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AGREEMENT
THIS AGREEMENT (the "Agreement") is effective as of November 7, 1997, by
and between CompuServe Incorporated ("CompuServe") and TeleTech Teleservices,
Inc., and TeleTech Customer Care Management, Inc. (f/k/a TeleTech
Telecommunications, Inc.). TeleTech Teleservices, Inc. and TeleTech Customer
Care Management, Inc. are collectively referred to herein as "TeleTech." The
signatories to this Agreement are collectively referred to as the " Parties."
WITNESSETH
WHEREAS, on or about December 6, 1996, TeleTech instituted a lawsuit
against CompuServe in the United States District Court, Southern District of
Ohio, Eastern Division, and CompuServe has, in turn, filed certain
counterclaims in said action. Such lawsuit is captioned TeleTech Teleservices,
Inc., et al. v. CompuServe Incorporated, United States District Court, Southern
District of Ohio, Case No. C-2-96-1252 ("the Lawsuit").
WHEREAS, since July, 1997, the Parties have explored non-litigation
alternatives for resolving the Lawsuit and, in exploring such options, have
deferred discovery necessary to the pursuit and defense of the Lawsuit.
WHEREAS, CompuServe entered into an Agreement and Plan of Merger ("Merger
Agreement") with H&R Block, Inc. ("H&R Block"), H&R Block Group, Inc.,
WorldCom, Inc. ("WorldCom"), and Walnut Acquisition Company, L.L.C. under
which, among other things, CompuServe will be merged (the "Merger") into a
subsidiary of WorldCom. Under the Merger Agreement, H&R Block is not obligated
to indemnify any of the contracting parties to the Merger Agreement with
respect to the Lawsuit.
WHEREAS, because the Merger Agreement is executed but not closed and
because H&R Block is not indemnifying WorldCom for the Lawsuit, it is
impractical for the Parties to engage in further discussions about the non-
litigation resolution of the Lawsuit until it is determined whether or not the
Merger is actually consummated.
WHEREAS, the Parties wish to continue with their discussions related to
the nonlitigation resolution of the Lawsuit before devoting significant
resources to litigating the Lawsuit.
WHEREAS, the Parties are concerned, however, that, because the District
Court will likely schedule a trial date for the Lawsuit in early 1998 (the
"Trial Date") and will likely not be receptive to a continuance, the Parties
may not have sufficient time to complete discovery and other remaining pre-
trial preparation between the consummation of the Merger and the anticipated
Trial Date.
WHEREAS, as a result, the Parties believe that it is in their best
interests to dismiss the Lawsuit without prejudice, pursuant to Rule 41 of the
Federal Rules of Civil Procedure, and, if necessary, re-file it at a later time
so they will not be under the pressure of proceeding immediately with discovery
and other pre-trial preparation in anticipation of the Court potentially
setting a Trial Date in early 1998.
NOW, THEREFORE, for good and valuable consideration, the adequacy of which
is hereby acknowledged, the Parties agree and covenant as follows:
TERMS AND CONDITIONS
Section 1. Notice of Dismissal Without Prejudice. Within three (3)
business days of execution of this Agreement, the Parties shall file in the
Lawsuit a Notice of Dismissal Without Prejudice, pursuant to Rule 41 of the
Federal Rules of Civil Procedure, in the form attached hereto as Exhibit A,
which will result in the dismissal without prejudice of TeleTech's Second
Amended Complaint and CompuServe's Second Amended Counterclaims. Except as
specifically provided herein, the Notice of Dismissal Without Prejudice and
refiling of the Lawsuit shall not cause any loss of rights to any Party, create
any additional defense for any Party or prejudice any Party in any manner.
Section 2. Tolling of Limitation Period. From the date of the filing
of the Notice of Dismissal Without Prejudice through the earlier of the (a)
refiling of the Lawsuit or (b) November 9, 1998, there shall be, in all
Parties' favor, a tolling of all statute of limitations and all other time bars
of any nature whatsoever, whether in law or in equity, including but not
limited to defense of laches, equity, waiver, contractual limitation period and
all other defenses premised upon untimeliness, delay, or lack of notice, that
apply to any complaints, claims, counterclaims, causes of action or legal
proceedings asserted in the Lawsuit. Provided the Lawsuit is refiled on or
before November 9, 1998, all statute of limitations and other time bars shall
be calculated as if the refiled action (and any counterclaims thereto) was
filed on the filing date of the Lawsuit. Provided further, however, nothing
contained in this Agreement shall toll any statute of limitations or time bar
defense after the earlier of the (a) refiling of the Lawsuit or (b) November 9,
1998.
