disclaim reliance upon any such prior discussions, representations, or agreements. All amendments must be in writing and signed by the affected Parties.
11. SUCCESSORS IN INTEREST
The Parties further agree that this Agreement is also binding upon all successors, assigns, and legal representatives of the Parties to this Agreement.
12. CONTRACTUAL RECITATIONS
The Parties further agree that the terms of this Agreement are contractual in nature and not mere recitals of fact.
13. NON-ADMISSION OF LIABILITY
The Parties further agree that the agreements contained herein and the consideration transferred are in compromise and settlement of disputed claims and to avoid further litigation, and any payments made or releases given are not intended and shall not be construed as an admission of liability because all Parties to this Agreement admit no liability. Xxxxxxxxx, Internet America, Xxxx and Xxxxxx shall each be responsible for their respective attorneys’ fees and costs.
14. MULTIPLE ORIGINALS AND FACSIMILE SIGNATURES
This Agreement may be executed in a number of identical counterparts or with detachable signature pages and shall constitute one agreement, binding upon all Parties as if all Parties signed the same document. It is understood and agreed that this Agreement may be executed by facsimile signatures, and said signatures and copies of any original signatures shall be binding upon the Parties as if they were original signatures.
15. OWNERSHIP OF CLAIMS AND CAUSES OF ACTION
Each and every Party represents and warrants that he, she, and it, and no other person or entity, owns any of the claims or causes of action, derivative or otherwise, that he, she, and it asserted or could have asserted in this Lawsuit, Counterclaims or in the Appeal. All parties further represent and warrant that he, she or it, has obtained all necessary approvals and authority to enter into this Agreement and that this Agreement is a valid, binding and enforceable agreement in accordance with its terms.
16. ENFORCEABILITY AND SEVERABILITY
In the event any one or more of the provisions contained in this Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed, effective as of the date last written below.
| /S/ XXXXX X. XXXXXXXXX | ||
| XXXXX XXXXXXX XXXXXXXXX | ||
Date: 5/6/03
STATE OF TEXAS
COUNTY OF DALLAS
BEFORE ME, the undersigned authority, on this day personally appeared XXXXX XXXXXXX XXXXXXXXX, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that she executed the same for the purposes and consideration therein expressed.
Given under my hand and seal of office this 6th day of May, 2003.
/S/ XXXXXXX XXXX
Notary in and for the State of Texas
My Commission Expires:
6-11-2005
/S/ XXXX XXXXXXX
XXXX XXXXXXX
Date: May 6, 2003
STATE OF TEXAS
COUNTY OF DALLAS
BEFORE ME, the undersigned authority, on this day personally appeared XXXX XXXXXXX, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed.
Given under my hand and seal of office this 6th day of May, 2003.
/S/ XXXXXXX XXXX
Notary in and for the State of Texas
My Commission Expires:
6-11-05
INTERNET AMERICA, INC.
By: /S/ XXXX X. XXXXX
Name: Xxxx X. Xxxxx
Its: Chairman and CEO
Date: May 6, 2003
STATE OF TEXAS
COUNTY OF DALLAS
BEFORE ME, the undersigned authority, on this day personally appeared Xxxx X. Xxxxx, the Chairman and CEO of INTERNET AMERICA, INC., known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that she/he executed the same for the purposes and consideration therein expressed.
Given under my hand and seal of office this 6 day of May, 2003.
/S/ XXXX XXXXXXX
Notary in and for the State of Texas
My Commission Expires:
10-17-03
/S/ XXXXXXX X. XXXX
XXXXXXX X. XXXX, Individually and as
General Partner of BCG Partnership Ltd.
Date: May 6, 2003
STATE OF TEXAS
COUNTY OF DALLAS
BEFORE ME, the undersigned authority, on this day personally appeared XXXXXXX X. XXXX, on behalf of himself and BCG Partnership Ltd., known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed.
Given under my hand and seal of office this 6 day of May, 2003.
