CONFIDENTIAL FINAL SETTLEMENT AGREEMENT
Exhibit
10.18
CONFIDENTIAL
FINAL SETTLEMENT AGREEMENT
This
Confidential Final Settlement Agreement and Mutual Release (“Final Settlement
Agreement”) is made and entered into on October 9, 2006, by and among American
Interbanc Mortgage, LLC (“American Interbanc”) and Bankrate, Inc. (“Bankrate”),
and in light of the following facts:
A. American
Interbanc brought Case No. 02 CC 04857 in the Superior Court for the State
of
California, County of Orange, against Bankrate and other defendants (the
“Action”). Bankrate has filed answers denying all claims asserted by American
Interbanc in the Action and asserting various affirmative defenses.
B. The
parties hereto, without either side admitting liability, or admitting the
allegations made by the other, have agreed to settle the Action, on the terms
set forth in this Final Settlement Agreement.
C. This
Final Settlement Agreement restates and supercedes the parties’ settlement
discussions and reflects the final terms by which the parties have agreed to
settle the Action.
Now
therefore, the undersigned parties agree as follows:
| 1) |
Cash
Settlement Amount.
|
Bankrate
shall pay American Interbanc cash in the amount of Three Million Dollars
($3,000,000.00) (“Cash Settlement Amount”) within five (5) calendar days
following Bankrate’s receipt of the original of this Final Settlement Agreement
and the original of the request for dismissal with prejudice and without costs
referenced in Paragraph 2(a) below, both of which are executed by American
Interbanc and its counsel. Payment shall be made by wire transfer pursuant
to
the following instructions:
Union
Bank of CA aba # 000000000
Credit
to
American Interbanc Mortgage, LLC account # 0392005815
| 2) |
Dismissal
of Action with Prejudice.
|
(a) Concurrently
with American Interbanc’s transmission to Bankrate’s counsel of the original of
this Final Settlement Agreement that is executed by American Interbanc and
its
counsel, American Interbanc will transmit to Bankrate’s counsel a fully executed
original request for dismissal of the Action as to Bankrate with prejudice
and
without costs. American Interbanc agrees that Bankrate may file the request
for
dismissal with the Court on American Interbanc’s behalf, and Bankrate agrees
that it will not file the request for dismissal until after Bankrate has wire
transferred the Cash Settlement Amount.
(b) The
parties agree that each party is to bear its own attorneys’ fees and costs with
respect to and in any way relating to the Action. The parties further agree
that
each party is to bear its own attorneys’ fees and costs with respect to the
dismissal of the Action with prejudice.
(c) The
parties agree that, subject to the provisions of this Final Settlement
Agreement, each party is responsible for its own tax obligations, if any,
arising from the Final Settlement Agreement and payments made pursuant to the
Final Settlement Agreement.
(d) Bankrate
shall produce at least one witness at trial in the Action without the need
for a
subpoena, primarily for the purpose of authenticating documents.
| 3) |
Advertising
Agreement.
|
Bankrate
shall allow American Interbanc to post rates on the mortgage tables on
xxx.xxxxxxxx.xxx
upon
American Interbanc’s execution of the attached Exhibit A to Advertising Terms
and Conditions.
| 4) |
Good
Faith Settlement.
|
American
Interbanc, Bankrate, and their attorneys of record agree that this Final
Settlement Agreement is in good faith. American Interbanc, Bankrate, and their
attorneys of record further agree that Bankrate, by and through its attorneys
of
record, shall file with the Court a motion to obtain the Court’s determination
that this Final Settlement Agreement is in good faith, and American Interbanc
agrees that it shall join in such motion or file such papers, as directed by
Bankrate, to obtain the Court’s determination that this Final Settlement
Agreement is in good faith. American Interbanc and Bankrate agree that the
consideration provided by Bankrate to American Interbanc under this Final
Settlement Agreement shall be allocated equally amongst the false advertising
and antitrust causes of action brought against Bankrate. This foregoing
statement and allocation are made solely for purposes of the motion to obtain
the Court’s determination that this Final Settlement Agreement is in good faith
and are subject to Paragraph 7 of this Final Settlement Agreement.