Section 3. Notice Prerequisite to Refiling. The Parties acknowledge
that, subject to the provisions of this Agreement, that all or any one of the
Parties may refile the Lawsuit at any time. Provided, however, TeleTech shall
not refile the Lawsuit, or initiate any other litigation based upon the
transactions or occurrences that are the subject matter of the Lawsuit, unless
it first provides CompuServe ten (10) calendar days advance notice, pursuant to
Section 8 herein, of its intentions to refile the Lawsuit or institute related
litigation. CompuServe shall not refile the Lawsuit, or initiate any other
litigation based upon the transaction or occurrences that are the subject
matter of the Lawsuit, unless it first provides TeleTech twenty (20) calendar
days advance notice, pursuant to Section 8 herein, of its intentions to refile
the Lawsuit or institute related litigation.
Section 4. Refiling In Federal or State Court. Any refiling of the
Lawsuit, or the filing of any claims or counterclaims based upon the
transactions or occurrences that are the subject matter of the Lawsuit, shall
be governed by the terms of section 13.5 of the parties' June 16, 1995
agreement entitled "Master Agreement Telemarketing Outsourcing Services Client
Services Agreement." The Parties agree that the trial calendar and all
scheduling matters for any refiled litigation shall be determined as if the
refiled litigation were an entirely new case and as if the Lawsuit had never
existed between the Parties. Neither Party shall use the former existence of
the Lawsuit to attempt to establish an early trial date or shorten the time
with respect to any other pre-trial matter in any refiled litigation.
Section 5. Copying of Documents. Upon reasonable notice and request,
CompuServe shall provide to TeleTech a copy of the xxxxx-stamped documents that
TeleTech produced in the Lawsuit. TeleTech shall be responsible for all costs
incidental to the copying of these documents.
Section 6. Discovery Produced In the Lawsuit.
6.1. Pending Discovery Motions. The Parties agree that upon the
filing of the Notice of Dismissal Without Prejudice all pending discovery
motions, orders, appeals, and disputes shall be rendered moot and void,
including but not limited to CompuServe's Motion For Default Judgment Pursuant
to Rule 37 of the Federal Rules of Civil Procedure, CompuServe's Objections to
the Magistrate Judge's July 2, 1997 Order, and the Magistrate Judge's July 2,
1997 Order.. Nothing herein shall preclude any Party from filing any discovery
motions that they or it may deem necessary in any refiled litigation or
responding with any necessary defense to said motions, so long as the basis for
any such motion(s) or defense is not premised upon any alleged delays in
production; improper withholding of documents; discovery disputes; any
discovery requests, answers or responses thereto; and/or any discovery orders
issued in the Lawsuit.
6.2. Use of Existing Discovery in Refiled Litigation. Except for (a)
deposition testimony which has been taken and transcribed in the Lawsuit and
(b) documents previously actually produced, pursuant to Rule 34 of the Federal
Rules of Civil Procedure, all discovery which has been propounded (including
but not limited to any responses and answers to interrogatories, requests for
admission, document requests and other discovery) in the Lawsuit shall be
deemed to be void and inadmissible, as if they were never in existence.
Nothing herein shall prohibit any Party from conducting discovery in any
refiled litigation that was previously conducted or sought in the Lawsuit.
Section 7. Confidentiality and Protective Order. The Stipulation and
Protective Order Governing Confidential Material issued by the Court on April
23, 1997 shall remain effective through and including the later of (a) the
termination of any refiled litigation and (b) November 9, 1998. If no
litigation is refiled by November 9, 1998, all Confidential Discovery Material
(as defined in the April 23, 1997 Order) shall be returned to the producing
party or, in the alternative, destroyed and certified to the producing party to
have been destroyed.
