Exhibit 10.38
SETTLEMENT AGREEMENT AND
MUTUAL GENERAL RELEASE
BETWEEN
SBC COMMUNICATIONS INC.
AND
NETWORK ACCESS SOLUTIONS CORPORATION
This Settlement Agreement and Mutual General Release ("Agreement") is made
and entered into this 22nd day of December 2000 by and among SBC
Communications Inc. ("SBC")(1) and Network Access Solutions Corporation
("NAS")(2). SBC and NAS shall periodically be referred to herein
collectively as the "Parties."
RECITALS
WHEREAS SBC and NAS have entered into the Stock Purchase Agreement,
dated as of February 4, 2000 (including, without limitation, each
Attachment, Schedule, and the Summary Operating Agreement referred to in
the Stock Purchase Agreement or attached to the Stock Purchase Agreement)
(collectively the "Stock Purchase Agreement"); and
WHEREAS the Parties each dispute the effect, operation,
interpretation, scope, application and enforceability of the Stock Purchase
Agreement, including but not limited to each of the Parties' alleged
obligation to perform in connection with the Stock Purchase Agreement; and,
WHEREAS the Parties each respectively and mutually deny any obligation
to perform or continue to perform in accordance with terms and conditions
of the Stock Purchase Agreement and in accordance with any parole
agreements arising from the Stock Purchase Agreement; and,
WHEREAS the Parties each respectively and mutually deny any failure to
perform, breach, anticipatory breach, or other act, omission or other
conduct for with they might be liable one to the other arising out of the
Stock Purchase Agreement, and each Party wishes to avoid the time, expense,
vexation and uncertainties associated with litigation and arbitration; and
the Parties mutually acknowledge they are compromising unliquidated,
disputed and doubtful claims; and,
____________________
(1) SBC shall mean SBC Communications Inc., and its respective parents,
subsidiaries, affiliates, predecessors-in-interest, successors-in-interest,
insurers, indemnitors, officers, agents, representatives, and employees.
(2) NAS shall mean Network Access Solutions Corporation and its parents,
subsidiaries, affiliates, predecessors-in-interest, successors-in-interest,
insurers, indemnitors, officers, directors, agents, representatives, and
employees.
WHEREAS the Parties have agreed to compromise, waive, release, settle
and dismiss all complaints, actions, suits, arbitrations, claims, causes of
action, proceedings in equity or for extraordinary relief, administrative
or regulatory actions, collection, accounts, debts, sums of money, damages,
judgments, and demands in law or equity, arising from the matters that
involve disputes between the Parties arising out of or relating in any way
to acts, omissions or other conduct of the Parties relating to or arising
directly or indirectly out of the Stock Purchase Agreement, and in
consideration of those terms to execute the First Amendment to Stock
Purchase Agreement and other agreements between the parties and their
affiliates of even date herewith.
NOW THEREFORE, in consideration of the mutual covenants, conditions
and promises contained herein, and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the Parties
agree as follows:
1. NAS' General Release: SBC and NAS agree that all actions,
suits, arbitrations, complaints, claims, causes of action, proceedings in
equity or for extraordinary relief, administrative or regulatory actions,
collections, accounts, debts, sums of money, damages, judgments, and
demands in law or equity by NAS of whatever kind and nature, whether known
or unknown, or suspected or unsuspected, whether made by NAS directly,
representatively, derivatively or in any other capacity or which could have
been made or asserted by NAS, arising out of or relating in any way to
acts, omissions or other conduct of SBC relating to or arising directly or
indirectly out of the Stock Purchase Agreement shall be unconditionally
waived, released and forever discharged as to SBC; provided, however, that
NAS does not waive, release or discharge claims relating to the breach by
SBC of any of its obligations under the First Amendment to the Stock
Purchase Agreement after the date of this Settlement Agreement.
2. SBC's General Release: SBC and NAS agree that all actions,
suits, arbitrations, complaints, claims, causes of action, proceedings in
equity or for extraordinary relief, administrative or regulatory actions,
collections, accounts, debts, sums of money, damages, judgments, and
demands in law or equity by SBC of whatever kind and nature, whether known
or unknown, or suspected or unsuspected, whether made by SBC directly,
representatively, derivatively or in any other capacity or which could have
been made or asserted by SBC arising out of or relating in any way to acts,
omissions or other conduct of NAS relating to or arising directly or
indirectly out of the Stock Purchase Agreement shall be unconditionally
waived, released and forever discharged as to NAS; provided, however, that
SBC does not waive, release or discharge claims relating to the breach by
NAS of any of its obligations under the First Amendment to the Stock
Purchase Agreement after the date of this Settlement Agreement.