| 5) |
Release
of Bankrate by American Interbanc.
|
Except
for the obligations contained in this Final Settlement Agreement and Exhibit
A
to Advertising Terms and Conditions, American Interbanc, on behalf of itself,
its subsidiaries, affiliates (including any corporation, partnership, limited
liability company, fictitious business entity, dba or other business entity),
divisions, departments, officers, directors, partners, shareholders, members,
investors, owners, agents, attorneys, representatives, employees, assignors,
servants, predecessors, successors and assigns (collectively “the American
Interbanc Releasors”), in consideration of the promises and undertakings herein
expressed, and for other valuable consideration, the sufficiency of which is
hereby acknowledged and confessed, hereby release, extinguish, acquit and
forever discharge Bankrate and its subsidiaries, affiliates (including any
corporation, partnership, limited liability company, fictitious business entity,
dba or any other business entity), divisions, departments, officers, directors,
partners, shareholders, members, investors, owners, agents, attorneys,
representatives, employees, assignors, servants, predecessors, successors,
and
assigns (collectively “the Bankrate Releasees”) from any and all present and
future payment obligations, adjustments, executions, offsets, actions, causes
of
action, suits, debts, sums of money, accounts, reckonings, bonds, bills,
covenants, contracts, controversies, agreements, promises, damages, expenses
(including but not limited to court costs and attorney’s fees), judgments,
demands, claims, liabilities and/or losses whatsoever, whether known or unknown,
claimed, suspected or unsuspected, fixed or contingent against the Bankrate
Releasees which the American Interbanc Releasors ever had, now have, or may
in
the future have against the Bankrate Releasees with respect to, arising out
of
or related to the Action and/or the facts and circumstances surrounding the
Action, whether known or unknown. The American Interbanc Releasors acknowledge
and understand that they are waiving claims, both known and unknown, and that
there may be facts that affect their claims that are unknown to them or that
are
different from what they now understand. It is expressly understood and agreed
by the American Interbanc Releasors that they waive with respect to the claims
released herein all benefits and rights, which the American Interbanc Releasors
may now have or in the future may have under and by virtue of the terms of
Section 1542 of the Civil Code of the State of California, which section reads
as follows:
“A
general release does not extend to claims which the creditor does not know
or
suspect to exist in his favor at the time of executing the release, which if
known by him must have materially affected his settlement with the
debtor.”
| 6) |
Release
of American Interbanc by Bankrate.
|
Except
for the obligations contained in this Final Settlement Agreement and Exhibit
A
to Advertising Terms and Conditions, Bankrate, on behalf of itself, its
subsidiaries, affiliates (including any corporation, partnership, limited
liability company, fictitious business entity, dba or other business entity),
divisions, departments, officers, directors, partners, shareholders, members,
investors, owners, agents, attorneys, representatives, employees, assignors,
servants, predecessors, successors and assigns (collectively “the Bankrate
Releasors”), in consideration of the promises and undertakings herein expressed,
and for other valuable consideration, the sufficiency of which is hereby
acknowledged and confessed, hereby release, extinguish, acquit and forever
discharge American Interbanc and each of its subsidiaries, affiliates (including
any corporation, partnership, limited liability company, fictitious business
entity, dba or other business entity), divisions, departments, officers,
directors, partners, shareholders, members, investors, owners, agents,
attorneys, representatives, employees, assignors, servants, predecessors,
successors and assigns (collectively “the American Interbanc Releasees”) from
any and all present and future payment obligations, adjustments, executions,
offsets, actions, causes of action, suits, debts, sums of money, accounts,
reckonings, bonds, bills, covenants, contracts, controversies, agreements,
promises, damages, expenses (including but not limited to court costs and
attorney’s fees), judgments, demands, claims, liabilities and/or losses
whatsoever, whether known or unknown, claimed, suspected or unsuspected, fixed
or contingent against the American Interbanc Releasees which the Bankrate
Releasors ever had, now have, or may in the future have against the American
Interbanc Releasees with respect to, arising out of or related to the Action
and/or the facts and circumstances surrounding the Action, whether known or
unknown. The Bankrate Releasors acknowledge and understand that they are waiving
claims, both known and unknown, and that there may be facts that affect their
claims that are unknown to them or that are different from what they now
understand. It is expressly understood and agreed by the Bankrate Releasors
that
they waive with respect to the claims released herein all benefits and rights,
which the Bankrate Releasors may now have or in the future may have under and
by
virtue of the terms of Section 1542 of the Civil Code of the State of
California, which section reads as follows:
“A
general release does not extend to claims which the creditor does not know
or
suspect to exist in his favor at the time of executing the release, which if
known by him must have materially affected his settlement with the
debtor.”
