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EXHIBIT 10.18
SETTLEMENT AGREEMENT
SETTLEMENT AGREEMENT made in Columbus, Ohio, dated November 13, 1998,
by and among Xxxx Xxxxx Xxxxx ("Xxxxx"), on the one hand, and Xxxxx X. Xxxx
("Zwan") and Digital Lightwave, Inc. ("Digital"), on the other.
WHEREAS there is an action pending in the United States District Court
for the Southern District of Ohio, Xxxxx x. Xxxx, et al., Number C2-97-1218
("Xxxxx I"); and
WHEREAS there is an action pending in the United States District Court
for the Southern District of Ohio, Xxxxx v. Credit Suisse First Boston Corp., et
al., Number C2-98-555 ("Haney II");
The parties hereto have agreed as follows:
1. This SETTLEMENT AGREEMENT supersedes in all respects the handwritten
agreement between the parties dated October 20, 1998, annexed hereto as Exhibit
A, which shall have no further effect.
2. Grant of Stock Option Agreement. Immediately upon the execution of
this SETTLEMENT AGREEMENT by the parties hereto, Zwan will deliver to Xxxxx a
fully executed Stock Option Agreement in the form annexed hereto as Exhibit B.
3. Cash Payment. Digital will pay Xxxxx $500,000.00 for the attorneys'
fees purportedly incurred by
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Xxxxx in connection with Xxxxx I and Haney II. Such payment shall be made in two
equal installments by delivery of bank checks or other transfer of immediately
available funds on April 1, 1999, and July 1, 1999.
4. Dismissal of Xxxxx I and Xxxxx XX with Prejudice. Immediately upon
the execution of this SETTLEMENT AGREEMENT by the parties hereto: (a) Xxxxx and
Digital and Zwan shall cause their respective counsel to sign and exchange a
fully-executed stipulation for the dismissal of Xxxxx I with prejudice, in the
form annexed hereto as Exhibit C; (b) Xxxxx shall deliver to counsel for Digital
and Zwan a fully-executed stipulation for the dismissal of Haney II with
prejudice, in the form annexed hereto as Exhibit D; and (c) Xxxxx will take all
additional necessary steps to secure the prompt dismissal of each action with
prejudice.
5. Release. Immediately upon the execution of this SETTLEMENT AGREEMENT
by the parties hereto, Xxxxx, Great American Fun Corp. and Great American Fun
(HK) Ltd., on the one hand, and Zwan, Digital and Logical Magic, Inc., on the
other, will execute and deliver to each other a mutual general release, fully
executed in counterparts in the form annexed hereto as Exhibit E.
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6. This SETTLEMENT AGREEMENT shall be governed by and construed in
accordance with the laws of the State of Ohio.
7. All prior or contemporaneous agreements, contracts, promises,
representations and statements, if any, among the parties hereto and their
representatives as to the subject matter hereof are merged into this SETTLEMENT
AGREEMENT, and this SETTLEMENT AGREEMENT constitutes the entire agreement among
the parties with respect to its subject matter. This SETTLEMENT AGREEMENT may
not be modified, waived, changed, discharged or terminated, except by agreement
in writing signed by the party against whom or which such modification, waiver,
change, discharge or termination is sought to be enforced.
8. Except as specified in Paragraph 4 herein, nothing in this
SETTLEMENT AGREEMENT, whether expressed or implied, is intended to confer any
rights or remedies on any person other than the parties hereto and their
respective successors and assigns, nor is anything in this SETTLEMENT AGREEMENT
intended to relieve or discharge the obligations or liabilities of any third
parties to any party to this SETTLEMENT AGREEMENT, nor shall any provision of
this SETTLEMENT AGREEMENT give any third parties any right of subrogation or
action over or against any party to this SETTLEMENT AGREEMENT.
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9. The general rule that ambiguities are to be construed against the
drafter shall not apply to this SETTLEMENT AGREEMENT. In the event that any
language in this SETTLEMENT AGREEMENT is found or claimed to be ambiguous, each
party shall have the same opportunity to present evidence as to the actual
intent of the parties with respect to any such ambiguous language without any
inference or presumption being drawn against the drafter.
10. Each party represents and warrants that the signatory hereto has
full authority to enter into this SETTLEMENT AGREEMENT on behalf of that party
and the authority and capacity to bind that party thereto.
IN WITNESS HEREOF, Xxxxx, Zwan and, after having been duly authorized,
Digital have executed this SETTLEMENT AGREEMENT as of the date specified
hereinabove.
/s/ Xxxx Xxxxx Xxxxx
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XXXX XXXXX XXXXX
Sworn to before me and subscribed in my presence on November 13, 1998.
/s/ Xxxx X. Xxxx
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Notary Public
Attorney-at-Law
Lifetime Commission
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/s/ Xxxxx X. Xxxx
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XXXXX X. XXXX
Sworn to before me and subscribed in my presence on November 13, 1998.
/s/ Xxxx X. Xxxx
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Notary Public
Attorney-at-Law
Lifetime Commission
DIGITAL LIGHTWAVE, INC.
By /s/ Xxxxx X. Xxxx
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Title: Chief Executive Officer
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Sworn to before me and subscribed in my presence on November 13, 1998.
/s/ Xxxx X. Xxxx
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Notary Public
Attorney-at-Law
Lifetime Commission