3. The Parties acknowledge and agree, in further consideration of their
mutual covenants, waivers and releases set forth herein, that the Parties
shall enter into the First Amendment to the Stock Purchase Agreement, and
shall be bound by the Stock Purchase Agreement as amended by the First
Amendment to Stock Purchase Agreement.
4. The Parties agree that this Agreement is, and shall be construed to be,
a covenant not to xxx or institute other legal, equitable, regulatory or
administrative proceedings by one Party against the other, and further
agree that these covenants are made to inure to the benefit of, and are to
be enforceable by, the respective Parties.
5. Each Party expressly warrants and represents to the other Party that it
has not assigned, pledged or otherwise in any manner whatsoever sold or
transferred, either by instrument in writing or otherwise, any right,
title, interest or claim which it has or may have arising from the Stock
Purchase Agreement.
6. The Parties intend that their mutual waivers and releases be as
comprehensive and broad as is legally permissible, and this Agreement be a
complete, final and determinative settlement of all matters in dispute
arising out of the Stock Purchase Agreement and any related parole
agreements. Each Party acknowledges it shall have no further recourse
against the other Party with respect to the Stock Purchase Agreement other
than claims that may arise as a result of a breach of the Stock Purchase
Agreement as amended by the First Amendment to the Stock Purchase Agreement
after the date hereof.
7. Other than as provided in or by reference to the First Amended Stock
Purchase Agreement, neither this Agreement nor any act or negotiations
undertaken or performed, or any document executed or referenced, in
furtherance of this Agreement or the settlement: (i) is, or shall be
deemed to be, or shall be used as an admission by or against the settling
Parties, or any of them; (ii) is, or shall be deemed to be, or shall be
used as evidence of an admission or concession of, any liability, fault, or
omission of or by any settling Party; (iii) shall be offered or received in
evidence in any action or proceeding by any party in any court, or before
any regulatory or administrative agency or other tribunal for any purpose
whatsoever other than to enforce the provisions of this Agreement, provided
the Parties may use this Agreement for any purpose in conjunction with
enforcement of any contractual, indemnity or other legal rights or claims
which the Parties, or any of them, may have against any person who is not a
Party.
8. The consideration set forth herein is material and not a mere recital.
9. Each Party expressly represents and warrants that no promise,
inducement or representation of any kind or character, whether oral or
written, has been made by the other Party or any other person acting for
the other Party, except as is expressly stated in this Agreement. Each
Party acknowledges it relies solely on its own knowledge, and judgment and
the advice of its legal counsel in executing this Agreement.
10. Authorization: Any individual signing this Agreement for or on behalf
of an entity other than a natural person does by said signature warrant
that he/she is duly authorized by said entity to undertake such action on
its behalf and that such signature is the valid and binding act of that
entity.
11. Miscellaneous:
a. This Agreement shall be construed in accordance with and governed
by the Laws of the State of Delaware, without regard to conflict of law
provisions.
b. The Parties agree that this Agreement and any other document
required or contemplated to be executed in order to consummate this
Agreement may be executed in one or more counterparts, each of which shall
be deemed an original agreement. All counterparts of any such document
together shall constitute one and the same instrument.
c. This Agreement sets forth the entire agreement between the parties
with respect to the matters referenced herein and supersedes any and all
prior agreements or understanding between the parties pertaining to the
subject matter hereof.
d. This Agreement may not be amended, altered, modified or waived, in
whole or in part, except in a writing executed by all the Parties to this
Agreement.
e. The failure of any Party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver
thereof or deprive that Party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement.
f. Counsel for the Parties have mutually contributed to the
preparation of this Agreement. Accordingly, this Agreement shall not be
construed against any Party, but shall be construed as if the Parties
jointly prepared this Agreement, and any uncertainty or ambiguity shall not
be interpreted against one Party.
12. Each Party shall bear its own costs and attorneys' fees incurred with
respect to this settlement.
13. If any provision of this Agreement is adjudicated to be invalid,
unenforceable or void for any reason whatsoever, each such provision shall
be severed from the remaining provisions and shall not affect the validity
or enforceability of such remaining provisions, but only to the extent that
giving effect to the remaining provisions hereof shall be in accordance
with the intent of the parties.
14. Dispute Resolution: The Parties shall attempt to promptly resolve any
Dispute by negotiation between the employees of each Party responsible for
implementing this Agreement. Any Party may provide another Party with a
Dispute Notice, which will set forth the nature of the dispute by
referencing, at a minimum, the provisions of this Agreement or the Stock
Purchase Agreement as modified by the First Amended Stock Purchase
Agreement and other documents at issue together with the particular act or
omissions at issue, and the identity of representatives of the complaining
Party who will attend settlement meetings. The Dispute Notice shall also
provide a statement of the noticing Party's proposed remedy to resolve the
dispute. After the receipt of a Dispute Notice, the representatives of the
affected Parties shall meet as soon as practicable at mutually acceptable
times and places.