| 7) |
No
Admission.
|
Nothing
herein is intended or may be deemed as an admission by any party as to the
merit
or lack of merit of the Action, including any claim or defense asserted therein.
This Final Settlement Agreement, and any statement, transaction or proceeding
in
connection with the negotiation of this Final Settlement Agreement shall not
be
deemed as or construed to be an admission by any party of any act, matter,
proposition of merit or lack of merit of any claim or defense, and shall not
be
mentioned, referred to, offered into evidence or used in any manner or for
any
purpose, except in a proceeding to enforce the terms hereof under Paragraph
9
hereto.
| 8) |
Confidentiality.
|
(a) American
Interbanc, Bankrate, and their attorneys of record agree that this Final
Settlement Agreement shall remain confidential as between them, and they agree
that this Final Settlement Agreement and its terms shall not be disclosed to any
other person. Without limiting the generality of any of the foregoing of this
Paragraph 8(a), the parties will not issue any press release, make any comment
to the press, respond to or in any way participate in or contribute to any
public discussion, notice or other publicity concerning, or in any way relating
to, the Action, this Final Settlement Agreement, or the events (including any
negotiations) that led to the execution of this Final Settlement
Agreement.
(b) Notwithstanding
Paragraph 8(a), Bankrate may make statements concerning the Action, or disclose
this Final Settlement Agreement or its terms, as Bankrate is required to do,
in
its discretion, in order to comply with any and all of its disclosure
obligations as a public company.
(c) Notwithstanding
Paragraph 8(a), Bankrate and American Interbanc may disclose this Final
Settlement Agreement or its terms in a Court filing, or at oral argument, to
the
extent such disclosure is required to support the motion to obtain the Court’s
determination that this Final Settlement Agreement is in good faith, as provided
in Paragraph 3 above. Upon receipt of a fully executed copy of this Final
Settlement Agreement from American Interbanc and its counsel, Bankrate agrees
to
file a notice of settlement with the Court, advising all parties of solely
the
fact of this settlement. American Interbanc and Bankrate further agree that
either party may notify any other party to the Action of the fact of the
settlement without disclosing its terms.
(d) Notwithstanding
Paragraph 8(a), a party may disclose the terms of this Final Settlement
Agreement to attorneys, professional accountants and tax advisers, but only
such
portion as essential for the provision of such legal, professional accounting
or
tax services and only if either (i) before such disclosure is made, the person
or entity that will be receiving the disclosure is informed in writing of and
agrees in writing to be bound by this confidentiality provision, or (ii) the
person or entity that will be receiving the disclosure is under a preexisting
obligation of confidentiality comprehensive enough to encompass the
confidentiality obligations of Paragraph 8 of this Final Settlement Agreement
and is informed of the terms of this Final Settlement Agreement in a fashion
that would bring such person or entity under such preexisting obligation of
confidentiality.