/S/ XXXX XXXXXXX
Notary in and for the State of Texas
My Commission Expires:
10-17-03
/S/ XXXXXXX X. XXXXXX
XXXXXXX X. XXXXXX
Date: 05-06-03
STATE OF TEXAS
COUNTY OF DALLAS
BEFORE ME, the undersigned authority, on this day personally appeared XXXXXXX X. XXXXXX, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed.
Given under my hand and seal of office this 6 day of May, 2003.
/S/ XXXX XXXXXXX
Notary in and for the State of Texas
My Commission Expires:
10-17-03
EXHIBIT “A”
MUTUAL RELEASE
THIS MUTUAL RELEASE (this Agreement) is entered into by and between XXXX XXXX XXXXXXXXX, INTERNET AMERICA, INC. (INTERNET AMERICA), XXXXXXX X. XXXX (XXXX), and XXXXXXX X. XXXXXX (XXXXXX) (INTERNET AMERICA, XXXX, AND XXXXXX will be collectively referred to as DEFENDANTS). Each of the signatory parties to this Agreement will be referred to as a “Party,” and all of the signatory parties to this Agreement will be referred to collectively as the “Parties.”
REPRESENTATIONS
Xxxx Xxxx Xxxxxxxxx represents and warrants the following:
| 1. | He knows that Xxxxx Xxxxxxx Xxxxxxxxx, former wife of Xxxx Xxxx Xxxxxxxxx, has asserted claims against Internet America, Xxxx, and Xxxxxx based upon the alleged facts and circumstances set forth in Xxxxx Xxxxxxxxx’x Original Petition and as amended (collectively, the Petition), which were filed in the above-referenced lawsuit (the Lawsuit) in the160th Judicial District Court of Dallas County, Texas (the Trial Court). |
| 2. | He has read the Petition in the Lawsuit. |
| 3. | He asserted an interest in Xxxxx Xxxxxxxxx’x claims against Defendants, including, without limitation, the claims raised in the Lawsuit. He asserted such interest and claims in the Lawsuit as well as in the divorce proceeding styled as Xxxx Xxxx Xxxxxxxxx v. Xxxxx Xxxxxxx, in the 301st Judicial District Court of Dallas County, Texas, Cause No. 97-13113-T (the Divorce). |
| 4. | He knows that Xxxxx Xxxxxxxxx obtained a Final Judgment in the Lawsuit against Internet America, Xxxx, and Xxxxxx in at least the amount of $3,483,684.92, which Final Judgment was dated July 10, 2001. |
| 5. | He knows that the Final Judgment is being appealed to the Dallas Court of Appeals (the Appeal). |
| 6. | He knows that Xxxxx Xxxxxxxxx and Defendants have reached an agreement in principal on the terms of a settlement that is contingent upon preparation of appropriate documentation, and that such agreement in principal contemplates that Xxxxx Xxxxxxxxx will receive a settlement payment of $3,250,000. |
In consideration of the above representations and the mutual releases herein contained, the Parties agree as follows:
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A. RELEASE BY XXXX XXXX XXXXXXXXX
Xxxx Xxxx Xxxxxxxxx and his successors, assigns, and representatives, hereby, voluntarily and knowingly, forever and completely release, acquit and discharge Internet America, Xxxx, and Xxxxxx, their predecessors, successors, assigns, past and present directors and officers, shareholders, agents, parents, subsidiaries, affiliates, servants, representatives, employees, attorneys, and sureties, and each of them, (collectively, the “Internet America Releasees”), from each and every right, claim, demand, and cause of action, past, present, and future, in contract or tort or declaratory, whether common law or statutory, including without limitation, fraud, fraud in a stock transaction, securities fraud, negligence, conversion, breach of fiduciary duty, and all conspiracy claims, which Xxxx Xxxx Xxxxxxxxx has or may have, known or unknown, liquidated or unliquidated, asserted or unasserted, derivative or otherwise, relating to or arising out of the facts, circumstances, and matters asserted, or which could have been asserted in the Lawsuit, the Appeal, or the Divorce against the Internet America Releasees. This Release specifically includes all of the claims, demands and causes of action that Xxxx Xxxx Xxxxxxxxx has asserted or could have asserted against any of the Internet America Releasees in the Lawsuit, the Appeal, or the Divorce, including, without limitation, any claim arising out of or related to certain Internet America stock options.