Section 8. Notices. All notices required herein shall be in writing
and shall be effective upon receipt when delivered in person or by facsimile
transmission:
If to CompuServe:
Xxxxxx X. Xxxxxx, Xx., Esq.
Xxxxxx & Xxxxxxxxx
00 Xxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxx 00000
Fax No.: (000) 000-0000
and
c/o General Counsel
CompuServe Incorporated
0000 Xxxxxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxx 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
If to TeleTech:
Xxxxxx X. Xxxxxxxxx, III, Esq.
Berman, Blanchard, Xxxxxxx & Xxxxxx
0000 Xxxxxxxx Xxxx., Xxxxx 000
Xxx Xxxxxxx, XX 00000-0000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
and
Xxxx X. Xxxxxx, Esq.
Buckingham, Xxxxxxxxx & Xxxxxxxxx
00 X. Xxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Fax No.: (000) 000-0000
All form of notices set forth above shall be contemporaneously accompanied by a
telephonic notice to, if by Teletech, to Xxxxxx X. Xxxxxx, Xx., and, if by
CompuServe, to Xxxxxx Xxxxxxxxx. Any Party may give notice of a change of
address, telephone number or fax number by providing notice in the manner set
forth above.
Section 9. Miscellaneous.
9.1. Entire Agreement. This Agreement sets forth the entire
understanding among the Parties concerning the subject matter of this
Agreement, and incorporates all prior negotiations and understandings, but
shall not affect any other agreement or contract between the Parties that does
not relate to the Notice of Dismissal Without Prejudice or the refiling of the
Lawsuit. No covenants, promises, agreements, conditions or understandings,
either oral or written, exist between the Parties relating to the subject
matter of this Agreement other than those set forth herein. No alteration,
amendment, or change to this Agreement shall be binding upon any party hereto
unless in writing, and signed by all Parties.
9.2. Counterparts. This Agreement may be executed in any number of
counterparts, all of which shall constitute one and the same instrument, and
any party hereto may execute this Agreement by signing one or more
counterparts.
9.3. Joint Preparation. This Agreement is to be deemed to have been
prepared jointly by the Parties. Any uncertainty or ambiguity existing herein
shall not be interpreted against any party.
9.4. Counsel. Each of the Parties hereby represents and warrants
that they are executing this Agreement after having received legal advice as to
their rights from their respective legal counsel.
9.5. Governing Law. This Agreement shall be construed in accordance
with the laws of the State of Ohio.
9.6. No Admission. This Agreement is entered into by the Parties
solely for the purpose of effectuating dismissal without prejudice of the
Lawsuit. This Agreement does not constitute, nor shall it be construed as, an
admission by any Party of the truth or validity of any claims or contentions
asserted by any other Party or as a ratification of any past conduct by any
other Party, or as a waiver of any rights previously asserted. Neither this
Agreement nor any discussion occurring to or in contemplation of this Agreement
shall be admissible in evidence in any action, except as necessary to enforce
its terms.
9.7. Authority to Execute. Each Party hereto represents and warrants
on its own behalf that the individual signing this Agreement on its behalf is
fully authorized to sign on behalf of and bind it, and that it has the power
and authority to enter into this Agreement.
9.8. Further Acts. Each Party agrees to take such further acts and
execute such further documents that are reasonably necessary to carry out the
terms and conditions and intent of this Agreement.
9.9. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the Parties hereto, and each of them, and each and
all of their representatives, officers, directors, shareholders, partners,
successors, assigns, employees and agents.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the date
first above written.
WITNESSES:
TELETECH TELESERVICES, INC.
/s/ Xxxxxx X. Xxxxxxxxx XX By:/s/ Xxxxxx X. Xxxxxxxxxx
___________________ Its: Executive Vice President and Chief
Operating Officer
TELETECH CUSTOMER CARE
MANAGEMENT, INC.
___________________ By:/s/ Xxxxxx X. Xxxxxxxxxx
___________________ Its: Executive Vice President and Chief
Operating Officer
COMPUSERVE INCORPORATED
/s/ Xxxxxx Xxxxx By:/s/ Xxxxxxx X. Xxxxxx
___________________ Its: Assistant Secretary