(e) Nothing
in Paragraph 8 shall be construed to preclude any party or its counsel from
complying with a lawful court order requiring disclosure of this Final
Settlement Agreement or any of its terms and conditions, provided that a party
to this Final Settlement Agreement who has been served with a court order,
subpoena, discovery request, or other legal process demanding or otherwise
requesting disclosure of this Final Settlement Agreement or any of its terms
and
conditions, (i) provide immediate written notice to the other party to this
Final Settlement Agreement and its counsel of the subpoena, discovery request,
or other legal process, (ii) assert all defenses to disclosure and oppose such
disclosure to the full extent permitted by law, and (iii) cooperate fully with
and support through all reasonable means the efforts of the other party to
oppose any such disclosure.
(f) In
furtherance of Paragraph 8(e) above, either party may disclose the existence
of
this Final Settlement Agreement, without disclosing its terms, and the nature
of
this confidentiality provision in this Paragraph 8 for the purpose of asserting
the confidential nature of the parties’ agreement and protecting the
confidentiality of the agreed-upon terms.
| 9) |
Enforcement
of Final Settlement Agreement.
|
Any
dispute concerning the interpretation or enforcement of this Final Settlement
Agreement, including any action by a party to recover damages or other relief
for a violation of this Final Settlement Agreement, shall be submitted for
binding arbitration in Orange County, California before a mutually agreeable
arbitrator, or, in the absence of such agreement, an arbitrator selected under
JAMS procedures. The JAMS Comprehensive Arbitration Rules shall apply in the
arbitration. The Arbitrator shall award the prevailing party in any arbitration
pursuant to this Paragraph its reasonable attorneys’ fees and
costs.
| 10) |
Reaffirmation
of Obligations Under the Stipulated Protective Order.
|
The
parties hereby acknowledge and reaffirm their obligations under the Court’s May
29, 2003 Stipulated Protective Order Re Discovery, and in particular, the
provisions of Paragraph 15 of that Order, which provides (as modified in redline
below):
Within
sixty (60) calendar days of the final termination of the entire action as to
all
parties, all Confidential Material, all Confidential Material Restricted to
Outside Counsel Only and all copies thereof shall be returned to the producing
party or third party or shall be destroyed. If material is destroyed, a
Certification of Destruction signed by counsel shall be provided to the
producing party or third party within ten (10) calendar days of the destruction
of the material. Notwithstanding the foregoing, one designated outside
litigation counsel of record for each party may maintain in its files one copy
of each affidavit, affirmation, certification, declaration, brief, record on
appeal, notice of motion, deposition transcript exhibit to a deposition or
affidavit, exhibit at a hearing or trial, pleading, discovery request,
stipulation, correspondence between counsel for the parties to this action,
written response to a discovery request, document filed with the Court, and
court transcript in this action, consisting of or containing Confidential
Material or Confidential Material Restricted to Outside Counsel
Only.
| 11) |
Agreement
to be Governed by California Law.
|
This
Final Settlement Agreement shall be governed by and construed in accordance
with
the internal laws of the State of California applicable to contracts entered
into and wholly performed within said state.
| 12) |
No
Further Obligations.
|
Except
for the obligations created by this Final Settlement Agreement and Exhibit
A to
Advertising Terms and Conditions, American Interbanc and Bankrate have no
further obligations to each other.
| 13) |
Severability.
|
American
Interbanc and Bankrate agree that if any provision of this Final Settlement
Agreement or application thereof is held to be invalid or if any party hereto
is
found to be in breach of any provision of this Final Settlement Agreement,
the
invalidity and/or breach shall not affect other provisions or applications
of
this Final Settlement Agreement which shall be enforceable and given effect.
To
this end, the provisions of this Final Settlement Agreement are
severable.
| 14) |
Consultation
with Counsel.
|
American
Interbanc and Bankrate acknowledge and represent that they have consulted with
legal counsel before effecting this settlement and executing this Final
Settlement Agreement and that they understand its meaning, including the effect
of Section 1542 of the California Civil Code, and expressly agree that this
Final Settlement Agreement shall be given full force and effect according to
each and all of its express terms and provisions, including those relating
to
the release of unknown and unsuspected claims, demands, and causes of
action.
| 15) |
Counterparts.
|
The
Final
Settlement Agreement may be executed in one or more counterparts. All executed
counterparts and each of them shall be deemed to be one and the same instrument.