Xxxx Xxxx Xxxxxxxxx further specifically promises and covenants not to sue any of the Internet America Releasees for any matter arising out of or related to the facts, circumstances, and matters asserted, or which could have been asserted in the Lawsuit, the Appeal, or the Divorce against the Internet America Releasees.
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B. RELEASE BY INTERNET AMERICA, XXXX, AND XXXXXX
Internet America, and all of its parents, subsidiaries, predecessors, successors, assigns, agents, principals, and representatives, Xxxx, and Xxxxxx, hereby, voluntarily and knowingly, forever and completely releases, acquit and discharge Xxxx Xxxx Xxxxxxxxx, and his successors, assigns, and representatives, and each of them (the “Xxxxxxxxx Releasees”), from each and every right, claim, demand, and cause of action, past present, and future, in contract or tort or declaratory, whether common law or statutory, including without limitation, fraud, fraud in a stock transaction, securities fraud, negligence, conversion, breach of fiduciary duty, and all conspiracy claims, which Internet has or may have, known or unknown, liquidated or unliquidated, asserted or unasserted, derivative or otherwise, relating to or arising out of the facts, circumstances, and matters asserted, or which could have been asserted against any of the Xxxxxxxxx Releasees in the Lawsuit, the Appeal, or the Divorce. This Release specifically includes all of the claims, demands and causes of action that Internet America, Xxxx, and/or Xxxxxx have asserted or could have asserted against any of the Xxxxxxxxx Releasees in the Lawsuit, the Appeal, or the Divorce.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed, effective as of the date last written below.
|
|
| XXXX XXXX XXXXXXXXX |
| Date: |
| STATE OF TEXAS |
| COUNTY OF |
BEFORE ME, the undersigned authority, on this day personally appeared XXXX XXXX XXXXXXXXX, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that she executed the same for the purposes and consideration therein expressed.
Given under my hand and seal of office this day of , 2003.
Notary in and for the State of Texas
My Commission Expires:
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INTERNET AMERICA, INC.
By:
Name:
Its:
Date:
| STATE OF TEXAS |
| COUNTY OF DALLAS |
BEFORE ME, the undersigned authority, on this day personally appeared , the of INTERNET AMERICA, INC., known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that she/he executed the same for the purposes and consideration therein expressed.
Given under my hand and seal of office this day of , 2003.
_______________________________________________
Notary in and for the State of Texas
My Commission Expires:
3
| XXXXXXX X. XXXX |
| Date: |
| STATE OF TEXAS |
| COUNTY OF DALLAS |
BEFORE ME, the undersigned authority, on this day personally appeared XXXXXXX X. XXXX, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed.
Given under my hand and seal of office this day of , 2003.
_______________________________________________
Notary in and for the State of TEXAS
My Commission Expires:
4
| XXXXXXX X. XXXXXX |
| Date: |
| STATE OF TEXAS |
| COUNTY OF DALLAS |
BEFORE ME, the undersigned authority, on this day personally appeared XXXXXXX X. XXXXXX, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed.
Given under my hand and seal of office this day of , 2003.
_______________________________________________
Notary in and for the State of TEXAS
My Commission Expires:
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EXHIBIT “B”
NO. 05-01-01577-CV
IN THE COURT OF APPEALS
FOR THE FIFTH DISTRICT OF TEXAS
INTERNET AMERICA, INC., XXXXXXX X. XXXXXX, and
XXXXXXX X. XXXX
Appellants/Cross-Appellees
v.
XXXXX XXXXXXXXX
Appellee/Cross-Appellant
AGREED, JOINT MOTION FOR DISPOSITION
PURSUANT TO SETTLEMENT AGREEMENT
Appeal from the 160th District Court, Dallas County
TO THE HONORABLE COURT OF APPEALS:
I.