14.1 Referral to Dispute Resolution Officers. If a Dispute has not been
resolved within thirty (30) days of the receipt of written notice, the
Dispute shall be referred to a senior executive designated by the
respective Parties for resolution. If they do not resolve the Dispute
within forty-five (45) days, either Party may refer the Dispute to
arbitration pursuant to Section 14.3.
14.2 Confidentiality of Negotiations. All negotiations pursuant to this
Section 14 shall be confidential and shall be treated as compromise and
settlement negotiations. Nothing said or disclosed, nor any document
produced, in the course of such negotiations which is not otherwise
independently discoverable, shall be offered or received as evidence or
used for impeachment or for any other purpose in any current or future
arbitration or litigation.
14.3 Arbitration. If either Party refers the Dispute to arbitration, the
Dispute shall be finally settled by binding arbitration in accordance with
the commercial arbitration rules of the American Arbitration Association
("AAA") then in effect. However, in all events, the arbitration provisions
in this Section 14 shall govern over any conflicting rules that may now or
hereafter be contained in the AAA rules. The arbitration shall be held in
New York, New York, unless the Parties mutually agree to have the
arbitration held elsewhere, and judgment upon any award made therein may be
entered by any court having jurisdiction over the award, over the
applicable Parties, or their respective assets; provided, however, that
nothing contained in this Section shall be construed to limit or preclude a
Party from bringing any action in any court of competent jurisdiction for
injunctive or other provisional relief in order to preserve the status quo
pending arbitration or otherwise in aid of the arbitration and intent of
this Section 14. The arbitrators shall have the authority to grant any
equitable and legal remedies that would be available in any judicial
proceeding instituted to resolve any Dispute hereunder.
14.4 Arbitrators. Any arbitration will be conducted before three (3)
arbitrators, one of whom shall be chosen by the complaining Party, one of
whom shall be chosen by the other Party, and the third of whom shall be
chosen by the other two arbitrators. The Parties may obtain lists of
candidates from their choice of the AAA, JAMS or both, for their respective
choices. If lists are obtained from both AAA and JAMS, the two arbitrators
chosen by the Parties shall choose the third arbitrator by reference to
both lists.
14.4.1 Each person on the list obtained from the AAA
and/or JAMS as a potential arbitrator shall be a neutral and impartial
party who has had training and experience as an arbitrator. The decision of
a majority of the arbitrators will be the decision of the arbitrators.
14.4.2 The arbitrators shall permit such discovery of
information related to the Dispute in arbitration as they shall determine
is appropriate in the circumstances, taking into account the needs of and
burdens on the Parties, the issues and facts in dispute, the importance of
the discovery to resolution of the dispute, the amount in controversy and
the desirability of making discovery expeditious and cost-effective; but,
in no event exceeding the scope and availability of discovery afforded
under the Rules of the AAA.
14.5 Costs and Fees. All fees and expenses of the arbitrators, expenses for
hearing facilities and other expenses of the arbitration shall be borne
equally by the Parties to the Dispute unless the arbitrators in the award
assess such fees and expenses in some other manner. Each Party shall bear
the fees and expenses of its own attorneys and witnesses except to the
extent otherwise provided in this Agreement or by law; provided, that if
the arbitrators determine that the claim or defense of any Party was
frivolous or lacked a reasonable basis in fact or law, the arbitrators may
assess against such Party all or part of the fees and expenses of attorneys
and witnesses for any other Party.
14.6 Burden of Proof. For any Dispute submitted to arbitration, the burden
of proof will be the same as if the claim were litigated in a judicial
proceeding under the laws of the State of Delaware.
14.7 Award. Upon the conclusion of any arbitration proceedings hereunder,
including requested post-submission briefing, the arbitrators will render
findings of fact and conclusions of law and a written opinion setting forth
the basis and reasons for any decision reached and will deliver such
documents to each Party to this Agreement along with a signed copy of the
award within thirty (30) days.
14.8 Agreement Controls. The arbitrators chosen in accordance with these
provisions will not have the power to alter, amend or otherwise affect the
terms of these arbitration provisions or the provisions of this Agreement.
[Signatures appear on following page]
Executed as of the 22nd day of December, 2000 by the Parties'
undersigned authorized representatives.
SBC COMMUNICATIONS INC. NETWORK ACCESS SOLUTIONS
CORPORATION
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxxxxx X. Xxxx
Name: Xxxxx X. Xxxxx Name: Xxxxxxxx X. Xxxx
Title: Senior Executive Vice Title: CEO
President - Corporate Development