Signature pages transmitted by telecopier or in the form of a PDF shall be
deemed to be original signature pages.
| 16) |
Contractual
Authority.
|
Each
party represents and warrants that the individual signing this Final Settlement
Agreement on its behalf is fully authorized to sign on behalf of and bind such
entity, and that such entity has the power and authority to enter into this
Final Settlement Agreement, and also represents and warrants that such entity
has not assigned, encumbered, or transferred, or purported to assign, encumber,
or transfer, to any person or other entity, voluntarily or involuntarily, any
claims, demands, debts, accounts, liabilities, contractual rights or other
rights, of any nature whatsoever, released herein. Each party shall indemnify
and hold harmless each other party from and against and with respect to any
claims, actions, demands, suits, costs, and causes of action, including for
attorney’s fees and costs, due to, based upon, or arising as a result of any
breach of any representation or warranty in this Paragraph.
| 17) |
Entire
Agreement.
|
This
Final Settlement Agreement and Exhibit A to Advertising Terms and Conditions
constitutes the entire agreement between the parties, is binding on all parties
who have signed it and is enforceable. No parol evidence of any promise or
inducement not set forth herein shall be admissible in any proceeding relating
to this Final Settlement Agreement. All parties affirm that this Final
Settlement Agreement is admissible in the arbitration proceedings provided
for
in Paragraph 9 above, California Evidence Code § 1123, although the
confidentiality terms of Paragraph 8 shall still apply, except as to the
arbitrator.
| 18) |
This
Final Settlement Agreement Is Controlling.
|
The
parties agree that the terms of this Final Settlement Agreement shall be
controlling in the event of any conflict between the provisions of this Final
Settlement Agreement and Bankrate’s Standard Terms and Conditions and Insertion
Orders, as amended from time to time by Bankrate.
| 19) |
Modification
and Amendment.
|
No
modification or amendment of any of the terms or provisions of this Final
Settlement Agreement shall be binding upon any party to this Final Settlement
Agreement unless made in writing and signed by such party or by a duly
authorized representative or agent of such party.
| Dated: 10/10/06 | BANKRATE, INC. | |
| |
|
|
| By: | /s/ Xxxxxx X. Xxxxx | |
|
Name:
Xxxxxx
X. Xxxxx
Title: Chief
Executive Officer and
President
of Bankrate,
Inc.
|
||
| Dated: 10/9/06 | AMERICAN INTERBANC MORTGAGE, LLC | |
| |
|
|
| By: | /s/ Xxxx Xxxxxxx Xxxxxxxx | |
|
Name:
Xxxx
Xxxxxxx Xxxxxxxxx
Title: President
of American Interbanc
Mortgage,
Inc., Managing
Member
of American Interbanc
Mortgage
LLC
|
||
APPROVED
AS TO FORM:
XXXXXX,
XXXX & XXXXXXXX LLP
| By: /s/ Xxxxxxx X. Xxxxxxx | |||
|
Xxxxxxx
X. Xxxxxxx, Esq.
Attorneys
for American Interbanc Mortgage, LLC
|
LAW
OFFICES OF XXXX X. XXXXXXXXX
| By: /s/ Xxxx X. Xxxxxxxxx | |||
|
Xxxx
X. Xxxxxxxxx, Esq.
Attorneys
for American Interbanc Mortgage, LLC
|
O’MELVENY
& XXXXX, LLP
| By: /s/ Xxxxxxxxx X. Xxxxxxxx | |||
|
Xxxxxxxxx
X. Xxxxxxxx, Esq.
Attorneys
for Bankrate, Inc.
|