The parties have settled this case. As a part of the settlement agreement, the parties agreed to seek relief in this Court under Texas Rule of Appellate Procedure 42.1(a)(2), which authorizes disposition of an appeal in accordance with an agreement of the parties. The parties have conferred and have agreed to this joint motion, and no party opposes the relief jointly requested in this motion.
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II.
Counsel for all parties to this appeal have signed this motion with the intent that
it
serve as their agreement under Rule of Appellate Procedure 42.1(a)(2). As evidenced by the signatures of their attorneys, the parties have agreed to request, and do request, that this Court render a judgment that effectuates their settlement by:
| (i) | vacating and/or setting aside the trial court’s final judgment signed on July 10, 2001 in Cause No. DV 99-08893-H (See Tex. R. App. P. 43.2); |
| (ii) | releasing and discharging the sureties on the supersedeas bond posted by Appellants Internet America, Inc., Xxxxxxx X. Xxxxxx, and Xxxxxxx X. Xxxx in Cause No. DV 99-08893-H (See Tex. R. App. 43.6); |
| (iii) | dismissing the case (See Tex. R. App. P. 43.2); |
| (iv) | ordering that all attorneys’ fees and costs in the trial court and on appeal shall be borne by the party or parties incurring same (See Tex. R. App. 43.6); and |
| (v) | ordering that this Court’s mandate shall issue immediately (See Tex. R. App. 43.6). |
The parties believe that Court has the jurisdiction, power, and authority to render such a judgment under Texas Rule of Appellate Procedure 42.1(a)(2)(A). If the Court disagrees, the parties request, strictly in the alternative, that the Court effectuate their settlement by issuing a judgment or order that:
| (i) | vacates and/or sets aside the trial court’s final judgment signed on July 10, 2001 in Cause No. DV 99-08893-H; |
| (ii) | orders that all attorneys’ fees and costs on appeal shall be borne by the party or parties incurring same; |
| (ii) | remands the case to the trial court with instructions to: |
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| (a) | sign an agreed order to be submitted by the parties that dismisses the case with prejudice and orders that all attorneys’ fees and costs incurred in the trial court be borne by the party or parties incurring same; and |
| (b) | sign an agreed order to be submitted by the parties that releases and discharges the sureties on the supersedeas bond posted by Appellants Internet America, Inc., Xxxxxxx X. Xxxxxx, and Xxxxxxx X. Xxxx in Cause No. DV 99-08893-H. |
See Tex. R. App. P. 42.1(a)(2)(B).
PRAYER
WHEREFORE, Appellants/Cross-Appellees Internet America, Inc., Xxxxxxx X. Xxxxxx, and Xxxxxxx X. Xxxx and Appellee/Cross-Appellant Xxxxx Xxxxxxxxx request that this Court award the relief requested in Paragraph II above and any other relief to which the parties are justly entitled.
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Respectfully submitted,
By:
XXXXXX X. XXXXXXXXX
State Bar No. 07904620
JENKENS & XXXXXXXXX,
a Professional Corporation
0000 Xxxx Xxxxxx, Xxxxx 0000
Dallas, Texas 75202-2799
(000) 000-0000
(000) 000-0000 Fax
ATTORNEYS FOR APPELLANTS/XXXXX APPELLEES INTERNET AMERICA, XXXXXXX X. XXXXXX, AND XXXXXXX X. XXXX
By:
XXXX X. XXXXXXX
State Bar No. 03638800
14135 Midway Rd. Suite 250
Addison, Texas 75201
(000) 000-0000
(000) 000-0000 Fax
ATTORNEYS FOR APPELLEE/CROSS APPELLANT XXXXX XXXXXXXXX
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CERTIFICATE OF SERVICE
I hereby certify that on 2003 a true and correct copy of the above instrument was forwarded via certified mail, return receipt requested, to:
Xxxx X. Xxxxxxx, Esq.
Xxxxxx, Xxxxxx, XxXxx, Xxx & Xxxxxxxx
00000 Xxxxxx Xxxx, Xxxxx 000
Addison, Texas 75001
Counsel for Appellant/Cross-Appellant
Xxxxxx X. Xxxxxxxxx
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